Opinion
3:98-CR-198-P(13), (3:01-CV-1760-P)
December 13, 2001
ORDER
Type Case: This is a motion to vacate, set aside, or correct sentence brought pursuant to 28 U.S.C. § 2255. Movant is a prisoner in the federal prison system.
Statement of the Case: On February 24, 1999, Movant pled guilty to conspiracy to distribute narcotics in violation of 21 U.S.C. § 846. On May 18, 1999, the District Court sentenced Movant to 130 months imprisonment, a five-year term of supervised release, and a mandatory special assessment of $100.00. Movant did not appeal.
On September 7, 2001, Movant filed this § 2255 motion, challenging the judgment of conviction. She contends (1) she received ineffective assistance of counsel, (2) her guilty plea was unknowing and involuntary and entered under duress, (3) her sentence was enhanced in violation of the Due Process Clause, and (4) her sentence failed to take into consideration the minor character of her role in the offense.
Analysis: Movant filed her § 2255 motion after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present motion. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The AEDPA establishes a one-year statute of limitations for federal inmates 138 L.Ed.2d 481 (1997). The AEDPA establishes a one-year statute of limitations for federal inmates seeking relief under § 2255. See 28 U.S.C. § 2255. The district court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
On September 14, 2001, the Court advised Movant of the one-year statute of limitations and granted her thirty days to show cause why the § 2255 motion should not be dismissed as barred by the limitation period. Movant filed her response to the show cause order on October 15, 2001.
Section 2255 provides in part as follows:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run 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.
The 130-month sentence became final on May 28, 1999, the last day on which Movant could have appealed the judgment of conviction. See Fed.R.App. 4(b)(1)(A) ("In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after the later of (i) the entry of either the judgment or the order being appealed; or (ii) the filing of the government's notice of appeal."). The one-year period began to run on May 29, 1999, the day after the sentence became final, see Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998), and expired on May 28, 2000.
Movant signed and filed her § 2255 motion and request to proceed in forma pauperis on September 3, 2001, more than fifteen months after the running of the one-year limitation period. Therefore, her § 2255 motion is untimely.
In response to the court's show cause order, Movant alleges she is entitled to equitable tolling of the limitation period. The AEDPA one-year statute of limitations can be equitably tolled, but only in cases presenting "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999); see also Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g granted in part, 223 F.3d 797 (5th Cir. 2000); Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000), cert. denied, 531 U.S. 1035 (2000); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. denied, 531 U.S. 1164(2001). "`The doctrine of equitable tolling preserves a plaintiffs claims when strict application of the statute of limitations would be inequitable.'" United States v. Patterson, 211 F.3d 927, 930-31 (5th Cir. 2000) (quoting Davis, 158 F.3d at 810). "`Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)), cert. denied, 529 U.S. 1057 (2000); see also Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001). Neither "a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling." Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 528 U.S. 1007 (1999). Further, "equity is not intended for those who sleep on their rights." Fisher, 174 F.3d at 715. Rather, "[e]quitable tolling is appropriate when, despite all due diligence, a plaintiff is unable to discover essential information bearing on the existence of his claim." Id. at 715, n. 14. Finally, a habeas petitioner has the burden of proving that he is Movant is a Mexican national who cannot read, write or understand the English language. She contends that, even through due diligence, she could not have presented her claims earlier. Movant's contention lacks merit. Her unfamiliarity with the English language does not rise to the level of a rare or exceptional circumstance, which would warrant equitable tolling of the AEDPA limitation period. Liability to speak or read the English language is a disability common to a lot of prisoners in the prison system. See Turner, 177 F.3d at 392 (noting that unfamiliarity with the law due to illiteracy does not toll limitation period); see also United States v. Cordova, 202 F.3d 283, 1999 WL 1136759 (10th Cir., Dec. 13, 1999) (unpublished opinion) (inability to read and speak English language does not warrant equitable tolling); United States v. Teshima-Jiminez, No. CRIM. 97-087, 1999 WL 600326 at *2 (E.D.La. Aug. 5, 1999) ("lack of legal research material and assistance" and "little English spoken" in petitioner's prison not "`rare and exceptional circumstances'" to justify equitable tolling); Ciria v. Cambra, No. C 98-1021, 1998 WL 823026 at *3 (N.D.Cal. Nov. 10, 1998) (no toll where prison law library contained only outdated materials and petitioner only had a "limited command of the English language"); Neuyen v. Mervau, No. C 98-2038, 1998 WL 556628 at *2 (N.D.Cal. Aug. 24, 1998) (equitable tolling not justified based on "lack of fluency in the English language and [petitioner's] alleged inability to find a jailhouse lawyer"); Santana v. Kuhlman, 97 Civ. 3882, 1998 WL 182433, at * 2 (S.D.N.Y. April 17, 1998) ("lack of access to bilingual paralegals" not sufficient to equitably toll statute of limitations, despite the Court's recognition of "the difficulties faced by pro se litigants"); United States v. Maldanado, 97 Civ. 4088, 1997 WL 360932, at * 3 (E.D. Pa. Jun. 26, 1997) (difficulty with English not extraordinary circumstance necessary to warrant equitable tolling of AEDPA statute of limitations).
Movant also contends that her pro se status should be a basis for equitable tolling. The Fifth Circuit, however, has held that "neither a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling." Turner, 177 F.3d at 391-92.
Next Movant contends that her counsel's ineffectiveness during the guilty plea and sentencing proceedings provides sufficient cause to toll the limitation period. This claim is patently frivolous. A counsel's actions or inactions at a time preceding the one-year limitation period cannot provide a basis for equitable tolling of the limitation period.
CONCLUSION
IT IS THEREFORE ORDERED that Movant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 is dismissed as barred by the one-year statute of limitations.
The Clerk will transmit a copy of this order to Movant.