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Rosado v. United States

United States District Court, D. New Jersey

February 28, 2018

RUBEN ROSADO, Petitioner,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          FREDA L. WOLFSON, UNITED STATES DISTRICT JUDGE

         This matter having been opened to the Court by Petitioner Ruben Rosado's filing of a pro se motion to vacate, set aside or correct his sentence (“Petition”) pursuant to 28 U.S.C. § 2255. For the reasons explained in this Memorandum Opinion, the Court will dismiss the Petition as untimely and declines to issue a Certificate of Appealability.

         The Court previously screened the Petition for dismissal and issued an Order to Show Cause (“OTSC”) directing Petitioner to state why his Petition should not be dismissed as untimely and to provide any arguments he may have in support of equitable tolling. (See ECF No. 3.)

         Petitioner filed his motion to vacate on January 28, 2015.[1] As he was sentenced on January 11, 2010 (Crim. No. 08-284), and did not appeal (See Civ. No. 15-718, No. 1 at 2), Petitioner's conviction became final 14 days later on January 25, 2010.

         Pursuant to 28 U.S.C. § 2255(f),

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.

28 U.S.C. § 2255(f).

         Where a defendant fails to appeal his conviction, the conviction becomes final for the purposes of the statute of limitations on the date on which the time for filing an appeal expires. See, e.g., Antigua-Diaz v. United States, Civil Action No. 11-6082, 2012 WL 4194500, at *2 (D.N.J. Sept. 27, 2012). At the time Petitioner was sentenced on January 11, 2010, the time for such an appeal was 14 days after the entry of judgment. See Fed. R. App. P. 4(b)(1)(A). Here, the instant Petition was filed more than four years after the 1-year statute of limitations expired. See 28 U.S.C. § 2255(f)(1).

         Although § 2255(f) provides a strict limitations period for habeas petitions, the courts have recognized that the statute may be equitably tolled where extraordinary circumstances so warrant. United States v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013). Equitable tolling should be granted sparingly and only when the principles of equity would make the rigid application of a limitation period unfair. See Thomas, 713 F.3d at 174 (citing Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)). A petitioner must establish that he has diligently pursued his rights and that extraordinary circumstances stood in his way and prevented timely filing in order to be eligible for equitable tolling. Id. (citing Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2562-63, 177 L.Ed.2d 130 (2010)). Mere excusable neglect is not sufficient. Id.

         Petitioner filed a response to the OTSC (ECF No. 6), but he does not provide any facts in support of equitable tolling. Instead, he appears to rely on § 2255(f)(4), and states that the language “could have been discovered” is vague and that the Court should not limit Petitioner's access to habeas relief based on this vague language. That subsection deals with newly-discovered evidence; in such a case, the one-year statute of limitations begins to run from “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)(4). In his Petition, however, Petitioner's only claim for relief alleges that his plea was involuntary (ECF No. 1, Pet. at 4), and this claim does not ...


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