United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER REGARDING RESPONDENT'S MOTION TO DISMISS PETITIONER'S § 2255 MOTION AS UNTIMELY
MARK W. BENNETT, District Judge.
On June 7, 2013, the Clerk of Court received, and on June 11, 2013, the Clerk of Court filed petitioner Lorenzo Alvarez-Santos's pro se Application To Proceed In District Court Without Prepaying Fees Or Costs (IFP Application) (Civ. docket no. 1), dated May 14, 2014. Alvarez-Santos attached to his IFP Application a copy of a report of his prison account, dated May 29, 2013; his pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aide, Or Correct A Sentence By A Person In Federal Custody (§ 2255 Motion), dated May 14, 2013; and a cover letter to the Clerk of Court, listing all of these items, dated June 3, 2013. Alvarez-Santos's § 2255 Motion seeks relief from his guilty plea, on July 12, 2011, to one count of possessing with intent to distribute 50 grams or more of actual (pure) methamphetamine, in violation of 21 U.S.C. § 841, and his sentence to 135 months of imprisonment, on May 15, 2012, see Judgment (Crim. docket no. 135) (entered May 16, 2012). Alvarez-Santos did not appeal his conviction or sentence. By Order (Civ. docket no. 2), filed June 11, 2013, I granted Alvarez-Santos's IFP Application; directed the Clerk of Court to file Alvarez-Santos's § 2255 Motion (which was filed at Civ. docket no. 3); and directed the respondent to file an answer or response to Alvarez-Santos's § 2255 Motion on or before August 12, 2013.
In his pro se § 2255 Motion, Alvarez-Santos asserts the following four claims for § 2255 relief: (1) failure of trial counsel to raise or advise him about the "safety valve" under U.S.S.G. § 5C1.2, when negotiating Alvarez-Santos's plea agreement; (2) failure of the sentencing court to reduce Alvarez-Santos's sentence for acceptance of responsibility, under U.S.S.G. § 3E1.1(a), although the factual allegations supporting this claim refer to the court's denial of a "downward variance, " despite his cooperation and admission of responsibility; (3) error (apparently by both the court and trial counsel) in denying a four-level reduction without which Alvarez-Santos claims he would never have agreed to plead guilty; and (4) trial counsel's failure to contest the lack of a four-level reduction during sentencing. In response to paragraph 18 of the form § 2255 Motion, which directs a petitioner to explain why his § 2255 Motion was not being filed within one year of his judgment of conviction, Alvarez-Santos averred as follows:
Throughout this last calendar year, movant was awaiting word on any pending appeal. This was only through the claim of former counsel. Once contacting the Appellate Court to inquire on any appeal status, it was gathered that movant had no appeal motion pending. Movant submits this motion only following the confirmation of no other post-conviction proceeding being currently under review. Movant's sentencing took place May 15, 2012.
§ 2255 Motion, ¶ 18.
On June 20, 2013, the respondent filed the Motion To Dismiss Petitioner's Motion Under 28 U.S.C. § 2255 (Civ. docket no. 4) now before me. In that Motion, the respondent argues that the deadline for filing of Alvarez-Santos's § 2255 Motion, under the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2255(f), expired on May 26, 2013, one year after the deadline for Alvarez-Santos to appeal the judgment in his case expired. The respondent points out that Alvarez-Santos did not file his § 2255 Motion until June 3, 2013, the date of his cover letter to the Clerk's Office with his IFP Application and § 2255 Motion. Consequently, the respondent asserts that Alvarez-Santos's § 2255 Motion was seven days late. The respondent also asserts that Alvarez-Santos has not asserted any explanation for waiting a full year for an appeal that was never filed before filing his § 2255 Motion, so that there are no circumstances justifying equitable tolling of the statute of limitations for his § 2255 Motion. Therefore, the respondent seeks dismissal of Alvarez-Santos's § 2255 Motion as untimely.
