United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion of Ernesto Amieva to
vacate, set aside, or correct sentence under 28 U.S.C. §
2255. The motion is denied.
September 18, 2012, Movant pled guilty to possession with
intent to distribute cocaine in violation of 18 U.S.C. §
2 and 21 U.S.C. § 841(b)(1)(A). On December 20, 2012,
the Court sentenced him to 120 months' imprisonment.
Movant did not file an appeal. On the same day he was
sentenced, Movant executed a Notice of Compliance with Local
Rule 12.07(A). The Notice was signed by Movant, and it
provided, “I have been fully informed of my right to
appeal the final judgment in this case, I do not wish to file
a Notice of Appeal, and I have instructed by attorney not to
file a Notice of Appeal.”
filed a Notice of Appeal on September 8, 2015, two years and
eight months after he was sentenced. In his request to file a
late appeal before the Court of Appeals for the Eighth
Circuit, Movant claimed he instructed plea counsel to file a
Notice of Appeal. He said he is now subject to deportation as
a result of his guilty plea, and he stated that counsel was
ineffective for failing to advise him of the immigration
consequences of his conviction and for failing to file a
Notice of Appeal as instructed. The Court of Appeals
dismissed the appeal as untimely. United States v.
Amieva, No. 15-3131 (8th Cir. Oct. 8, 2015).
instant motion, Movant claims that counsel was ineffective
for failing to advise him of the immigration consequences of
his conviction and for failing to file a Notice of Appeal
as instructed. However, in his response to the Court's
show cause Order, he admits that he did not instruct counsel
to file an appeal. He requests equitable tolling on the basis
that he believed plea counsel filed a Notice of Appeal, even
though he did not instruct counsel to do so, and that his
appeal was pending before the Court of Appeals. He also
claims that counsel told him he was going to be resentenced
pursuant to Rule 35 of the Federal Rules of Civil Procedure.
He says when he learned he did not have a pending appeal he
hired present counsel to represent him.
28 U.S.C. § 2255(f)(1), a petitioner has one year from
the date the criminal judgment became final to file a motion
to vacate. An unappealed criminal judgment becomes final for
purposes of calculating the time limit for filing a motion
under § 2255 when the time for filing a direct appeal
expires, ten days after the judgment is entered. Moshier
v. United States, 402 F.3d 116, 118 (2nd Cir. 2005);
Fed. R. App. Proc. 4(b)(1). The time for filing a direct
appeal in this case expired on December 30, 2012. This action
was not filed until December 7, 2015, nearly three years
after the limitations period expired.
the doctrine of equitable tolling, the limitations period may
be tolled if a petitioner can show that (1) he has been
diligently pursuing his rights and (2) an extraordinary
circumstance stood in his way. Holland v. Florida,
560 U.S. 631, 649 (2010). Equitable tolling is a flexible
procedure that involves both recognition of the role of
precedent and an “awareness of the fact that specific
circumstances, often hard to predict in advance, could
warrant special treatment in an appropriate case.”
Id. at 649-50.
has not diligently pursued his rights, nor have extraordinary
circumstances prevented him from filing a timely motion to
vacate. First, the record contradicts his recent assertion
that he instructed his counsel to file a Notice of Appeal.
Second, he could have easily inquired about the status of any
appeal before the § 2255 limitations period expired.
Therefore, this action is dismissed. See 28 U.S.C.
§ 2255 Rule 4; Day v. McDonough, 547 U.S. 198,
Movant has failed to demonstrate that jurists of reason would
find it debatable whether the petition is untimely. Thus, the
Court will not issue a certificate of appealability. 28
U.S.C. § 2253(c).
IT IS HEREBY ORDERED that this action is DISMISSED without
FURTHER ORDERED that the Court will not issue a ...