United States v. Marin-Torres

430 F.Supp.3d 736

UNITED STATES of America, Plaintiff,

v.Leonel MARIN-TORRES, Defendant.

No. 3:14-cr-00386-HZ-1

United States District Court, D. Oregon, Portland Division.

Signed January 2, 2020

Gregory R. Nyhus, United States Attorney's Office, 1000 SW Third Avenue, Suite 600, Portland, OR 97204, Attorneys for Plaintiff.

Leonel Marin-Torres, 36048-086, Lewisburg U.S. Penitentiary, Inmate Mail/Parcels, P.O. Box 1000, Lewisburg, PA 17837, Pro se Defendant.

OPINION & ORDER

HERNÁNDEZ, District Judge:

Defendant moved for a one-year extension of time to file a motion under 28 U.S.C. § 2255 for relief from his judgment of conviction.

BACKGROUND

A jury found Defendant guilty of assaulting an officer after a two-day trial on January 12-13, 2016. Jury Verdict, ECF 93. Defendant conducted the trial pro se but had standby counsel available to assist him throughout the trial. The Court sentenced Defendant on April 11, 2016, and entered a judgment of conviction against him the same day. Judgment, ECF 102. Defendant appealed his conviction to the Ninth Circuit. Not. App., ECF 105. On November 17, 2017, the Ninth Circuit affirmed Defendant's conviction. United States v. Marin-Torres , 702 F. App'x 634 (9th Cir. 2017). Defendant filed a petition for writ of certiorari in the United States Supreme Court on March 27, 2018. S. Ct. Clerk Ltr., ECF 126. The Supreme Court denied certiorari on May 29, 2018. Marin-Torres v. United States , ––– U.S. ––––, 138 S. Ct. 2588, 201 L.Ed.2d 304 (2018) (mem.).

On November 4, 2019, Defendant filed a motion for an extension of time to file a motion under 28 U.S.C. § 2255 for relief from his judgment of conviction. Def. Mot. Ext. Time, ECF 128.

STANDARDS

Section 2255 provides that a defendant may file a motion for relief from a judgment of conviction within one year of 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(f). A judgment of conviction becomes final when the Supreme Court "affirms [the] conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Clay v. United States , 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003).

DISCUSSION

I. Jurisdiction

The Constitution confers jurisdiction on the federal courts to "cases" and "controversies." U.S. Const. art. III, § 2, cl. 1. The exercise of jurisdiction by federal courts is limited to "the existence of a case or controversy, and a federal court lacks the power to render advisory opinions." United States Nat'l Bank v. Indep. Ins. Agents of Am., Inc. , 508 U.S. 439, 446, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) (internal quotations marks and brackets omitted).

The Ninth Circuit has not yet considered whether a district court has jurisdiction to decide a motion for extension of time to file a Section 2255 motion before a prisoner files a Section 2255 motion. Most circuits to consider the question have held that federal courts lack subject matter jurisdiction under Article III to hear motions for extension of time to file Section 2255 motions unless the defendant files a Section 2255 motion with the motion for extension of time. United States v. Leon , 203 F.3d 162, 164 (2d Cir. 2000) (per curiam); United States v. Hernandez , 431 Fed. App'x 813, 814 (11th Cir. 2011) ; United States v. White , 257 Fed. App'x 608, 609 (4th Cir. 2007) ; United States v. McFarland , 125 Fed. App'x 573, 574 (5th Cir. 2005) ; United States v. Moore , 56 Fed. App'x 686, 687 (6th Cir. 2003). Those circuits hold that to decide a motion for extension of time when no Section 2255 motion has been filed would amount to rendering an advisory opinion. See, e.g., Leon , 203 F.3d at 164. Other district courts in the Ninth Circuit agree. See, e.g., Soto v. Warden , No. CV 09-2377 AHM JC, 2009 WL 1705471, at *1 (C.D. Cal. Jun. 16, 2009).

