Jimenez-Echevarria v. USA, No. 3:2013cv01748 - Document 4 (D.P.R. 2014)

Court Description: OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 10-251) filed by Jose David Jimenez-Echevarria. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief from this court. Judgment to be entered accordingly. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Signed by Judge Jose A. Fuste on 02/06/2014.(mrj)

Download PDF
UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 4 JOSà DAVID JIMà NEZ-ECHEVARRà A, Petitioner, Civil No. 13-1748 (JAF) v. (Crim. No. 10-251-3 (JAF)) UNITED STATES OF AMERICA, Respondent. 5 6 7 OPINION AND ORDER 8 Petitioner, José David Jiménez-Echevarría, brings this petition under 28 U.S.C. 9 § 2255 for relief from sentencing by a federal court, alleging that the sentence imposed 10 violated his rights under federal law. He requests an order to vacate, set aside, or correct 11 the sentence imposed in Cr. No. 10-251. (Docket No. 1.) 12 I. 13 Background 14 Petitioner was charged with two drug-related offenses: one count of conspiracy to 15 distribute narcotics in a protected location and one count for possessing a firearm in 16 relation to a drug trafficking crime. On January 13, 2011, Petitioner agreed to plead 17 guilty on both counts. (Crim. Docket No. 999.) We sentenced Petitioner to 168 months. 18 (Cr. Docket No. 1803.) The Petitioner did not seek appeal of his conviction. Judgment 19 was entered on May 23, 2011. On October 3, 2011, Petitioner filed a motion for relief 20 under 28 U.S.C. § 2255. (Docket No. 1.) Respondent opposes. (Docket No. 3.) Civil No. 13-1748 (JAF) -2- 1 II. 2 Legal Standard 3 A federal district court has jurisdiction to entertain a § 2255 petition when the 4 petitioner is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A 5 federal prisoner may challenge his sentence on the ground that, inter alia, it was imposed 6 in violation of the Constitution or laws of the United States. Id. A petitioner cannot be 7 granted relief on a claim that has not been raised at trial or direct appeal, unless he can 8 demonstrate both cause and actual prejudice for his procedural default. See United States 9 v. Frady, 456 U.S. 152, 167 (1982). Indeed, [p]ostconviction relief on collateral review 10 is an extraordinary remedy, available only on a sufficient showing of fundamental 11 unfairness. Singleton v. United States, 26 F.3d 233, 236 (1st Cir. 1994). Claims of 12 ineffective assistance of counsel, however, are exceptions to this rule. See Massaro v. 13 United States, 538 U.S. 500, 123 (2003) (holding that failure to raise ineffective 14 assistance of counsel claim on direct appeal does not bar subsequent § 2255 review). 15 III. 16 Discussion 17 Because Petitioner appears pro se, we construe his pleadings more favorably than 18 we would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 19 Nevertheless, Petitioner s pro-se status does not excuse him from complying with 20 procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 21 The Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2255, has a one- 22 year limitations period. See § 2255(f). The period begins to run from the date on which 23 the conviction becomes final. § 2255(f)(1). When a federal criminal defendant has 24 exhausted his appeals, the conviction becomes final when the time for filing a petition for Civil No. 13-1748 (JAF) -3- 1 certiorari with the Supreme Court expires. See Clay v. United States, 537 U.S. 522, 525 2 (2003) ( For the purpose of starting the clock on § 2255's one-year limitation period, we 3 hold a judgment of conviction becomes final when the time expires for filing a petition 4 for certiorari contesting the appellate court's affirmation of the conviction. ). 5 Here, Petitioner did not appeal his conviction and judgment was entered on 6 May 23, 2011. The one-year limitations period specified in § 2255(f) expired one year 7 later, on May 23, 2012. 8 Petitioner waited until October 3, 2013, to file this § 2255 motion. (Docket 9 No. 1.) This was more than one year after the one-year limitations period expired. Thus, 10 Petitioner's claim is untimely and subject to dismissal. 