1

On November 3, 2003, Garcia pled guilty to possession with intent to distribute methamphetamine in violation

of 21 U.S.C. § 841. On February 2, 2004, the court sentenced Garcia to 100 months imprisonment and a five-year term

of supervised release. Garcia did not appeal this sentence. 

2 On May 5, 2005, Garcia filed a “Response to Order to Show Cause with Respect to the Statute of Limitations,”

dated May 3, 2005. After reviewing the “Response,” the court determined it was a motion for an extension of time to

file objections to the April 26, 2005 findings of the magistrate judge. As the court was preparing its order granting

Garcia’s request for more time to file his objections, the court received Defendant’s Objection (sic) to the Magistrate’s

Findings, Conclusions and Recommendation, filed on June 2, 2005 (“Objections”), thereby mooting Garcia’s “Response

to Order to Show Cause with Respect to the Statute of Limitations,” dated May 3, 2005 and filed May 5, 2005. The court

will consider the Objections, filed June 2, 2005, as timely, for purposes of conducting its review of the April 26, 2005

findings of the magistrate judge pursuant to 28 U.S.C. § 636(b)(1). 

Memorandum Opinion and Order – Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA §

§

 § Criminal Action No. 3:03-CR-268-L(01)

v. § (Civil Action No. 3:05-CV-0493-L)

§

JUAN GABRIEL GARCIA, #04075376 §

MEMORANDUM OPINION AND ORDER

Defendant/Movant Juan Gabriel Garcia (“Garcia”) seeks to vacate, set aside or correct his

sentence pursuant to 28 U.S.C. § 2255.1 Pursuant to 28 U.S.C. § 636(b), and an order of the court

in implementation thereof, this action was referred to the United States magistrate judge for

proposed findings and recommendation. On April 26, 2005, the Findings, Conclusions and

Recommendation of the United States Magistrate Judge were filed, to which Garcia filed objections

on June 2, 2005.2

I. The Magistrate Judge’s Findings and Recommendation

The magistrate judge recommended that Garcia’s § 2255 request be dismissed as time-barred

under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. 104-132, 110

 

 Case 3:03-cr-00268-L Document 30 Filed 06/22/05 Page 1 of 8 PageID 83
3

 Although Garcia did not identify the exact Supreme Court decisions to which he was referring, his Objections

make clear that he was referring to United States v. Booker, __ U.S. __, 125 S.Ct. 738 (2005) and Blakely v. Washington,

__ U.S. __, 124 S.Ct. 2531 (2004). In Blakely, the Supreme Court held that an enhanced sentence imposed by a judge

under the Washington Sentencing Reform Act violated the Sixth Amendment to the United States Constitution since the

maximum sentence a judge may impose is the sentence authorized “solely on the basis of the facts reflected in the jury

verdict or admitted by the defendant.” 124 S.Ct. at 2537. In Booker, the Supreme Court (relying on Blakely) found the

federal Sentencing Guidelines unconstitutional insofar as they mandated sentencing enhancements above the Guidelines

range, and held that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or

proved to a jury beyond a reasonable doubt.” 125 S.Ct. at 756. 

Memorandum Opinion and Order – Page 2

Stat. 1214 (1996), codified at 28 U.S.C. § 2254(d). AEDPA provides in relevant part that the oneyear limitations period for federal inmates seeking relief under 28 U.S.C. § 2255 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 Untied States is removed, if the

movant is prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court,

if that right has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been

discovered through the exercise of due diligence.

28 U.S.C. § 2255. On March 21, 2005, the magistrate judge directed Garcia to file a preliminary

response addressing the limitations issue. On April 3, 2005, Garcia filed his response, stating that

under 28 U.S.C. § 2255(2) his motion was not time-barred because the “Supreme Court of the

United States recently declared the Federal Sentencing Guidelines unconstitutional [which decision]

remov[ed] the impediment allowing movant to challenge his wrongful sentence.” Resp. at 1.3

Garcia also stated that his motion was not time-barred under § 2255(3), since he could not have filed

his motion before the issuance of the Blakely and Booker decisions by the Supreme Court. Id. In

his findings and recommendation, the magistrate judge rejected Garcia’s § 2255(2) argument as

 

 Case 3:03-cr-00268-L Document 30 Filed 06/22/05 Page 2 of 8 PageID 84
4

At times, the magistrate judge inadvertently cites to 28 U.S.C. § 2244(d)(1)(A), rather than § 2255(1), as

establishing the one-year limitations period applicable in this case. See Findings at 4. Section 2244(d)(1) applies the

one-year limitations period to applications for the writ of habeas corpus by a “person in custody pursuant to the judgment

of a State court.” Section § 2255(1) establishes the corollary limitations period for prisoners in federal custody

challenging their sentence, as is the case here. Garcia similarly cites to § 2244 instead of § 2255. This oversight is

harmless, however, as the statutes are otherwise identical. 

