United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DISMISSING
DEFENDANT'S HABEAS PETITION
Carlos Pua Caudillo asks the Court to vacate or reduce his
federal sentence. See MOTION UNDER 28 U.S.C. §
2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE (Doc. No. 59)
(Motion). Defendant asserts his counsel rendered
ineffective assistance and failed to adequately inform him of
the terms of his plea agreement. After reviewing the matter
sua sponte under Habeas Corpus Rules 4(b) and 11(a),
the Court will dismiss the Motion.
pled guilty to possession with intent to distribute
methamphetamine in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C). (Doc. No. 42). He received a
sentence of 78 months imprisonment. (Doc. No. 54). The Court
entered JUDGMENT on Defendant's conviction and sentence
on November 24, 2015. (Doc. No. 55). No appeal was filed.
Defendant's conviction therefore became final on December
9, 2015, the first business day following the expiration of
the 14-day appeal period. See United States v.
Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006); U.S.
v. Garcia-Roman, 466 Fed. App'x 750, 751 (10th Cir.
2012). Over a year and a half later, on June 22, 2017,
Defendant filed the motion. (Doc. No. 59).
ORDER TO SHOW CAUSE (Doc. No. 64) entered August 24, 2017,
the Court required Defendant to demonstrate why the Motion
should not be dismissed because it was filed after the
one-year limitation period in § 2255(f)(1). See also
U.S. v. McGaughy, 670 F.3d 1149, 1152 n. 1 (10th Cir.
2012) (Motions under § 2255 must generally be filed
within one year after the defendant's conviction becomes
RESPONSE TO SHOW CAUSE (Doc. No. 65) (Response) was filed
September 20, 2017. Defendant offered the following
explanation in an attempt to toll the one-year period:
Petitioner is not a natural U.S. citizen who possesses the
skills to have anticipated his incompetent defense counsel
behavior…. Petitioner is late because it assume[d] the
government would retaliate, defense counsel made it clear
that I should be scare[d] of any decision to appeal.
Petitioner was in fact scare[d] and for that reason
hesitate[d] for so long… [A]lso soon after my sentence
I was in transfer, without knowing the law…. I
dedicated myself to work …, school, and exercise
… to release my mental stress against my regret of
been bull[ied] and let others successful shame me. The
hardship that I been put through has open[ed] my eyes and now
finally I get a chance to explain the unlawful means that
brought me to a plea of guilty.
Response, p. 2.
explanation is not sufficient to toll the statute of
limitations. Equitable tolling “is only available when
an inmate diligently pursues his claims and demonstrates that
the failure to timely file was caused by extraordinary
circumstances beyond his control.” Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (addressing
§ 2254). See also U.S. v. Cordova, 1999 WL
1136759, * 1 (10th Cir. Dec. 13, 1999) (equitable tolling
applies in § 2255 cases). “[A]n inmate bears a
strong burden to show specific facts to support his claim of
extraordinary circumstances….” Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). He must
provide “specificity regarding the alleged lack of
access and the steps he took to diligently pursue his federal
claims.” Miller v. Marr, 141 F.3d 976, 978
Tenth Circuit has held that the “lack of knowledge
regarding the law, including ignorance resulting from
language barriers, does not toll the statute of
limitations.” U.S. v. Galindo, 406 Fed.
App'x 322, 324 (10th Cir. 2001) (unpublished) (citing
Gibson v. Klinger, 232 F.3d 799, 808 (10th
Cir.2000); Yang v. Archuleta, 525 F.3d 925, 929-30
(10th Cir.2008)). The limitation period is also not tolled
where, as here, an “attorney advised [the petitioner]
that there were no obvious claims that justified filing an
appeal on his behalf.” U.S. v. Hines, 592 Fed.
App'x 755, 756 (10th Cir. 2015) (unpublished). See
also Marsh, 223 F.3d at 1220 (“[Petitioner chose
to rely upon assistance from the … attorney ….
The fact that an [attorney] was assisting in drafting the
… petition does not relieve [the inmate] from the
personal responsibility of complying with the law.”).
Although Defendant may have felt scared to file an appeal, he
has not argued that he took any steps to file his habeas
petition by December 9, 2016 or that he lacked access to the
Court. Equitable tolling is therefore not warranted in this
Court also notes that none of § 2255(f)'s statutory
tolling provisions apply. Under that section, the one-year
limitation period can be extended where:
(1) The inmate was prevented from making a motion by
“governmental action in violation of the Constitution
or laws of the United States....” § 2255(f)(2);
(2) The motion is based on a “right [that] has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” §
(3) The inmate could not have discovered “the facts
supporting the claim … through the exercise of due
diligence.” § 2255(f)(4).
Response does not raise any of these issues. Consequently,
Defendant's Motion must be dismissed as untimely pursuant
to 28 U.S.C. § 2255(f)(1).
Habeas Corpus Rule 11(a), the Court determines sua
sponte that Defendant has failed to make a substantial
showing that he has been denied a constitutional right. The