United States District Court, D. New Jersey
B. SIMANDLE U.S. District Judge.
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:
Factual and Procedural Background.
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
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.
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.]
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
Discussion of Law.
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
(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
(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