Reyes-Sotero v. USA - 2255, No. 8:2012cv01036 - Document 2 (D. Md. 2012)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 12/21/2012. (rss, Deputy Clerk)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : EDUARDO REYES-SOTERO : v. : Civil Action No. DKC 12-1036 Criminal No. DKC 08-0593 : UNITED STATES OF AMERICA : MEMORANDUM OPINION By a judgment entered October 23, 2009, Petitioner Eduardo Reyes-Sotero was convicted, upon his guilty plea, of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and sentenced to a term of imprisonment Petitioner did not appeal his conviction. of 120 months. On or about March 28, 2012, he filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (ECF No. 96). before motion the petition as court is timely the (ECF government s No. 96) and to Pending dismiss Petitioner s the opposition thereto (ECF No. 98). Section 2255, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ( AEDPA ), provides for a one-year statute of limitations running from the latest of the following dates: (1) the date on which conviction becomes final; the judgment of (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f). In moving to vacate his sentence, Petitioner alleges that his trial counsel rendered ineffective assistance by failing to challeng[e] the fruits of the illegal searches[] that [were] the result of the tracking device that was illegally placed on . . . [his] wiretaps of vehicle and vehicle[,] [his] which phones, residence. produced and the (ECF No. the affidavits searches 96, at of . 6). for . . He the [his] relies principally on United States v. Jones, --- U.S. ----, 132 S.Ct. 945 (2012), a case decided by the Supreme Court of the United States on January 23, 2012, in which the court found that the Fourth Amendment was violated when law enforcement officers, without a valid warrant, installed a GPS tracking device on the undercarriage of the defendant s Jeep while it was parked in a 2 public parking lot. United States v. Davis, 690 F.3d 226, 241 n. 23 (4th Cir. 2012). The government appears to concede that Jones announced a new rule, but contends that Petitioner cannot avail himself of the limitations trigger of § 2255(f)(3) because the rule of Jones is not retroactively applicable to cases on collateral review. According to the government, Petitioner s judgment of conviction became final, and the one-year statute of limitations for his motion commenced, on or about November 2, 2009.1 his motion, filed on March 28, Thus, 2012, was untimely by over that his motion would sixteen months. Petitioner untimely under does § not dispute 2255(f)(1); rather, he challenges be the government s argument that the ruling in Jones cannot be applied retroactively. In Teague v. Lane, 489 U.S. 288, 310 (1989), the Supreme Court held that, generally, new constitutional rules of criminal procedure will not be applicable to those cases which 1 Where, as here, an appeal is not taken, a judgment becomes final when the time for filing a notice of appeal expires. See United States v. Wilson, 256 F.3d 217, 221 (4th Cir. 2001); Jackson v. United States, Civ. No. WDQ-09-2721, Crim. No. WDQ02-0305, 2012 WL 1066474, at *1 (D.Md. Mar. 27, 2012). At the time of Petitioner s conviction, Rule 4 of the Federal Rules of Appellate Procedure provided ten days for the filing of a notice of appeal. Thus, under § 2255(f)(1), the statute of limitations commenced ten days after October 23, 2009, the date Petitioner s judgment of conviction was entered in this court. 3 have become final before the new rules are announced. forth exceptions to this general rule, however, It set in two circumstances: (1) if the new rule places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe, or (2) if the new rule alter[s] elements that our must understanding be particular conviction. found to of the vitiate bedrock the procedural fairness of a Id. at 311 (internal marks omitted). [B]edrock procedural elements, the Court explained, are those elements that are innocence or guilt. central to an accurate determination of Id. at 313. To date, it appears that only two federal district courts have considered whether the rule of Jones applies retroactively. Both have reached the same result: [A] [p]etitioner is not entitled to retroactive application unless the Jones rule falls within one of the two