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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America, 

Plaintiff/Respondent, 

vs.

Ignacio Garcia-Rebollar, 

Defendant/Movant. 

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No. CR 01-017PHX-JAT 

 CV 05–842 PHX-JAT (LOA)

 REPORT AND

RECOMMENDATION

This matter arises on Movant’s Motion to Vacate, Set Aside, or Correct Sentence

by a person in Federal Custody pursuant to 28 U.S.C. § 2255 (document # 295). Respondent

has filed a response contending that the Motion should be dismissed as untimely because it

was filed after the expiration of the one-year limitations period. See, 28 U.S.C. § 2255. 

Movant has filed a reply. (document # 306) 

FACTUAL AND PROCEDURAL HISTORY

 On August 30, 2002, Movant pleaded guilty to Conspiracy to Commit Hostage

Taking (18 U.S.C. § 1203) and Conspiracy to Harbor Illegal Aliens (18 U.S.C. §

1324(a)(1)(A)(iii) and (a)(1)(A)(v)(I)). (document # 249) On December 3, 2002, the district

court sentenced Movant to 250 months imprisonment on the conspiracy to commit hostage

taking conviction and 120 months on the conspiracy to harbor illegal aliens conviction, both

sentences to run concurrently. (document # 269) Movant also received concurrent terms of

supervised release on both convictions and was ordered to pay a special assessment of $200. 

(Id.) 

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Although Calderon was based on a § 2254 petition, it has been held to apply to § 2255

petitions. See, Burns v. Morton, 134 F.3d 109, 112 (3rd Cir. 1998).

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On December 10, 2002, Movant filed a notice of appeal. (document # 274) On

December 9, 2003, the Ninth Circuit issued its opinion affirming Movant's convictions and

sentences. See, United States v. Melchor-Zaragoza, 351 F.3d 925 (9th Cir. 2003). Movant

did not file a petition for writ of certiorari in the United States Supreme Court. 

On March 18, 2005, Movant filed a motion for § 2255 relief in this Court. His

motion was signed on March 14, 2005. (document # 295) 

STATUTE OF LIMITATIONS

On April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”) went into effect drastically altering the time limit imposed on prisoners seeking

collateral relief in federal court. Prior to the AEDPA, virtually no time limit restrained the

filing of motions for collateral relief in federal court. Calderon v. United States Dist. Court,

128 F.3d 1283, 1286 (9th Cir. 1998), overruled, in part, on other grounds, 163 F.3d 530 (9th

Cir. 1998).1 The AEDPA, however, established a one-year statute of limitations for such

motions. 28 U.S.C. § 2255. Respondent contends that Movant’s § 2255 motion should be

denied as untimely. 

Section 2255, as amended by the AEDPA, provides that the one-year limitations

period runs 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 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. 

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Movant argues that his motion is timely because he asserts a claim under United

States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 749-56 (2005) which was decided on January

12, 2005, and therefore the limitations period commenced on that date pursuant to § 2255(3)

which provides that the limitations period commences 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." Id.

Movant's attempt to rely on the date of the Booker decision as the

commencement date of the statute of limitations fails because the Supreme Court has not

made that decision retroactively applicable to cases on collateral review. See, Booker, 125

S.Ct. at 769(holding that Booker applies "to all cases on direct review"). Similarly, the

Supreme Court has not made the precursors to Booker, Apprendi v. New Jersey, 530 U.S.

466 (2000) and Blakely v. Washington, 124 S. Ct. 2531 (2004), retroactively applicable to

cases on collateral review. See, United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th

Cir. 2000)(Apprendi not retroactive on collateral review); See, United State v. QuinteroAraujo, 343 F.Supp.2d 935, 942 (D.Idaho 2004)(Blakely does not apply retroactively on

collateral review); United States v. Stoltz, 325 F.Supp.2d 982, 987 (D.Minn. 2004)(same);

Orchard v. United States, 332 F.Supp.2d 275, 277 (D.Me. 2004)(same); Concepcion v.

United States, 328 F.Supp.2d 372, 374 (E.D.N.Y. 2004)(same); Tisdale v. United States,

2004 WL 2782725, * 7 (D.Kan. Sept. 22, 2004)(same); United States v. Stancell, 346

F.Supp.2d 204 (D. D.C. 2004)(same).

Movant further asserts that the limitations period should run from June 20, 2005,

the date on which the Supreme Court issued its opinion in Dodd v. United States, ___

U.S.___, 125 S.Ct. 2478 (June 20, 2005). In Dodd, the Court considered whether the date

from which the limitations period begins to run under § 2255(3) is the date on which the

Supreme Court "initially recognized" the right asserted in the movant's § 2255 motion, or

whether it is the date on which it is "made retroactive." 125 S.Ct. at 2480. The Court

concluded that the statute itself "unequivocally identifies one, and only one, date from which

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the 1-year limitations period is measured: 'the date on which the right asserted was initially

recognized by the Supreme Court.'" 125 S.Ct. 2482 (citing § 2255(3)). The Court explained

that the second clause of § 2255(3) – "if that right has been newly recognized by the

Supreme Court and made retroactively applicable to cases on collateral review" – imposes a

condition on the applicability of this subsection. 125 S.Ct. at 2482. In other words, section

2255(3)'s date "does not apply if all the conditions in the second clause — the right 'has been

made retroactively applicable to cases on collateral review' — have not been satisfied." Id.