By Order (Civ. docket no. 5), filed June 21, 2013, I directed Alvarez-Santos to file, with the aid of counsel, a response to the respondent's Motion To Dismiss on or before July 31, 2013, and gave the respondent to and including August 16, 2013, to file any reply brief. After extensions of time to file a response, counsel for Alvarez-Santos filed a Report To The Court And Motion For Permission To Withdarw (Civ. docket no. 14) on November 27, 2013. In counsel's Report And Motion, counsel stated that, after a "thorough review of the record, " and communication with Alvarez-Santos, counsel had concluded that Alvarez-Santos had adequate command of English to communicate with counsel and the court without the assistance of an interpreter; that Alvarez-Santos asserted that he prepared his pro se § 2255 Motion and placed it in the prison mailing system on May 14, 2013, notwithstanding that his letter transmitting his § 2255 Motion and IFP Application was dated June 3, 2013; and that, if his § 2255 Motion was not timely under the "mailbox rule, " that "equitable tolling" should apply, because Alvarez-Santos was "diligent" in preparing his § 2255 Motion, because he is not well-educated and English is not his first language. Counsel submitted an Anders Brief (Civ. docket no. 15) in support of Alvarez-Santo's § 2255 Motion, incidentally addressing the timeliness issue, but requested that Alvarez-Santos be allowed to submit a pro se brief, as well.
In an Order (Civ. docket no. 16), filed on December 2, 2013, I granted counsel's Motion To Withdraw, gave Alvarez-Santos to and including January 11, 2014, to file a supplemental brief in support of his resistance to respondent's Motion To Dismiss, and gave the respondent to and including February 1, 2014, to file any reply. Alvarez-Santos did not file any supplemental brief, nor did the respondent file any reply.
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a pre-answer motion to dismiss for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). Although factual "plausibility" is ordinarily the central focus of Rule 12(b)(6) motions to dismiss under the Twom-bal standard,  various federal Circuit Courts of Appeals have expressly recognized, and the Eighth Circuit Court of Appeals has suggested, that the Twom-bal standard still permits dismissal pursuant to Rule 12(b)(6) of a claim that lacks a cognizable legal theory, in addition to permitting dismissal for factual implausibility. See, e.g., Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013); Ball v. Famiglio, 726 F.3d 448, 469 (3d Cir. 2013) (a claim may be dismissed if it is based on an "indisputably meritless legal theory"); Commonwealth Property Advocates, L.L.C. v. Mortgage Electronic Registration Sys., Inc., 680 F.3d 1194, 1202 (10th Cir. 2011) ("Dismissal is appropriate if the law simply affords no relief."); see also Philadelphia Indem. Ins. Co. v. Youth Alive, Inc., 732 F.3d 645, 649 (6th Cir. 2013) (recognizing that a claim must plead sufficient facts under a "viable legal theory"); cf. Brown v. Mortgage Electronic Registration Sys., Inc., 738 F.3d 926, 933 n.7, 934 (8th Cir. 2013) (noting the appellate court's agreement "with the district court's sound reasoning that the facts pled do not state a cognizable claim under Arkansas law" and holding that dismissal pursuant to Rule 12(b)(6) was appropriate, because Arkansas law did not impose the purported duty on which an unjust enrichment claim and a state statutory claim were based). It is precisely the lack of a cognizable legal theory for Alvarez-Santos's § 2255 Motion, because it is untimely, that is the proper basis for the respondent's Motion To Dismiss in this case.
On the respondent's Motion To Dismiss pursuant to Rule 12(b)(6) in this case, I may consider the docket in the underlying criminal case, from which Alvarez-Santos seeks § 2255 relief, because it is "incorporated by reference or integral to [his] claim, '" Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012) (quoting 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed. 2004)), and because it is "necessarily embraced by the pleadings.'" Whitney, 700 F.3d at 1128 (quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003)).
As amended by the AEDPA, 28 U.S.C. § 2255(f) provides as follows:
(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
(1) the date on which the judgment of conviction becomes final;
(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 ...