Arellano Herrera v. United States ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, Case No.: 15cr2942-CAB; 20cv1422- CAB 12 Plaintiff, 13 v. ORDER DISMISSING MOTION TO VACATE, SET ASIDE OR 14 GRACIELA ARELLANO HERRERA, CORRECT SENTENCE [Doc. No. 34] 15 Defendant. AND DENYING CERTIFICATE OF APPEALABILITY 16 17 On July 23, 2020, Petitioner/Defendant Graciela Arellano Herrera filed a motion 18 under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence (hereinafter the “2255 19 motion”). [Doc. No. 34.] On August 25, 2020, Respondent/Plaintiff United States of 20 America filed an opposition. [Doc. No. 38.] On November 2, 2020, Petitioner filed a 21 traverse. [Doc. No. 44.] For the reasons set forth below, the 2255 motion is 22 DISMISSED. 23 BACKGROUND 24 On November 24, 2015, an Information was filed in the Southern District of 25 California charging Defendant/Petitioner Graciela Arellano Herrera (“Defendant”) with 26 importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. On December 27 8, 2015, pursuant to a plea agreement, Defendant entered a guilty plea to the Information. 28 1 [Doc. No. 38-1 at 9-10; Doc. No. 38-2 at 2.] Defendant was advised that it was a virtual 2 certainty that she would be removed as a result of the guilty plea. [Doc. No. 38-1 at 5.] 3 Defendant stated that she was satisfied with her former counsel, Stephen Hoffman. [Id. at 4 8.] Defendant provided a factual basis admitting to knowingly and intentionally importing 5 a federally controlled substance. [Id. at 8-9.] The Court scheduled a sentencing hearing and 6 ordered a Presentence Report (“PSR”). [Id. at 9-10.] 7 On February 5, 2016, the Probation Officer prepared the PSR. [Doc. No. 23.] The 8 PSR included Defendant’s statement of the offense. [Doc. No. 23 at 4.] Defendant’s 9 statement did not reference any duress claim that Defendant is raising now. [Id.] On 10 February 24, 2016, Defendant’s former counsel provided to the United States Defendant’s 11 signed statement of the offense. [Doc. No. 38-3 at 2-4.] Defendant’s statement did not 12 reference the duress story Defendant is raising now. On March 11, 2016, the Court held a 13 sentencing hearing. [Doc. No. 28.] The Court departed from the low end of the guidelines 14 and imposed a sentencing of 48 months. [Id.; Doc. No. 38-4.] 15 LEGAL STANDARD 16 Pursuant to 28 U.S.C. § 2255, a federal prisoner may move to vacate, set aside, or 17 correct a sentence by demonstrating (1) the sentence was imposed in violation of the 18 Constitution or laws of the United States, (2) the court was without justification to 19 impose such a sentence, (3) the sentence was in excess of the maximum authorized by 20 law, or (4) that the sentence is otherwise subject to collateral attack. “Unless the motion 21 and the files and records of the case conclusively show that the prisoner is entitled to no 22 relief, the court shall cause notice thereof to be served upon the United States attorney, 23 grant a prompt hearing thereon, determine the issues and make findings of fact and 24 conclusions of law with respect thereto.” 28 U.S.C. § 2255(b). 25 Section 2255(f) imposes a one-year statute of limitation for all motions brought 26 under that statute. That section provides “[t]he limitation period shall run from the latest 27 of— 28 (1) the date on which the judgment of conviction becomes final; 1 (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 2 States is removed, if the movant was prevented from making a motion by 3 such governmental action; (3) the date on which the right asserted was initially recognized by the 4 Supreme Court, if that right has been newly recognized by the Supreme 5 Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented 6 could have been discovered through the exercise of due diligence.” 7 28 U.S.C. § 2255(f). 8 DISCUSSION 9 The government argues Petitioner’s motion is barred by the statute of limitations 10 because a timely petition under 28 U.S.C. §2255(f)(1) could not have been filed later than 11 March 28, 2017 – one year after Petitioner’s conviction became final. See United States 12 v. Schwartz, 274 F.3d 1220, 1223, n. 1 (9th Cir. 2001)(a judgment becomes final upon 13 expiration of the appeal period); Fed.R. App.Proc. 4(b)(Defendant has fourteen days 14 from judgment to file appeal). Since Petitioner did not file her motion until July 23, 15 2020, it is untimely on its face under Section 2255(f)(1). 16 Petitioner acknowledges that, absent any applicable tolling, her petition is 17 untimely. [Doc. No. 44 at 6.] Petitioner argues that she is entitled to tolling pursuant to 18 28 U.S.C. §2255(f)(4) because through due diligence she could not have discovered facts 19 supporting her claim any sooner. Alternatively, Petitioner argues she is entitled to 20 equitable tolling under United States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004) and 21 Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999). 