Only the Third Circuit has held that district courts have jurisdiction to hear motions for extension of time filed before a Section 2255 motion, reasoning that because Section 2255 motions are filed in a continuation of the underlying criminal case instead of a separate civil proceeding, the criminal case satisfies the Article III case or controversy requirement. United States v. Thomas , 713 F.3d 165, 169 (3d Cir. 2013). But, as the Sixth Circuit pointed out, the Supreme Court has held that Section 2255 motions are separate actions. United States v. Asakevich , 810 F.3d 418, 422 (6th Cir. 2016) ("a motion under § 2255, like a petition for a writ of habeas corpus ... is not a proceeding in the original criminal prosecution but an independent civil suit") (internal quotation marks and brackets omitted) (citing Heflin v. United States , 358 U.S. 415, 418 n. 7, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959) ).

The Court is persuaded by the reasoning of the majority of other circuits and holds that because Defendant has not filed a Section 2255 motion, the Court lacks subject matter jurisdiction unless the Court can construe his motion for an extension of time as a Section 2255 motion. Cf. Calderon v. Ashmus , 523 U.S. 740, 746-49, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998) (federal courts lack jurisdiction under Article III to hear a prisoner's petition for declaratory relief to determine the time limits that would govern future habeas petitions).

Courts must "construe pro se filings liberally." Hebbe v. Pliler , 627 F.3d 338, 342 (9th Cir. 2010). Pro se filings "must be held to less stringent standards than formal pleadings drafted by lawyers." Id. Applying that rule, some circuits have held that when a pro se prisoner files a motion for extension of time to file a Section 2255 motion that includes grounds for relief that can be construed as a Section 2255 motion, the district court has jurisdiction to determine whether the motion is timely and to decide it on the merits. Green v. United States , 260 F.3d 78, 83 (2d Cir. 2001) ; White , 257 Fed. App'x at 609.

The Supreme Court has endorsed the district courts' authority to recharacterize a pro se prisoner's filing as a first Section 2255 motion, but it requires courts to first give notice to the pro se prisoner that it intends to do so and that subsequent motions filed under Section 2255 will be subject to the requirements of second or successive motions. Castro v. United States , 540 U.S. 375, 383, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003). Because construing the motion as a first Section 2255 motion will create procedural barriers to filing second or successive Section 2255 motions, district courts must give the pro se prisoner a reasonable opportunity to withdraw the motion or allow the pro se prisoner to amend the filing to conform to the requirements of Section 2255. Id. If the court does not provide that warning and opportunity to withdraw or amend, then the court cannot treat it as a first Section 2255 motion and require a subsequent Section 2255 motion to comply with the procedural requirements for filing a second or successive Section 2255 motion. Id.

a. Defendant's Motion for Extension of Time Contains Sufficient Factual Allegations for the Court to Construe It as a Section 2255 Motion

Section 2255 permits a prisoner in custody to attack their sentence on the limited grounds that (1) it was imposed in violation of the Constitution, (2) the district court that imposed the sentence lacked jurisdiction, or (3) the sentence exceeded the maximum sentence authorized by law or is otherwise subject to collateral attack. 28 U.S.C. § 2255. To state a claim for relief under Section 2255, the defendant must allege sufficient facts to raise one of those issues. Green , 260 F.3d at 83-84. Defendant's motion alleges only constitutional violations. It makes conclusory allegations of corruption, discrimination, misconduct by the judge and prosecutor, and an allegation that his conviction is the product of tyranny designed to generate profit for the private prison industry. Mot. Ext. Time 2-3. Defendant also alleges that the Court violated his Fifth, Sixth, and Fourteenth Amendment rights when it excluded him from the courtroom during his trial and refused to allow Defendant to present evidence that an officer who testified against him had been fired for giving a false statement and that inmates had made complaints against him for harassment. Id. at 7-8.

"The [ Section 2255 ] standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted." United States v. Schaflander , 743 F.2d 714, 717 (9th Cir. 1984) (internal citations omitted). Merely conclusory statements are not enough, but a prisoner does need not explain their evidence in detail; the prisoner is required only to make factual allegations. United States v. Hearst , 638 F.2d 1190, 1194 (9th Cir. 1980) (internal citations omitted). "Where a motion, nominally seeking an extension of time, contains allegations sufficient to support a claim under section 2255, a district court is empowered, and in some instances may be required ... to treat that motion as a substantive motion for relief under section 2255." Green , 260 F.3d at 83. The Court finds that, at a minimum, Defendant's motion alleges sufficient facts to state a claim that his Sixth Amendment rights were violated when the Court excluded him from trial proceedings, and he has alleged sufficient facts to treat the motion for...