Garcia v. United States ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 10 BALTAZAR REYES GARCIA, CASE NO. C21-0322JLR 11 Petitioner, ORDER v. 12 UNITED STATES OF AMERICA, 13 Respondent. 14 15 I. INTRODUCTION 16 Before the court are two motions filed by pro se Petitioner Baltazar Reyes Garcia: 17 a motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255 (2255 Mot. 18 (Dkt. # 1)) and an unsigned motion for discovery, an evidentiary hearing, and 19 appointment of counsel (Disc. Mot. (Dkt. # 12 at 1-4)). Respondent United States of 20 America (“the Government”) opposes Mr. Garcia’s § 2255 motion but did not file a 21 response to his motion for discovery, an evidentiary hearing, and appointment of counsel. 22 (See Resp. (Dkt. # 5); see generally Dkt.) The court has considered the motions, the 1 parties’ submissions in support of and in opposition to the motions, the relevant portions 2 of the records of this case and the underlying criminal case, and the governing law.1 3 Being fully advised, the court DENIES Mr. Garcia’s § 2255 motion to vacate his 4 conviction and sentence and STRIKES his motion for discovery, evidentiary hearing, and 5 appointment of counsel. 6 II. BACKGROUND 7 On October 16, 2017, after an eleven-day trial, a jury found Mr. Garcia guilty of 8 one count of conspiracy to distribute controlled substances and three counts of 9 distribution of methamphetamine. (See 10/16/17 Min. Entry (CR Dkt.2 # 665); Jury 10 Verdict (CR Dkt. # 679).) On January 16, 2018, the court sentenced Mr. Garcia to 216 11 months of imprisonment and five years of supervised release. (See 1/16/18 Min. Entry 12 (CR Dkt. # 777); Judgment (CR Dkt. # 778).) 13 Mr. Garcia appealed his conviction and sentence to the Ninth Circuit Court of 14 Appeals. (See Not. of Appeal (CR Dkt. # 782).) The Ninth Circuit affirmed the court’s 15 judgment on November 4, 2019, and issued its mandate on November 26, 2019. (See 9th 16 Cir. Mem. (CR Dkt. # 868); 9th Cir. Mandate (CR Dkt. # 869)); see also United States v. 17 Reyes Garcia, 794 F. App’x 567 (9th Cir. 2019). Mr. Garcia petitioned the United States 18 19 20 1 Because “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief,” the court determines that there is no need for an evidentiary hearing. 28 U.S.C. § 2255(b). 21 2 The court uses the shorthand “CR Dkt.” when citing to documents on the docket of Mr. 22 Garcia’s criminal case, United States v. Garcia, No. CR16-0287JLR (W.D. Wash.). 1 Supreme Court for a writ of certiorari. See Garcia v. United States, 140 S. Ct. 1286, 2 1286 (2020) (Mem.). The Supreme Court denied his petition on March 2, 2020. See id. 3 Mr. Garcia filed his § 2255 motion to vacate his conviction and sentence on March 4 3, 2021. (See 2255 Mot. at 12-13.) Mr. Garcia contends that his trial attorney provided 5 ineffective assistance of counsel (see id. at 4-6); that the court misapplied the Sentencing 6 Guidelines in determining his sentence (see id. at 7-8); and that he was subjected to a 7 “trial penalty” of a longer sentence because he chose to proceed to trial rather than plead 8 guilty to the charged offenses (see id. at 8-9). The Government filed a timely response on 9 May 7, 2021. (See Resp.) 10 Mr. Garcia moved for an extension of time to file his reply due to COVID-19 11 related lockdowns at the detention facilities where he was incarcerated and a recent 12 transfer to a new facility. (See MFE (Dkt. # 10) at 1.) On June 9, 2021, the court granted 13 Mr. Garcia’s motion and set a new reply deadline of June 30, 2021. (See 6/9/21 Order 14 (Dkt. # 11).) Although Mr. Garcia submitted documents before that deadline, his reply 15 was missing pages and appeared to be commingled with three copies of his unsigned 16 motion for discovery, evidentiary hearing, and appointment of counsel. (See 7/7/21 17 Order (Dkt. # 13); see generally Dkt. # 12.) 18 On July 7, 2021, the court provided Mr. Garcia an opportunity to cure these 19 deficiencies by filing a complete reply and a signed and correctly dated motion for 20 discovery no later than July 21, 2021. (See 7/7/21 Order.) Mr. Garcia has made no 21 filings in response to that order. (See generally Dkt.) The Government, however, 22 provided the court a copy of the complete reply that Mr. Garcia had mailed to counsel on 1 June 29, 2021. (See Reply (Dkt. # 14).) The court reviews this version of the reply in 2 this order. 