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Hector Cruz v. United States of America


November 13, 2012


The opinion of the court was delivered by: J. Michael Seabright United States District Judge



On August 15, 2012, Petitioner Hector Cruz ("Cruz") filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in a Federal Custody (the "Petition").*fn1 Doc. No. 754 (Cr. No. 07-00268-03). The Petition arises from Cruz's May 14, 2008 guilty plea to charges involving a drug distribution conspiracy, and his subsequent July 28, 2009 sentence. After Cruz filed this Petition, the court issued an Order to Show Cause Why the Petition Should Not Be Dismissed ("OSC"), given that the Petition was filed nearly one year past the deadline for such a Petition. See Doc. No. 755. The court allowed Cruz until October 23, 2012 to file a response. Id. at 5. The court later extended the time to respond to the OSC until November 6, 2012. No response was filed.*fn2

Because it is undisputed that this Petition is time-barred, and there are no circumstances indicating the possible applicability of equitable tolling, the Petition is DENIED.


On July 28, 2009, the court sentenced Cruz to 174 months incarceration, and judgment was entered on July 29, 2009. On August 7, 2009, Cruz filed a Notice of Appeal. On July 2, 2010, the appeal was dismissed by the Ninth Circuit Court of Appeals. The time to petition to the U.S. Supreme Court for writ of certiorari expired on or about September 30, 2010. Cruz did not file this Petition until August 15, 2012 -- almost two years after that time expired.

A one-year statute of limitations applies to § 2255 motions, which runs from the latest of:

(1) the date on which the judgment of conviction becomes final;

(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).

The Petition is not timely under § 2255(f)(1). In this instance, "a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction." Clay v. United States, 537 U.S. 522, 525 (2003). The Ninth Circuit dismissed Cruz's appeal on July 2, 2010 (although the mandate issued on July 26, 2010). Cruz did not file a petition for writ of certiorari. Thus, the conviction became final ninety days after July 2, 2010. See id. at 527 (reasoning that "[t]he time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice)") (quoting Supreme Court Rule 13(3)). That is, Cruz's conviction became final on September 30, 2010, which is ninety calendar days after July 2, 2010. Therefore, Cruz had one year from that date to file the Petition. Cruz filed his Petition on August 15, 2012 -- almost a year late given the one-year deadline outlined in § 2255(f)(1).

Sections 2255(f)(2) and (f)(3) also do not provide Cruz any relief from the conclusion that his Petition is untimely -- Cruz is not asserting that a governmental impediment prevented him from bringing this action, and he points to no Supreme Court decision newly recognizing rights asserted in the Petition.

Based on what is provided in the Petition, § 2255(f)(4) also does not apply. Section 2255(f)(4) tolls the statute of imitations until the date on which the facts supporting the claim or claims could have been discovered through the exercise of reasonable diligence. This provision "does not require the maximum feasible diligence, only due, or reasonable, diligence." Anjulo-Lopez v. United States, 541 F.3d 814, 818 (8th Cir. 2008) (quoting Wims v. United States, 225 F.3d 186, n.4 (2d Cir. 2000)). In other words, reasonable diligence "does not require a prisoner to undertake repeated exercises in futility or to exhaust every imaginable option." Id. (quoting Aron v. United States, 291 F.3d 708, 712 (11th Cir. 2002)). Rather, a prisoner must "make reasonable efforts to discover the facts supporting his claims." Id.

A document Cruz attached to the Petition indicates that Cruz attempted to obtain his legal files from his prior attorney so that he could file a habeas corpus petition. See Doc. No. 754 at 15 (letter of November 8, 2011). That document -- construed liberally in favor of Cruz -- makes apparent reference to a prior "mailing" of September 28, 2011 (only a day or two prior to expiration of the time to file a motion under § 2255). Id. Although tolling is allowed in some circumstances when a prisoner has been denied access to legal files from his counsel, see, e.g., Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003), the prisoner must still act with reasonable diligence. Here, Cruz's letter of November 8, 2011 does not indicate that he was reasonably diligent in seeking to obtain his files from his attorney -- at best, he waited nearly an entire year to even attempt to contact his attorney on September 28, 2011. This falls "far short of reasonable diligence" and cuts against § 2255's clear policy of promptness in filing petitions. See Anjulo-Lopez, 541 F.3d at 819. Even if Cruz's former attorney would have provided Cruz his legal files after receiving a September 28, 2011 "mailing," Cruz would not have been able to file his Petition before the September 30, 2011 deadline. That is, even assuming Cruz attempted to obtain his legal files from his former counsel, he did not act with reasonable diligence in doing so. See id.

Similarly, the Petition does not indicate any circumstances that would entitle Cruz to equitable tolling. "Equitable tolling is applicable only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time [and those] extraordinary circumstances [are] the cause of [the] untimeliness." Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (internal quotation signals and citation omitted). "A litigant seeking equitable tolling . . . bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

Finally, the court allowed Cruz an opportunity show cause why this Petition should not be denied, and to explain any circumstances that might justify the court considering this late Petition, and Cruz did not respond. See Doc. Nos. 755 (OSC issued on September 12, 2012) and 758 (Order extending time to file response to OSC to November 6, 2012). The court warned Cruz that failure to respond to the OSC would result in dismissal of the Petition as untimely. See Doc. No. 755 at 6.


For the foregoing reasons, the court DENIES the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in a Federal Custody. Doc. No. 754. The Clerk of Court shall close the case file.


J. Michael Seabright

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