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Sosa-Jimenez v. United States

United States District Court, N.D. Iowa, Western Division

February 11, 2014

EDER NOE SOSA-JIMENEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM OPINION AND ORDER REGARDING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT

MARK W. BENNETT, District Judge.

I. INTRODUCTION

This case is before me on the respondent's motion for summary judgment, in which the respondent seeks dismissal of petitioner Eder Noe Sosa-Jimenez's pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody as untimely pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Sosa-Jimenez resists respondent's motion and contends that the statute of limitations on his § 2255 motion should be equitably tolled, owing to the conduct of his trial counsel, which prevented him from timely filing his § 2255 Motion.

A. Procedural Background

1. Criminal case proceedings

On January 24, 2008, Sosa-Jimenez, along with three other individuals, was charged by a four-count Indictment. Sosa-Jimenez was charged in Count 1 with being a previously deported alien who was found in the United States without the express consent of the Attorney General or his successor, the Secretary for Homeland Security, in violation of 8 U.S.C. § 1326(a). The other three defendants were charged, in Counts 2 through 4, with illegal entry, in violation of 8 U.S.C. § 1325(a). On April 18, 2008, Sosa-Jimenez's case was severed from the other defendants because each of the defendants was charged with a completely separate and unrelated crime, and Sosa-Jimenez, alone, was charged with a felony while the others were charged with misdemeanors.

On May 29, 2008, a seven-count Superseding Indictment was filed, charging Sosa-Jimenez and Leandro Cervantez-Murillo with conspiring to distribute and possess with intent to distribute 50 grams or more of pure methamphetamine or a mixture or substance containing 500 grams of methamphetamine, and to employ, hire, use, persuade, induce, or coerce a minor to distribute or possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 861(b) (Count 1); distributing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count 2); employing, hiring, using, persuading, inducing, or coercing a minor to distribute, and aid and abet the distribution of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 861(a)(1), 861(b), and 18 U.S.C. § 2 (Count 3); and distributing and aiding and abetting the possession with intent to distribute 50 grams or more of a methamphetamine mixture which contained 5 grams or more of pure methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2 (Count 5). Sosa-Jimenez was also charged with possessing with intent to distribute and aiding and abetting the possession with intent to distribute 50 grams or more of a methamphetamine mixture which contained 5 grams or more of pure methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2 (Count 6) and with being a previously deported alien who was found in the United States without the express consent of the Attorney General or his successor, the Secretary for Homeland Security, in violation of 8 U.S.C. § 1326(a) (Count 7).[1]

On September 18, 2008, Sosa-Jimenez pleaded guilty to the illegal reentry charge.[2] On September 22, 2008, he proceeded to trial on the remaining charges. Following a three day trial, Sosa-Jimenez was convicted, on September 24, 2008, on Counts 1, 2, 3, and 5, but was found not guilty on Count 6. On April 8, 2009, Sosa-Jimenez's counsel filed a motion for downward variance. Sosa-Jimenez appeared before me on April 17, 2009, for sentencing. I found that Sosa-Jimenez's total offense level was 37 with a criminal history category of I, for an advisory United States Sentencing Guideline range of 210 to 262 months. I granted Sosa-Jimenez's motion for downward variance, and sentenced him to 180 months of imprisonment on Counts 1, 3, and 5, and 24 months imprisonment on Count 7, with the sentences to be served concurrently. Judgment was entered accordingly on April 20, 2009. Sosa-Jimenez did not appeal his conviction or sentence.

2. Petitioner's § 2255 Motion

On March 28, 2011, Sosa-Jimenez filed a pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. In his pro se § 2255 motion, Sosa-Jimenez asserts that his trial counsel provided ineffective assistance. More specifically, he claims that his trial counsel was ineffective in failing to file an appeal after sentencing, despite his request that he do so. After respondent filed its answer, I set a briefing schedule and counsel was appointed to represent Sosa-Jimenez on the § 2255 motion. Sosa-Jimenez timely filed his supplemental brief in support of his § 2255 motion. Respondent, in turn, filed a motion to dismiss, seeking dismissal of Sosa-Jimenez's § 2255 Motion as untimely pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Sosa-Jimenez filed a resistance, conceding that his § 2255 Motion was not filed within one year of the date of the judgment of conviction, but asserting that the statute of limitations on his § 2255 Motion should be equitably tolled, owing to the conduct of his trial counsel, which prevented him from timely filing his § 2255 motion. Because both parties had submitted affidavits that I ordinarily could not consider on a Rule 12(b)(6) motion to dismiss, I notified the parties that I was converting respondent's motion to dismiss into a motion for summary judgment pursuant to Rules 12(d) and 56 of the Federal Rules of Civil Procedure, and set a schedule for the parties to file any supplemental materials in support of their position. Respondent did not submit any additional materials. Sosa-Jimenez filed a supplemental brief in which he attached his original petition and supporting affidavit.[3]

B. Factual Background

The facts here are largely disputed. Whether the disputed allegations give rise to a genuine issue of material fact will be discussed in my legal analysis.

Sosa-Jimenez avers that:

2. On the day I was sentenced, I talked to Mr. Esteves in Court to advise him of my desire to Appeal.
3. After sentencing by the Trial Judge I was informed of my right to appeal and asked by the Trial Judge if I wished to appeal I answered yes and he advised Mr. Esteves to file a Notice of Appeal and he failed to do so.
4. Mr. Esteves informed me after sentencing by the trial Court that he would file the notice of appeal within the 10 day notice.
5. I wrote Mr. Esteves many times from Federal Prison requesting him about my appeal and never heard anything, he abandoned me and denied me my ...

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