Javier Ponce Castellon v. United States of America, No. 8:2017cv00917 - Document 52 (C.D. Cal. 2023)
Court Description: ORDER GRANTING MOTION TO DISMISS by Judge Dean D. Pregerson: The governments Motion to Dismiss is GRANTED. Petitioners Amended Motion (Dkt. 43), whichthis Court construes as his initial motion, is DISMISSED. IT IS SO ORDERED.(MD JS-6. Case Terminated) (shb)
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Javier Ponce Castellon v. United States of America Doc. 52 1 2 O 3 4 JS-6 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 Plaintiff, 13 14 v. JAVIER PONCE CASTELLON, 15 Defendants. ) ) ) ) ) ) ) ) ) ) Case No. SACV 17-00917 DDP [CR 98-00143 DDP] ORDER GRANTING MOTION TO DISMISS 16 17 Presently before the court is the government’s Motion to 18 Dismiss Defendant’s Motion for Relief Pursuant to 28 U.S.C. § 2255. 19 Having considered the submissions of the parties, the court grants 20 the motion and adopts the following Order. 21 I. Background 22 Petitioner Javier Ponce Castellon (“Petitioner”) was a leader 23 of a drug trafficking organization headed by his brother, Jose 24 Ponce Castellon (“Jose”). 25 his brother of multiple drug trafficking offenses. 26 another judge of this Court sentenced Petitioner to 360 months 27 imprisonment, followed by five years of supervised release. 28 Petitioner and his brother, Jose, filed separate appeals that same In 2000, a jury convicted Petitioner and In 2002, Dockets.Justia.com 1 2 day. 8:98-cr-00143, Dkt. 636, 632. In October 2003, the Ninth Circuit affirmed Jose’s conviction 3 and sentence. 4 Cir. 2003). 5 United States v. Castellon, 80 F. App’x 562 (9th Petitioner’s appeal remained pending. On January 3, 2005, Jose filed a § 2255 petition. 6 8:98-cr-00143, Dkt. 659. 7 incorrectly identified the document as “Motion filed by Javier 8 Ponce Castellon.”1 9 correctly listed Petitioner’s brother, Jose, as the filing party. Id. The court’s docket entry, however, The caption of the document itself 10 The next docket entry ordered the government to file a response “as 11 to Jose Castellon Ponce.” 12 government’s opposition, however, like the initial Petition, was 13 docketed as an Opposition “as to Javier Ponce Castellon,” even 14 though the document itself correctly listed Jose on the caption. 15 8:98-cr-00143, Dkt. 661. 16 docketed as pertaining to Jose. 17 8:98-cr-00143, Dkt. 663. 18 petition in May 2005, as correctly reflected on the docket “as to 19 Jose Castellon Ponce.” 20 period, Petitioner’s appeal remained pending before the Ninth 21 Circuit. 22 8:98-cr-00143, Dkt. 660. The A government surreply was correctly 8:98-cr-00143, Dkt. 636, Ultimately, the court denied Jose’s 8:98-cr-00143, Dkt. 664. Throughout this The underlying criminal case was then reassigned to the 23 undersigned. 24 Ninth Circuit resolved Petitioner’s appeal and affirmed his 25 conviction, observing that Petitioner “raise[d] several arguments 26 that are essentially the same as those that were raised and 8:98-cr-00143, Dkt. 670. Shortly thereafter, the 27 28 1 All emphasis in docket descriptions herein are added. 2 1 rejected in his brother’s appeal arising from the same trial.” 2 United States v. Castellon, 135 F. App’x 122, 124 (9th Cir. 2005). 3 The court granted, however, a limited Ameline remand for 4 resentencing. 5 Petitioner to a term of 360 months, followed by five years of 6 supervised release. 7 Id. In March 2006, this Court resentenced 8:98-cr-00143, Dkt. 664. Approximately eight years later, Petitioner filed a “Motion to 8 Reconsider and Reopen,” the first of a flurry of filings over the 9 following years. Those filings, including a 2255 motion, a motion 10 to supplement and amend, a motion for an extension of time to 11 amend, a motion to reduce sentence, and other motions, are 12 described in greater detail in this Court’s prior Order. 13 As pertinent here, the Ninth Circuit concluded that Petitioner’s 14 initial Motion to Reopen should have been construed as a 2255 15 motion. United States v. Castellon, 688 F. App’x 464 (9th Cir. 16 2017). 17 section 2255 habeas, Castellon’s motion appears to be untimely. Any 18 such finding, however, cannot be made until the district court 19 follows the procedures set forth in Castro v. United States, 540 20 U.S. 375, 383.” 21 Dkt. 42. The court further observed that, “[r]echaracterized as a Id. at n.1. Accordingly, this Court granted Petitioner leave to file an 22 Amended 2255 petition, with instructions that Petitioner’s filing 23 would be construed as an initial 2255 motion. 24 proceeded to file an amended motion. 