Under Dodd, § 2255(3) does not apply in this case because the Supreme Court has not made

Booker or Blakely retroactively applicable on collateral review. 

Thus, § 2255(1) applies and the limitations period runs from the date on which

Movant's judgment of conviction became final. Movant was sentenced on December 3,

2002. He appealed and the Ninth Circuit affirmed his conviction and sentence on December

9, 2003. Movant did not file a petition for writ of certiorari with the United States Supreme

Court. When a prisoner's conviction is affirmed on appeal and he does not file a petition for

writ of certiorari, his judgment of conviction becomes final when the time for filing a

petition for certiorari expires. Clay v. United States, 537 U.S. 522, 532 (2003). The time for

seeking certiorari expires ninety (90) days after the Court of Appeals enters its judgment. 

See, United States v. Garcia, 210 F.3d 1058, 1059 (9th Cir. 2000); Sup. Ct. R. 13.3 (stating

that the time to file a petition for a writ of certiorari runs from the date of entry of the

judgment or order sought to be reviewed, and not from the issuance date of the mandate.) 

Accordingly, Movant's § 2255 motion was due on or before March 8, 2005. 

Movant's Motion is dated March 14, 2005 and was filed March 18, 2005. Under

the prison mailbox rule, a habeas petition is considered filed on the date the pro se petitioner

delivers it to prison authorities for mailing. Houston v. Lack, 487 U.S. 266 (1988); Huizar

v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001). Eve assuming that the mailbox rule applies

and that Movant's § 2255 motion was deemed filed on March 14, 2005, the § 2255 Motion is

untimely. The Court, therefore, need not reach the merits of Movant's claims unless Movant

establishes a basis for equitable tolling. 

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EQUITABLE TOLLING

The Ninth Circuit recognizes that the § 2255 limitations period is subject to

equitable tolling when “extraordinary circumstances beyond a prisoner’s control make it

impossible to file a petition on time.” Calderon v. United States, 128 F.3d 1283, 1288-89,

overruled on other grounds, 163 F.3d 530, 540 (9th Cir. 1998), abrogated on other grounds,

Woodford v. Garceau, 538 U.S. 2002 (2002); United States v. Battles, 362 F.3d 1195, 1197

(9th Cir. 2004)(clarifying that the limitations period contained in § 2255 is subject to

equitable tolling). To qualify for equitable tolling, movant must establish that circumstances

beyond his control or government misconduct made it impossible for him to file a timely §

2255 motion. Id. Equitable tolling is only appropriate when "external forces" account for

petitioner's failure to file a timely claim. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.

1999). Movant bears the burden of establishing that he is entitled to equitable tolling. Smith

v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002). 

Movant asserts that his lack of legal training and the hardships of prison life

justify equitable tolling. A petitioner seeking equitable tolling must establish two elements:

" (1) that he has been pursuing his rights diligently; and (2) that some extraordinary

circumstance stood in his way." Pace v. DiGuglielmo, ___ U.S. ___, 125 S.Ct. 1807 (2005). 

Here, Petitioner fails to assert any extraordinary circumstance warranting equitable tolling. 

Movant's status as an inmate and lack of legal assistance do not constitute

extraordinary circumstances warranting equitable tolling. See, Marsh v. Soares, 223 F.3d

1217, 1220 (10th Cir. 2000)(stating that fact that an inmate law clerk was assisting petitioner

does not relieve petitioner from personal responsibility of complying with the law); Hughes

v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986)(finding that a pro se

prisoner’s illiteracy was not sufficient to satisfy the standard of an objective, external factor

amounting to “cause” for purposes of avoiding the procedural bar on his habeas claim);

United States v. Van Poyck, 980 F.Supp. 1108 (C.D.Ca. 1997)(defendant's inability to

secure transcripts and four general lockdowns at prison lasting several days and allegedly

eliminating access to the law library did not constitute extraordinary circumstances for

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purposes of tolling the one-year limitations period.). In summary, equitable tolling is not

appropriate in this case. Because Movant's § 2255 Motion is untimely and he fails to

establish a basis for tolling the statute of limitations, the undersigned recommends

dismissing the Motion.

Accordingly,

IT IS HEREBY RECOMMENDED that the Movant's Motion to Vacate, Correct,

or Set Aside Sentence by person in Federal Custody pursuant to 28 U.S.C. § 2255

(document # 295) be DISMISSED as untimely. 

This recommendation is not an order that is immediately appealable to the Ninth

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 

Appellate Procedure, should not be filed until entry of the District Court=s judgment. The

parties shall have ten days from the date of service of a copy of this recommendation within

which to file specific written objections with the Court. See, 28 U.S.C. ' 636(b)(1); Rules

72, 6(a), 6(e), Federal Rules of Civil Procedure. Thereafter, the parties have ten days within

which to file a response to the objections. Failure timely to file objections to the Magistrate

Judge's Report and Recommendation may result in the acceptance of the Report and

Recommendation by the District Court without further review. See United States v. ReynaTapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual

determinations of the Magistrate Judge will be considered a waiver of a party=s right to

appellate review of the findings of fact in an order or judgment entered pursuant to the

Magistrate Judge=s recommendation. See, Rule 72, Federal Rules of Civil Procedure.

DATED this 29th day of August, 2005.

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