3 III. ANALYSIS 4 Below, the court addresses Mr. Garcia’s § 2255 motion and then discusses his 5 motion for discovery, an evidentiary hearing, and appointment of counsel 6 A. Mr. Garcia’s § 2255 Motion 7 The Government argues that Mr. Garcia’s § 2255 motion must be dismissed 8 because it is time-barred. (Resp. at 11.) It points out that Mr. Garcia filed his motion on 9 March 3, 2021—one year and one day after the Supreme Court denied his petition for 10 certiorari. (Id.; see Mot. at 12-13); see also Garcia, 140 S. Ct. at 1286. Mr. Garcia, 11 however, asks the court to equitably toll the deadline to file his § 2255 motion because he 12 was exposed to COVID-19 while in custody and was transferred between detention 13 facilities “at the height of” COVID-19. (Reply at 14.) The court agrees with the 14 Government that Mr. Garcia’s petition is time-barred. 15 Rule 3(d) of the Rules Governing Section 2255 Proceedings “codifies the prison 16 mailbox rule, which states that a motion or other paper submitted by a prisoner is deemed 17 filed as of the date he submits it to prison authorities for mailing if certain conditions are 18 met.” United States v. Winkles, 795 F.3d 1134, 1146 (9th Cir. 2015). Here, although the 19 Supreme Court denied Mr. Garcia’s petition for certiorari on March 2, 2020, Mr. Garcia 20 did not place his motion in the prison mailing system until March 3, 2021. See Garcia, 21 140 S. Ct. at 1286; (see 2255 Mot. at 12). Thus, it is undisputed that Mr. Garcia filed his 22 motion more than one year from the “date on which the judgment of conviction [became] 1 final.” 28 U.S.C. § 2255(f); see also Clay v. United States, 537 U.S. 522, 527 (2003) 2 (judgment of conviction becomes final when Supreme Court denies petition for writ of 3 certiorari). As a result, absent tolling of the statutory deadline, Mr. Garcia’s motion is 4 time-barred. See United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (holding 5 federal habeas petition submitted one day late was properly dismissed as untimely); see 6 also United States v. Locke, 471 U.S. 84, 100-01 (1985) (“A filing deadline cannot be 7 complied with, substantially or otherwise, by filing late—even by one day.”). 8 “A § 2255 movant is entitled to equitable tolling ‘only if he shows (1) that he has 9 been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in 10 his way and prevented timely filing.’” United States v. Buckles, 647 F.3d 883, 889 (9th 11 Cir. 2011) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). “[F]or a litigant to 12 demonstrate he has been pursuing his rights diligently . . . he must show that he has been 13 reasonably diligent in pursuing his rights not only when an impediment to filing caused 14 by an extraordinary circumstance existed, but before and after as well, up to the time of 15 filing his claims in federal court.” Smith v. Davis, 953 F.3d 582, 598-99 (9th Cir. 2010) 16 (internal citations and quotations omitted). Extraordinary circumstances beyond the 17 defendant’s control must make it “impossible to file a petition on time” and be the “cause 18 of [the defendant’s] untimeliness.” United States v. Battles, 362 F.3d 1195, 1197 (9th 19 Cir. 2004). Although a petitioner may be able to show that circumstances related to 20 COVID-19 are sufficiently “extraordinary” to trigger equitable tolling, “the COVID-19 21 pandemic does not automatically warrant equitable tolling for any petitioner who seeks it 22 on that basis, because [the petitioner] must establish that he was pursuing his rights 1 diligently and that the COVID-19 pandemic specifically prevented him from filing his 2 motion.” Olsen v. United States, No. 4:20-cv-00166-BLW, 2021 WL 329462, at * 3 (D. 3 Idaho Feb. 1, 2021) (emphasis in original; internal quotation marks omitted). 4 Here, Mr. Garcia states only that he was exposed to COVID-19 and was 5 transferred between facilities “at the height of” the pandemic. (See Reply at 14.) He 6 does not explain how his exposure to COVID-19 and his transfer caused his untimely 7 filing and made it “impossible” to mail a timely petition on March 2, 2021, rather than a 8 late petition on March 3, 2021. See Battles, 362 F.3d at 1197; (see Reply). Nor does he 9 make any attempt to demonstrate that he pursued his rights diligently in the year before 10 the statute of limitations expired. See Smith, 953 F.3d at 598-99; (see Reply). 11 Accordingly, Mr. Garcia has not met his high burden to demonstrate an entitlement to 12 equitable tolling.3 Therefore, the court DENIES Mr. Garcia’s § 2255 motion as 13 time-barred.4 14 15 3 Indeed, Mr. Garcia stated in his § 2255 motion that the Supreme Court denied his 16 petition for certiorari on March 3, 2020. (See 2255 Mot. at 2.) Thus, it appears likely that his late filing was the result of his own mistake regarding the date his judgment of conviction 17 became final rather than the COVID-19 pandemic. 