exceptions enumerated in Teague. The first exception that a new rule should be applied retroactively if it places primary, private conduct outside the scope of criminal regulation is not relevant here. The Jones rule requiring police to have a warrant prior to attaching a GPS unit to a suspect s vehicle does not render any primary, private conduct outside the scope of the police power. The second exception that a new rule should be applied retroactively if it alters a bedrock procedural element that must be found to vitiate the fairness of a particular conviction is also inapplicable to the Jones rule. Simply put, the warrant 4 requirement for police GPS tracking is not central to an accurate determination of innocence or guilt. Id. at 313. Garcia v. Bradt, No. 09 CV 7941(VB), 2012 WL 3027780, at *5 (S.D.N.Y. July 23, 2012); see also United States v. Reyes, Civ. NO. 12CV555-MMA, Crim. No. 09CR2487-MMA, 2012 WL 4339070, at *67 (S.D.Cal. Sept. 19, 2012) (quoting Garcia). The reasoning of these cases is persuasive. To qualify under the second exception set forth in Teague, applying to socalled watershed rules of criminal procedure, a new rule must be of such nature that infringement would seriously diminish the likelihood of obtaining an accurate conviction[.] United States v. Morris, 429 F.3d 65, 71 (4th Cir. 2005) (quoting Tyler v. Cain, 533 U.S. 656, 665 (2001)). As the Supreme Court explained in Schriro v. Summerlin, 542 U.S. 348, 352 (2004), [t]his class of rules is extremely narrow, and it is unlikely that any has yet to emerge. (Internal marks omitted). A rule relating to evidence that is subject to exclusion as violative of the Fourth Amendment, such as that announced in Jones, is particularly unlikely to constitute a watershed rule because [t]he exclusionary rule . . . does not improve the accuracy with which defendants are convicted or acquitted[.] Shayesteh, 54 Fed.Appx. 916, 919 (10th Cir. 2003). not addressed to the underlying guilt or U.S. v. Indeed, it is innocence of the criminal defendant, but to deterrence of official misconduct. 5 See United States v. Bryan, 66 F.3d 317, 1995 WL 551273, at *5 (4th Cir. Sept. 18, 1995) (Table) ( the Fourth Amendment exclusionary rule . . . [is] designed to deter police misconduct rather than to ensure the reliability of the resulting determination of factual guilt or innocence ). Thus, the rule announced in Jones is not retroactively applicable to 2255(f)(3), and cases did on not collateral re-start review, the 28 limitations purposes of Petitioner s motion to vacate. U.S.C. period § for Rather, Petitioner s judgment became final when he failed to note an appeal within ten days of the entry of judgment in this case. 2255(f)(1). See 28 U.S.C. § Because he did not file his § 2255 petition within one year of that date, his motion is time-barred. Accordingly, the government s motion to dismiss will be granted.2 Pursuant to Rule 11(a) of the Rules Governing Proceedings Under 28 U.S.C. § 2255, the court is required to issue or deny a certificate of appealability adverse to the applicant. when it enters a final order A certificate of appealability is a jurisdictional prerequisite earlier order. United States v. Hadden, 475 F.3d 652, 659 (4th Cir. 2007). to an appeal from the court s A certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a 2 Consequently, Petitioner s motion for discovery (ECF No. 95) will be denied as moot. 6 constitutional right. denies the 28 U.S.C. § 2253(c)(2). petitioner s motion on its Where the court merits, a petitioner satisfies this standard by demonstrating that reasonable jurists would find the court s assessment of the constitutional claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller El v. Cockrell, 537 U.S. 322, 336 38 (2003). Where a motion is denied on a procedural ground, a certificate petitioner of can appealability demonstrate will both not (1) issue that unless jurists of the reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. F.3d 676, Petitioner 684 has (4th not Cir. 2001) satisfied (quotation this standard. Rose v. Lee, 252 marks omitted). Accordingly, certificate of appealability will not issue. A separate order will follow. ________/s/_________________ DEBORAH K. CHASANOW United States District Judge 7 a
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