Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cardenas-Diaz v. United States

United States District Court, D. New Jersey

March 14, 2019

JUAN CARDENAS-DIAZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          JEROME B. SIMANDLE U.S. District Judge.

         Petitioner Juan Cardenas-Diaz (“Cardenas” or “Petitioner”) pled guilty to a one count Indictment on April 11, 2011, for illegally reentering the United States in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). On March July 21, 2011, the undersigned sentenced Cardenas to seventy (70) months imprisonment, to be followed by three (3) years of supervised release. Cardenas seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on four separate bases. [Docket Item 1.] For the reasons explained below, Mr. Cardenas's § 2255 petition will be dismissed as time-barred. The Court finds as follows:

         1. Factual and Procedural Background.

         On April 11, 2011, Cardenas pled guilty to a single count Indictment for illegally reentering the United States in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). United States v. Cardenas-Diaz, Crim. No. 10-139 (D.N.J.) at Docket Items 33 & 35. On July 21, 2011, the undersigned sentenced Cardenas at the low-end of the advisory guidelines range to seventy (70) months imprisonment, to be followed by three (3) years of supervised release, and entered the final judgment of conviction that same date. Id. at Docket Items 36 & 37. Cardenas was represented by an Assistant Federal Public Defender throughout the district court proceedings, who filed a sentencing memorandum on his behalf. Cardenas-Diaz v. United States, Civ. No. 15-8858 (D.N.J.) at Docket Item 8-2.

         2. On July 27, 2011, the AFPD filed a notice of appeal on behalf of Cardenas, Cardenas-Diaz, 10-cr-139, at Docket Item 38, which was voluntarily dismissed pursuant to Rule 42(b), Fed. R. App. P., on November 9, 2011. Id. at Docket Item 43. On May 22, 2012, Cardenas filed a pro se “Motion for Relief from Sentence Imposed by the Court, Filed Out of Time, ” wherein he alleged, among other things, that his attorney never filed a notice of appeal on his behalf and that he, therefore, did not have a fair chance to appeal his case and seek the application of a four-level downward departure adjustment to his advisory guideline range pursuant to the “Fast Track” early disposition program for illegal re-entry cases. Id. at Docket Item 44. Thereafter, Cardenas filed pro se a “Request to File a Late Appeal and Leave to Appeal In Forma Pauperis.” Id. at Docket Item 45. The Court of Appeals for the Third Circuit dismissed this appeal as untimely on January 18, 2013. Id. at Docket Item 48.

         3. On December 28, 2015, Cardenas filed the pending habeas petition pursuant to 28 U.S.C. § 2255 in the U.S. District Court for the District of New Jersey. [Docket Item 1.] In the petition, Cardenas raises four grounds to vacate, set aside, or correct his sentence: (1) that defense counsel was ineffective for failing to move the Court for a downward departure based on Cardenas's status as a deportable alien; (2) that defense counsel was ineffective for failing to object to information on which the sentence was based; (3) that defense counsel was ineffective for failing to argue at the sentencing hearing that the Court had discretion to depart downward under the “Fast Track” early disposition program for illegal re-entry cases; and (4) that Cardenas's right to consular notification pursuant to the Vienna Convention was violated and his sentence too long as compared with sentences for other similar crimes. [Id. at 2.]

         4. Thereafter, the Court ordered Respondent to file an Answer in response to Cardenas's § 2255 petition. [Docket Item 4.] Respondent's Answer argued Cardenas's petition should be denied because: (1) the petition is time-barred pursuant to 28 U.S.C. § 2255(f)(1); (2) defense counsel was not ineffective at the sentencing phase; and (3) Cardenas suffered no prejudice. [Docket Item 8.] Respondent subsequently moved to seal certain exhibits [Docket Item 9], which the Court granted. [Docket Item 10.] Cardenas never filed any reply to Respondent's answer and, on January 7, 2019, mail sent to Cardenas was returned as undeliverable. [Docket Item 11.] It appears that Cardenas, Inmate No. 61132-050, was released from custody on December 2, 2016. BOP Inmate Locator, available at http://www.bop.gov/inmateloc/ (last visited on March 14, 2019). He was presumably released to immigration authorities for deportation.

         5. Discussion of Law.

         Under the Antiterrorism and Death Penalty Act (“AEDPA”), motions filed pursuant to 28 U.S.C. § 2255 are subject to a one-year statute of limitations. See 28 U.S.C. §§ 2244(d), 2255(f)(1). Specifically, the one-year period runs 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.