18 4 Because Mr. Garcia’s § 2255 motion is time-barred, the court need not address the merits of that motion. Even if the motion were timely, however, Mr. Garcia’s motion contains 19 only conclusory allegations, and his reply neither addresses the Government’s arguments in support of dismissal nor discusses the facts of his case. (See generally 2255 Mot.; Reply.) 20 Instead, Mr. Garcia’s reply merely recites case law regarding ineffective assistance of counsel and Sentencing Guidelines calculations without explaining how that law applies to support his claims. (See Reply.) Moreover, the court’s review of the records of both this case and the 21 underlying criminal case makes clear that Mr. Garcia’s allegations have no basis in fact or law. Thus, even if Mr. Garcia had timely filed his § 2255 motion, the court would nevertheless deny 22 the motion. 1 B. Mr. Garcia’s Motion for Discovery, Evidentiary Hearing, and Appointment of Counsel 2 The court STRIKES Mr. Garcia’s motion for discovery, an evidentiary hearing, 3 and appointment of counsel. The Federal Rules of Civil Procedure require a court to 4 “strike an unsigned paper unless the omission is promptly corrected after being called 5 to . . . the party’s attention.” Fed. R. Civ. P 11(a); see also Rules Governing Section 6 2255 Proceedings Rule 12. Here, Mr. Garcia did not sign any of the three copies of his 7 motion. (See Disc. Mot. at 1-11.) And even though the court ordered Mr. Garcia to 8 correct his improper filing, Mr. Garcia has not made any effort to cure the deficiency. 9 (See 7/7/21 Order; see generally Dkt.) Accordingly, the court STRIKES Mr. Garcia’s 10 motion for discovery, an evidentiary hearing, and appointment of counsel. 11 Even if it did not strike the motion, the court concludes that the relief it seeks is 12 unwarranted. First, a judge may, “for good cause,” authorize a party in a § 2255 to 13 conduct discovery under the Federal Rules of Civil Procedure. Rules Governing Section 14 2255 Proceedings Rule 6. The court declines to authorize discovery because Mr. Garcia 15 has not met his burden to show good cause justifying discovery in this time-barred 16 matter. (See Disc. Mot. at 1.) 17 Second, under 28 U.S.C. § 2255, the court must hold an evidentiary hearing unless 18 “the motion and the files and records of the case conclusively show that the prisoner is 19 entitled to no relief.” 28 U.S.C. § 2255; see Frazer v. United States, 18 F.3d 778, 781 20 (9th Cir. 1994). “No hearing is required if the allegations, viewed against the record, 21 either fail to state a claim for relief or are so palpably incredible or patently frivolous as 22 1 to warrant summary dismissal.” Shah v. United States, 878 F.2d 1156, 1158 (9th Cir. 2 1989) (internal quotation marks omitted). Because Mr. Garcia’s petition is time-barred, 3 no evidentiary hearing is required. 4 And finally, a district court may appoint counsel in the “interests of justice” in a 5 case brought under 28 U.S.C. § 2255. 18 U.S.C. § 3006A(a)(2)(B); Weygandt v. Look, 6 718 F.2d 952, 954 (9th Cir. 1983). “In deciding whether to appoint counsel in a habeas 7 proceeding, the district court must evaluate the likelihood of success on the merits as well 8 as the ability of the petitioner to articulate his claims pro se in light of the complexity of 9 the legal issues involved.” Weygandt, 718 F.2d at 954 (italics in original). Having 10 reviewed the record, and being mindful of the standard set forth in Weygandt, the court 11 concludes that appointment of counsel is not warranted. 12 C. Certificate of Appealability 13 As a final matter, the court notes that a petitioner seeking post-conviction relief 14 may appeal a district court’s dismissal of a 28 U.S.C. § 2255 motion only after obtaining 15 a certificate of appealability. A certificate of appealability may issue only where a 16 petition has made “a substantial showing of the denial of a constitutional right.” 28 17 U.S.C. § 2253(c)(2). A petitioner satisfies this standard “by demonstrating that jurists of 18 reason could disagree with the district court’s resolution of his constitutional claims or 19 that jurists could conclude the issues presented are adequate to deserve encouragement to 20 proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Under this standard, 21 the court concludes that Mr. Garcia is not entitled to a certificate of appealability. 22 1 IV. CONCLUSION 2 For the foregoing reasons, the court DENIES Mr. Garcia’s untimely § 2255 3 motion to vacate his conviction and sentence (Dkt. # 1) and STRIKES Mr. Garcia’s 4 motion for discovery, evidentiary hearing, and appointment of counsel (Dkt. # 12). The 5 court DISMISSES this matter with prejudice. 6 Dated this 4th day of August, 2021. 7 A 8 9 JAMES L. ROBART United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22