11 Petitioner asserts, however, that he is entitled to equitable tolling because the 12 Supreme Court's decision in Alleyne v. United States provides a new constitutional rule 13 that should be applied retroactively. See Ramos Martinez v. United States, 638 F.3d 14 315, 319 (1st Cir.2011) (the one-year limitations period may be subject to equitable 15 tolling under certain circumstances). 16 Petitioner s Alleyne argument is dubious at best. In Apprendi v. New Jersey, the 17 Supreme Court held that a fact must be submitted to a jury and found beyond a 18 reasonable doubt if it increases a defendant's statutory mandatory maximum sentence. 19 Alleyne extends this principle to facts that increase a defendant's statutory mandatory 20 minimum sentence. The Supreme Court held, in United States v. Booker, 543 U.S. 220 21 (2005), that Apprendi was not retroactively applicable. While the Supreme Court has not 22 decided whether Alleyne applies retroactively to cases on collateral review, the United 23 States Court of Appeals for the Seventh Circuit has suggested, without deciding, that 24 because Alleyne is an extension of Apprendi ... [t]his implies that the Court will not Civil No. 13-1748 (JAF) -4- 1 declare Alleyne to be retroactive. Simpson v. United States, 721 F.3d 875, 2013 WL 2 3455876, at * 1 (7th Cir. July 10, 2013). At this time, several district courts have held 3 that Alleyne does not apply retroactively to cases on collateral review. See Lassalle- 4 Velazquez v. United States, 2013 WL 4459044 (D.P.R. Aug. 16, 2013); United States v. 5 Stanley, 2013 WL 3752126, at *7 (N.D.Okla. July 16, 2013); United States v. Eziolisa, 6 2013 WL 3812087, at *2 (S.D.Ohio July 22, 2013); Affolter v. United States, 2013 WL 7 3884176, at *2 (E.D.Mo. July 26, 2013); United States v. Reyes, 2013 WL 4042508, at 8 *19 (E.D.Pa. Aug. 8, 2013). Since neither the Supreme Court nor the First Circuit has 9 held Alleyne to be retroactively applicable, we decline to do so here. 10 Even if the principle articulated in Alleyne were retroactively applicable, we see 11 no reason why Alleyne would be of any help to the Petitioner. Unlike in Alleyne, 12 Petitioner opted to plead guilty and forego a jury trial. 13 minimums applied to his sentence, and the proffer of evidence against him, were solidly 14 covered by the plea agreement accepted and agreed to by Petitioner. (Crim. Docket 15 No. 999.) Therefore, the statutory 16 Petitioner has made no argument that would justify equitable tolling. Summary 17 dismissal is in order. See Lattimore v. Dubois, 311 F.3d 46, 54 (1st Cir.2002) (holding 18 that a prisoner's habeas petition filed one day late was time-barred by § 2255(f)). 19 Therefore, this court has no authority to consider Petitioner s present 2255 motion, and it 20 must be dismissed. Civil No. 13-1748 (JAF) -5- 1 IV. 2 3 4 Certificate of Appealability In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever 5 issuing a denial of § 2255 relief we must concurrently determine whether to issue a 6 certificate of appealability ( COA ). We grant a COA only upon a substantial showing 7 of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make this showing, 8 [t]he petitioner must demonstrate that reasonable jurists would find the district court's 9 assessment of the constitutional claims debatable or wrong. Miller-El v. Cockrell, 537 10 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While 11 Petitioner has not yet requested a COA, we see no way in which a reasonable jurist could 12 find our assessment of her constitutional claims debatable or wrong. Petitioner may 13 request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 14 22. 15 V. 16 Conclusion 17 For the foregoing reasons, we hereby DENY Petitioner s § 2255 motion (Docket 18 No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary 19 dismissal is in order because it plainly appears from the record that Petitioner is not 20 entitled to § 2255 relief from this court. 21 IT IS SO ORDERED. 22 San Juan, Puerto Rico, this 6th day of February, 2014. 23 24 25 S/José Antonio Fusté JOSE ANTONIO FUSTE U. S. DISTRICT JUDGE

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.