25 moves to dismiss the amended motion as untimely. Dkt. 42. Dkt. 43. Petitioner The government now Dkt. 45. 26 II. 27 In general, a 2255 motion must be filed within one year of the 28 Discussion date on which a conviction becomes final. 3 28 U.S.C. § 2255(f)(1). 1 Here, although the government concedes that Petitioner’s latest 2 2255 motion relates back to the date of Petitioner’s initial 3 “Motion to Reopen,” there is no dispute that Petitioner did not 4 file that initial motion until approximately eight years after his 5 conviction because final, following resentencing. 6 also no dispute that Petitioner does not fall within the one-year 7 limitations period prescribed by section 2255(f)(1).2 8 9 Thus, there is Petitioner contends, however, that he is entitled to equitable tolling. A § 2255 movant is entitled to equitable tolling “only if 10 he shows (1) that he has been pursuing his rights diligently, and 11 (2) that some extraordinary circumstance stood in his way and 12 prevented timely filing.” 13 889 (9th Cir. 2011) (internal quotation marks omitted). 14 attempts to satisfy both of these requirements by claiming that the 15 court’s docketing error, which erroneously described Jose’s January 16 2005 motion as having been filed by Petitioner, led Petitioner to 17 believe that he himself had filed a 2255 motion, which he believed 18 was pending for approximately eight years before he then filed his 19 “Motion to Reopen.” 20 United States v. Buckles, 647 F.3d 883, This argument is not persuasive. Petitioner As an initial matter, 21 although the docket did twice mis-identify the motion as pertaining 22 to Petitioner rather than Jose, the documents themselves clearly 23 list Jose’s name on the caption, pertain to Jose, and were filed by 24 Jose’s counsel. 25 sheet available to him, he cannot credibly claim that he did not 26 know whether he himself had filed a motion on his own behalf. Even assuming that Petitioner only had the docket Nor, 27 2 28 As discussed above, the Ninth Circuit has already suggested that Petitioner’s motion appears to be untimely. 4 1 having participated in an eleven-day jury trial while represented 2 by counsel necessarily distinct from Jose’s separate counsel, can 3 Petitioner reasonably assert that he thought Jose’s separate 4 counsel filed a 2255 motion on Petitioner’s behalf. 5 court’s orders “as to Jose Castellon Ponce,” including the denial 6 of the 2255 motion, would make little sense if, as Petitioner now 7 contends he believed, that motion had been filed on Petitioner’s 8 behalf, rather than Jose’s. 9 certainly have caused some degree of confusion, no reasonably Moreover, the Although the docketing errors could 10 diligent defendant would wait eight-years before attempting to 11 resolve any ambiguity. 12 Furthermore, Jose’s mis-docketed 2255 motion was filed in 13 January 2005, while Petitioner’s own appeal was still pending. 14 “[F]ederal prisoners must exhaust appellate review prior to filing 15 for habeas relief in the district court.” 16 LaFromboise, 427 F.3d 680, 686 (9th Cir. 2005); see also Feldman v. 17 Henman, 815 F.2d 1318, 1321 (9th Cir. 1987). 18 could not, therefore, have been filed on Petitioner’s behalf in 19 January 2005. 20 United States, No. 14-CR-277-GPC, 2019 WL 446244, at *2 (S.D. Cal. 21 Feb. 5, 2019); United States v. Descamps, No. CR-05-104-FVS, 2011 22 WL 1259840, at *1 (E.D. Wash. Apr. 1, 2011). 23 Petitioner’s unsupported assertion that his own trial counsel 24 mistakenly believed that the January 2005 filing pertained to 25 Petitioner strains credulity.3 This rule is well-settled. United States v. A viable 2255 motion See, e.g., Fernandez v. Accordingly, 26 3 27 28 It is unclear whether Petitioner asserts that his own counsel mistakenly (A) remembered filing a 2255 motion on Petitioner’s behalf, (B) believed Petitioner filed the motion pro (continued...) 5 1 Because Petitioner has not shown that he is entitled to 2 equitable tolling, his 2255 motion is untimely, and must be 3 dismissed. 4 III. Conclusion 5 For the reasons stated above, the government’s Motion to 6 Dismiss is GRANTED. 7 this Court construes as his initial motion, is DISMISSED. 8 IT IS SO ORDERED. Petitioner’s Amended Motion (Dkt. 43), which 9 10 Dated: June 12, 2023 DEAN D. PREGERSON United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 (...continued) se, or (C) thought Jose’s counsel somehow filed the motion on Petitioner’s behalf. Any of these possibilities, however, would have run afoul of the exhaustion requirement, of which counsel, who filed Petitioner’s notice of appeal, was presumably aware. 6
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