22 A. 28 U.S.C. §2255(f)(4). 23 Petitioner argues the statute of limitations was tolled under Section 2255(f)(4) 24 because the facts supporting her claim were undiscoverable until October 2019, when she 25 befriended Ms. Montesanto and learned that she had a viable duress defense. [Doc. No. 26 44 at 13.] Petitioner argues she did not discover the “source of her injury” until she met 27 someone who could “provide insight about the duress defense.” [Id.] In making that 28 1 argument, Petitioner cites to Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001). However, 2 Hasan does not support Petitioner’s argument and, in fact, eviscerates it. 3 The Ninth Circuit has distinguished discovered factual predicate from learned legal 4 significance in timeliness of habeas corpus petitions. In Hasan v. Galaza, 254 F.3d 1150 5 (9th Cir.2001), the court instructed, “[t]ime begins when the prisoner knows (or through 6 diligence could discover) the important facts, not when the prisoner recognizes their legal 7 significance.” Id. at 1154 n. 3 (quoting Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.2000) 8 (internal quotation marks omitted)). In Hasan, the court allowed tolling based on the 9 discovery of a romantic relationship between a juror and a key witness. Hasan, 254 F.3d 10 at 1154. The fact that the relationship existed caused the petitioner to believe his attorney 11 was ineffective in neglecting to investigate jury tampering. Id. 12 In contrast, the Seventh Circuit recognized, in Owens, a scenario where the 13 defendant merely discovered a legal significance, while the actual facts remained the 14 same. See Owens, 235 F.3d at 359–60. There, the defendant learned after his conviction 15 that his counsel did not raise his best possible affirmative defense to the alleged crime. Id. 16 at 359. The court found the defendant's newly discovered ineffectiveness was only the 17 recognition of legal significance and not the discovery of a new factual predicate. Id. at 18 359–60. Since the defendant did not actually discover new facts, the statute of limitations 19 was not tolled. Id. at 360. See also U.S.A. v. Li, No. 5:09cr177-EJD-1, 2013 WL 20 6140860 at *3 (N. D. Cal. Nov. 21, 2013) (Section 2255(f)(4) tolling not applicable 21 where petitioner alleged only newly discovered legal significance, not facts). 22 Here, Petitioner has always known the facts of her duress claim, since she was the 23 one who experienced the alleged torture. The possibility that Petitioner may not have 24 known the legal significance of these facts until October 2019 does not provide her with 25 tolling relief under Section 2255(f)(4). 26 B. Equitable Tolling. 27 Plaintiff argues she is entitled to equitable tolling due to her alleged PTSD. [Doc. 28 No. 44 at 14.] “Equitable tolling applies when the plaintiff is prevented from asserting a 1 ||claim by wrongful conduct on the part of the defendant, or when extraordinary 2 || circumstances beyond the plaintiff's control made it impossible to file a claim on time.” 3 || Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999). Here, there was no wrongful 4 ||conduct by Respondent preventing Petitioner from filing her petition. Petitioner 5 |}acknowledges that her alleged PTSD was caused by events from her past and from the 6 alleged torture that caused her to commit a crime.’ However, notwithstanding the alleged 7 || pre-existing PTSD, Petitioner was able to participate and cogently express herself in the 8 ||underlying defense and sentencing proceedings. [See Doc. Nos. 38-1 and 39.] Therefore, 9 || Petitioner’s alleged PTSD is not a mental disability of sufficient severity to permit 10 || equitable tolling. See Duarte v. Freeland, No. CO5-2780 MJJ, 2007 WL 2790591 (N. D. 11 Sept. 24, 2007)(plaintiff who alleged post-traumatic stress as a result of assault by 12 || defendant but was able to cogently express himself in seeking redress was not entitled to 13 |} equitable tolling). 14 CONCLUSION 15 For the reasons set forth above, the 2255 motion is untimely and is therefore 16 |} DISMISSED WITH PREJUDICE. Moreover, because the Court does not believe that 17 ||reasonable jurists would find the Court’s assessment of the constitutional claims 18 || debatable or wrong it DECLINES to issue a Certificate of Appealability. See Slack v. 19 || McDaniel, 529 U.S. 473, 484 (2000). 20 IT IS SO ORDERED. 21 Dated: December 4, 2020 € ZL 22 Hon. Cathy Ann Bencivengo 23 United States District Judge 24 25 26 27 28 ' The “expert report” submitted by Petitioner has not been properly authenticated. See Fed.R.Civ.P. 43(c). Nevertheless, the Court will assume its authenticity for purposes of argument.