5

Fed. R. App. P. 4(b)(1)(A) provides that in a criminal case, “a defendant’s notice of appeal must be filed in

the district court within 10 days after the later of (i) the entry of either the judgment or the order being appealed; or (ii)

the filing of the government’s notice of appeal.”

Memorandum Opinion and Order – Page 3

frivolous, since Garcia had “alleged no government created impediment which prevented him from

filing a timely § 2255 motion.” Findings at 3. The magistrate judge also rejected Garcia’s § 2255(3)

argument as “presently inapplicable to Movant[]” since as of the date of the findings, the Supreme

Court had not yet addressed whether Booker should be made retroactively applicable to cases on

collateral review. Id. at 3-4. The magistrate judge found that under § 2255(4), “the facts supporting

the claims raised in the instant § 2255 motion became known or could have become known prior to

the date Movant’s judgment of conviction became final.” Id. at 4.4

 Garcia was sentenced on

February 2, 2004, the judgment of conviction was filed on February 5, 2004, and entered on the

docket on February 10, 2004. Relying on the latter date, the magistrate judge found that Garcia’s

conviction became final on February 25, 2004, the last day he could have appealed to the Fifth

Circuit Court of Appeals the judgment of conviction entered on February 10, 2004. Id.5

 The oneyear period began to run on February 26, 2004, and expired on February 25, 2005. Because Garcia

did not file his § 2255 motion until March 10, 2005, the magistrate judge concluded that Garcia’s

motion was untimely under the AEDPA, and accordingly recommended that the case be dismissed

as time-barred. The magistrate judge did not address whether the recommended dismissal was with

prejudice or without prejudice. 

 

 Case 3:03-cr-00268-L Document 30 Filed 06/22/05 Page 3 of 8 PageID 85
Memorandum Opinion and Order – Page 4

II. Defendant’s Objections

Garcia objects to the magistrate judge’s finding that his § 2255 request was time-barred. His

first objection is that the limitations period should be calculated under § 2255(2), under which the

limitations period would begin to run on: 

(2) the date on which the impediment to making a motion created by governmental

action in violation of the Constitution or laws of the Untied States is removed, if the

movant is prevented from making a motion by such governmental action.

Garcia’s objections state that this subsection should be applied since:

Congress implemented and enacted the previous Federal Sentencing

guidelines some 21 years ago around 1984 and told the federal judges

to follow them. Congress is considered a governmental entity. Since

that time federal judges have followed those guidelines. In fact those

same guidelines was [sic] applied in petitioner’s case. So it can be

said that governmental action implemented some 21 years ago and

subsequently invoked at the time of petitioner’s sentencing on 2-2-04,

prevented petitioner from filing his now asserted claim. That

governmental action now determined [sic] violated the Constitution

of [sic] the laws of the United States.

Objections at 2. Essentially, Garcia is contending that the statute of limitations on his § 2255

motion should have been calculated from the date of either the Supreme Court’s decision under

United States v. Booker, __ U.S. __, 125 S.Ct. 738 (2005) (decided on January 12, 2005), or Blakely

v. Washington, __ U.S. __, 124 S.Ct. 2531 (2004) (decided on June 24, 2004), as these cases

purportedly removed an impediment created by governmental action, namely the United States

Sentencing Guidelines under which he was sentenced. See Objections at 2 and see supra n.3. This

objection is overruled. The government-created impediment exception requires a prisoner to show

that: (1) he was prevented from filing a petition (2) by [government] action (3) in violation of the

Constitution or federal law. Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). Garcia has not

demonstrated any governmental action that prevented him from filing a petition. Even assuming that

 

 Case 3:03-cr-00268-L Document 30 Filed 06/22/05 Page 4 of 8 PageID 86
Memorandum Opinion and Order – Page 5

the federal Sentencing Guidelines could be deemed governmental action, Garcia has not shown that

the guidelines prevented him from filing his § 2255 motion. 

Garcia’s second objection is based on 28 U.S.C. § 2255(3), under which Garcia argues that

the limitations period would begin to run:

(3) on the date on which the right asserted was initially recognized by the Supreme Court,

if that right has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review.

Garcia contends that the Booker and Blakely decisions (see supra at n.3) announced a new

constitutional right which would allow him to challenge his sentence which was imposed under the

federal Sentencing Guidelines. Objections at 2-3. The magistrate judge did not reject this claim,

but found that § 2255(3) was “presently inapplicable to Movant[,]” given that the Supreme Court

had not determined yet whether the cases applied retroactively to cases on collateral review.

Findings at 4. Neither the United States Supreme Court nor the Fifth Circuit has determined whether

the Supreme Court’s holdings in Blakely and Booker should be applied retroactively to cases on

collateral review. Therefore, the court agrees with the magistrate judge and overrules Garcia’s

objection as premature. With regard to Garcia’s argument that his § 2255 motion is not time-barred

under § 2255(3), the court will dismiss the motion without prejudice. Should the Supreme Court

announce that Blakely and Booker apply retroactively to cases on collateral review, Garcia will be

permitted to file a renewed § 2255 motion. See Simpson v. United States, 376 F.3d 679 (7th Cir.

