United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.
Robert Mejia pled guilty on September 27, 2010, to conspiracy
to cause interstate transportation of money obtained by fraud
(Count 1), interstate transportation of money obtained by
fraud (Count 2), and felon in possession of a firearm (Count
3). He was sentenced on January 10, 2011, to 60 months
imprisonment on Count 1 with concurrent terms of 96 months on
Counts 2 and 3. This sentence was directed to run
consecutively to the sentences he was serving in Montgomery
County (Nos. 115785 and 11385) or beginning April 28, 2014,
whichever first occurred.
6, 2016, Petitioner filed the pending motion to vacate
sentence pursuant to 28 U.S.C. § 2255 (ECF No. 31),
arguing that: 1) this court committed an error by failing
“to follow the procedures of waiver of indictment in
open court” (ECF No. 31-1, at 6); 2) this court
erroneously accepted his guilty plea even though the plea
expired on August 23, 2010, and was executed by petitioner on
August 24, 2010 (Id. at 8); and 3) he was charged
with conspiracy but there were no other co-conspirators
(Id. at 9). Further, Petitioner alleges that his
counsel was ineffective for failing to object to or raise the
aforementioned issues. (Id. at 11).
Government was directed to file a response (ECF No. 32), but
before it did so, a supplemental motion was filed on July 21,
2016, through Assistant Federal Public Defender Paresh Patel,
arguing that, in light of Johnson v. United States,
135 S.Ct. 2551 (2015), the “residual clause” in
the United States Sentencing Guidelines § 4B1.2(a)(2) is
also void for vagueness, meaning that Petitioner's prior
conviction for simple assault was improperly classified as a
crime of violence under the Guidelines (ECF No. 39). The
Government's response encompassed both the original and
supplemental motion, sought to stay the Johnson
issue, but argued that the other issues were untimely or
without merit. (ECF No. 42). Petitioner's reply joined in
the stay request, but also suggested that the entire motion
should be stayed. (ECF No. 49). He requested an opportunity
to file additional arguments when consideration recommenced.
No. formal action was taken by the court at that time.
April 24, 2017, Petitioner, again through counsel, filed a
notice of dismissal withdrawing the supplement. (ECF No. 50).
The notice specified that the dismissal related to the
supplement only and that Petitioner wanted the court to
adjudicate his motion to vacate sentence pursuant to 28
U.S.C. § 2255. The court approved the notice of
dismissal on May 9, 2017, and provided Petitioner 30 days to
file a supplemental reply. (ECF No. 51). The court received
correspondence from Petitioner on July 20, 2017, indicating
that he would not be filing a reply. (ECF No. 56).
previously noted, judgment was entered on January 11, 2011.
When no notice of appeal was filed, the judgment became final
on January 25, 2011. See Fed.R.App.P. 4(b)(1)(A)(i).
motion under § 2255 must be brought within one year of
the date that the conviction becomes final upon the
expiration of any direct appeals or the time to file such
appeals. See 28 U.S.C. § 2255(f)(1); Adams
v. United States, 173 F.3d 1339, 1342 n.2
(11th Cir. 1999) (citing Kapral v. United
States, 166 F.3d 565, 575 (3d Cir. 1999));
Clay v. United States, 537 U.S. 522, 527 (2003)
(holding that conviction becomes final for § 2255
limitations period, if no petition for a writ of certiorari
is filed, when the time to file such a petition expires).
Petitioner filed this motion to vacate sentence on May 6,
2016, years after the expiration of the limitations period.
Equitable tolling might extend the period if a movant
“presents (1) extraordinary circumstances, (2) beyond
his control or external to his own conduct, (3) that
prevented him from filing on time.” Rouse v.
Lee, 339 F.3d 238, 246 (4th Cir. 2003).
states that he previously filed a § 2255 petition with
this court in 2012, but that nothing was ever done with it.
The date on which he claims to have filed the earlier
petition is not entirely clear because he has provided the
dates of January 10, 2012 (ECF No. 31-1, at 2), and June 10,
2012 (ECF No. 31, at 3). This court has no record of any such
filing. The first docket entry after those related to the
entry of judgment appears on September 12, 2013, when
Petitioner requested a docket sheet. The docket was mailed to
him on September 17, 2013, and would have indicated to him
that no § 2255 petition was pending. He also sought the
court's assistance in obtaining material from his former
attorney, stating “I have not been able to file a
post-conviction in my case because of the above
situations.” (ECF No. 23). He requested another copy of
the docket sheet on May 20, 2014, which was sent in August
2014. A third copy was sent in early 2016 after Petitioner
indicated that the earlier copy had been lost.
March 2016, Petitioner filed a motion in the United States
Court of Appeals for the Fourth Circuit seeking permission to
file a second or successive application for relief, but the
Fourth Circuit denied that relief as unnecessary because no
earlier motion had been filed.
noted, there is absolutely no indication in this court's
records that Petitioner ever filed a timely motion in 2012.
Moreover, Petitioner did not take any measures to ascertain
what happened to any such motion until March of 2016, despite
receiving repeated indications from this court in the form of
copies of the docket that no motion had been received. Under
the circumstances, the motion filed in 2016 is untimely,
Petitioner has not shown that he actually filed a timely
motion in 2012, and there are no grounds for equitable
tolling. Accordingly, the motion will be denied.
to Rule 11(a) of the Rules Governing Proceedings under 28
U.S.C. § 2255, the court is also required to issue or
deny a certificate of appealability when it enters a final
order adverse to the applicant. A certificate of
appealability is a “jurisdictional prerequisite”
to an appeal from the court's earlier order. United
States v. Hadden, 475 F.3d 652, 659 (4thCir.
2007). A certificate of appealability may issue “only
if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. §
2253(c)(2). Where the court denies petitioner's motion on
a procedural ground, a certificate of appealability will not
issue unless the petitioner can demonstrate both “(1)
that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right and (2) that jurists of reason would
find it debatable whether the district court was correct in
its procedural ruling.” Rose v. Lee, 252 F.3d
676, 684 (4thCir. 2001) (internal marks omitted).
Upon review of the record, the court finds that Petitioner
does not satisfy the above standard. Accordingly, the court
will decline to issue a certificate of appealability.
separate order will be entered.