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Cindy Torres v. United States of America

October 3, 2012

CINDY TORRES, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: John F. Keenan, United States District Judge:

OPINION & ORDER

Before the Court is Petitioner Cindy Torres's ("Torres" or "Petitioner") pro se motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 ("Section 2255"). For the following reasons, Petitioner's motion is denied.

I.Background

On February 9, 2010, Torres pleaded guilty to (1) conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin, in violation of 21 U.S.C. §§ 813, 841(a), 841(b)(1)(A), and 846; and (2) conspiracy to launder narcotics proceeds, in violation of 18 U.S.C. § 1956. As Torres was eligible for relief under 18 U.S.C. § 3553(f), the 120-month mandatory minimum term of imprisonment on the first count did not apply. In a plea agreement, the Government and Torres stipulated that the appropriate sentencing range under the United States Sentencing Guidelines was 87 to 108 months. On August 17, 2010, Torres was sentenced to two concurrent terms of eighty-seven months of incarceration to be followed by concurrent terms of supervised release totaling five years. The Judgment of Conviction was entered on August 18, 2010.

II.Timeliness

As the Court noted in its Order of December 1, 2011, this petition may be time-barred. A federal prisoner seeking relief under Section 2255 must generally file a motion within one year from the latest of four benchmark dates: (1) when the judgment of conviction becomes final; (2) when a government-created impediment to making such a motion is removed; (3) when the right asserted is initially recognized by the Supreme Court, if it has been made retroactively available to cases on collateral review; or (4) when the facts supporting the claim(s) could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2255(f). Torres's conviction became final on September 2, 2010, "the day after [her] time to appeal expired." Wims v. United States, 225 F.3d 186, 188 (2d Cir. 2000); Fed. R. App. P. 4(b)(1)(A)(i) (fourteen-day period to file a notice of appeal in a criminal case). Torres had one year, or until September 2, 2011, to file a timely Section 2255 Motion.

Torres dated her handwritten motion November 13, 2011, but has not told the Court when she gave her motion to prison officials to be mailed to the Court. See Noble v. Kelly, 246 F. 3d 93, 97-98 (2d Cir. 2001) (holding that habeas corpus petitions are deemed "filed" on the date it is given to prison officials for mailing to the district court). For the purposes of this motion, however, the Court will assume it was filed on November 13, 2011. Because the motion was filed more than two months after the statutory deadline, the Court directed Torres to file an Affirmation explaining why the Court should not deny the motion as time-barred. (Order of Dec. 1, 2011). Torres filed her affirmation for timeliness on December 15, 2011.

In certain situations, petitioners are entitled to equitable tolling of the limitations deadline on a Section 2255 motion. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). A petitioner must satisfy two elements to benefit from equitable tolling. First, a petitioner must show that she exercised "reasonable diligence" during the limitations period, and second, that "extraordinary circumstances" precluded her from timely filing. Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001).

Petitioner has asserted two reasons the Court should toll the one-year limitations period: (1) her attorney advised her "not to file a direct appeal because the court would give [her] more time on [her] sentence"; and (2) as a Hispanic American whose native language is Spanish, she was unaware of the limitations period.

As to Petitioner's assertion that counsel advised her not to file a direct appeal because it could subject her to a longer sentence, she has not adduced any evidence to prove this allegation. Even if it were true, however, Petitioner has not satisfied the "diligence" requirement for equitable tolling. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). In her Affirmation for Timeliness, Petitioner does not indicate that she has been pursuing her rights since her conviction. Indeed, she does not state that she undertook any efforts to research her claim. By failing to take steps to advance her case, Petitioner cannot establish grounds for equitable tolling. See Rivas v. Fischer, 687 F.3d 514 (2d Cir. 2012) (finding that petitioner did not establish that he acted diligently during the limitations period); Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (describing an unexplained one year and eight and a half month "period of inactivity" as demonstrative of "a marked lack of diligence").

Next, Petitioner's suggestion that a language barrier prevented her from learning of the limitations period is also insufficient to warrant tolling. While a "language deficiency" may give rise to equitable tolling in some circumstances, the Second Circuit has held that "the diligence requirement of equitable tolling imposes on the prisoner a substantial obligation to make all reasonable efforts to obtain assistance to mitigate his language deficiency." Diaz v. Kelly, 515 F.3d 139, 154 (2d Cir. 2008). Petitioner has not alleged that she made any attempt to learn about the legal requirements of filing a Section 2255 petition, or contact a Spanish-speaking person outside the prison who could assist her. See id. (affirming district court's rejection of equitable tolling where petitioners made "no allegation of any efforts to contact anyone outside the prison who might assist in making them aware, in their language, of legal requirements for filing a habeas corpus petition, nor what efforts were made to learn of such requirements within their places of confinement"). The Court also notes that at the time of her guilty plea, Petitioner informed the Court that she could "read, speak, and understand English." (Tr. of Feb. 9, 2012 at 3).

Therefore, Petitioner's motion is time-barred, and not subject to equitable tolling.

III.Plea Agreement

Even if this motion were not time-barred, it would still warrant denial under the plea agreement. Under the terms of the agreement, which Torres signed on February 9, 2010, she agreed that if she received a sentence within the ...


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