2004) (where federal prisoner filed a § 2255 motion seeking to challenge his sentence under Blakely,

 

 Case 3:03-cr-00268-L Document 30 Filed 06/22/05 Page 5 of 8 PageID 87
6

In dismissing the § 2255 application without prejudice, the court in Simpson v. United States, 376 F.3d 679,

681 (7th Cir. 2004) stated: “Assuming that the Supreme Court announced a new constitutional rule in Blakely and

assuming that [defendant’s] sentence violates that rule, the proposed claim is premature.”

Memorandum Opinion and Order – Page 6

dismissing without prejudice his application as prematurely filed since the Supreme Court had yet

to make Blakely applicable to cases on collateral review).6

 

As his third objection, Garcia argues that his § 2255 motion to vacate, set aside or correct

his sentence is not time-barred under § 2255(4), pursuant to which the limitations period would

begin to run on the date “on which the facts supporting the claim or claims presented could have

been discovered through the exercise of due diligence.” Objections at 3-4. According to Garcia,

the limitations period would begin to run on either the date Blakely was decided (June 24, 2004) or

Booker was decided (January 12, 2005), rendering his § 2255 motion timely. As Garcia did not

make an argument under § 2255(4) in his preliminary response to the magistrate judge, the

magistrate judge did not consider this argument. For the same reasons as set forth above with regard

to Garcia’s § 2255(3) argument, the court overrules Garcia’s objection as premature. With regard

to Garcia’s argument that his § 2255 motion is not time-barred under § 2255(4), the court will

dismiss the motion without prejudice. Should the Supreme Court announce that Blakely and Booker

apply retroactively to cases on collateral review, Garcia will be permitted to file a renewed § 2255

motion.

Finally, Garcia objects to the magistrate judge’s finding that his request was time-barred on

the basis that he is entitled to equitable tolling of the one-year period. See Objections at 4.

AEDPA’s limitations period is not jurisdictional and is subject to equitable tolling. Davis v.

Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Equitable tolling

is appropriate, however, only in “rare and exceptional circumstances.” Id. Garcia argues that

 

 Case 3:03-cr-00268-L Document 30 Filed 06/22/05 Page 6 of 8 PageID 88
Memorandum Opinion and Order – Page 7

equitable tolling should be applied here since he had limited access to the jail law library (one hour

per week) and because the law library was inadequate. The Fifth Circuit has made clear that “an

inadequate law library does not constitute a rare and exceptional circumstance warranting equitable

tolling.” Scott v. Johnson, 227 F.3d 260, 263 n.3 (5th Cir.2000), cert. denied, 532 U.S. 963 (2001)

(internal quotations and citation omitted); Felder v. Johnson, 204 F.3d 168, 172-74 (5th Cir.), cert.

denied, 531 U.S. 1035 (2000) (same); Egerton, 334 F.3d at 437 (same). Moreover, the court does

not find that one hour per week access to the law library constitutes a “rare and exceptional

circumstance.” See generally Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (“[e]quitable

tolling applies principally where the plaintiff is actively misled by the defendant about the cause of

action or is prevented in some extraordinary way from asserting his rights.”) (citation omitted).

Accordingly, the court overrules Garcia’s fourth objection to the magistrate judge’s findings.

III. Conclusion

Having reviewed the pleadings, file and record in this case, the findings and conclusions of

the magistrate judge, and having considered Defendant’s objections thereto, the court determines

that the findings and conclusions are correct in recommending dismissal of the motion under 28

U.S.C. § 2255 as barred by the applicable one-year statute of limitations. Accordingly, the

magistrate’s findings are accepted as those of the court. Garcia’s request to vacate, set aside or

correct his sentence under 28 U.S.C. § 2255 is denied, and this action is dismissed with prejudice

as time-barred insofar as Garcia seeks to rely on 28 U.S.C. § 2255(2) and the doctrine of equitable

estoppel to argue that his § 2255 motion is not time-barred. Garcia’s request to vacate, set aside or

correct his sentence under 28 U.S.C. § 2255 is denied, and this action is dismissed without

prejudice as time-barred insofar as Garcia seeks to rely on 28 U.S.C. § 2255(3) or (4) to argue that

 

 Case 3:03-cr-00268-L Document 30 Filed 06/22/05 Page 7 of 8 PageID 89
Memorandum Opinion and Order – Page 8

his § 2255 motion is not time-barred. Should the Supreme Court or the Fifth Circuit announce that

the decision in Booker applies retroactively to cases on collateral review, Garcia will be permitted

to file a renewed § 2255 motion. A renewed motion will not be permitted under any other

circumstances. 

It is so ordered this 22nd day of June, 2005.

_________________________________

Sam A. Lindsay

United States District Judge

 

 Case 3:03-cr-00268-L Document 30 Filed 06/22/05 Page 8 of 8 PageID 90