United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOHN M. GERRARD, District Judge.
Following a jury trial before Senior District Judge Warren K. Urbom, Pruneda and his co-defendant were convicted of conspiracy to distribute 500 grams or more of a substance containing a detectable amount of methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(b)(1) and 846, and possession and use of a short-barreled shotgun in relation to drug trafficking in violation of 18 U.S.C. § 924(c). Pruneda was sentenced to a total of 280 months' imprisonment on both counts. Pruneda appealed, and on February 8, 2008, the United States Court of Appeals for the Eighth Circuit affirmed his conviction. Filing 148; United States v. Pruneda, 518 F.3d 597 (8th Cir. 2008).
This matter is before the court on Pruneda's pro se motion for miscellaneous relief. Filing 252. The Court previously construed Pruneda's filing as a motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255, and gave Pruneda the opportunity to withdraw or amend his motion. See, filing 253; Castro v. United States, 540 U.S. 375, 382-83 (2003); Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004). Pruneda responded by filing an amended § 2255 motion (filing 254), which the Court will construe as supplementing, rather than replacing, his original motion. The motion is now ripe for initial review.
I. STANDARD OF REVIEW
The Court's initial review is governed by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, which provides:
The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.
A § 2255 movant is entitled to an evidentiary hearing unless the motion and the files and records of the case conclusively show that the movant is entitled to no relief. Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010); 28 U.S.C. § 2255(b). Accordingly, a petition may be summarily dismissed without a hearing if (1) the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995); see also Sinisterra, 600 F.3d at 906. Upon its initial review, the Court finds that the files and records conclusively establish that Pruneda's claims are without merit and that his motion should be denied.
Before turning to the substance of Pruneda's claims, the Court notes that the time to file a motion under § 2255 has long since expired. A § 2255 motion must be filed within 1 year from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). The Eighth Circuit affirmed Pruneda's conviction on February 8, 2008. The deadline for Pruneda to file a petition for writ of certiorari was May 8, 2008. S.Ct. R. 13 & 29.2. Pruneda did not file a petition, and so his conviction became final on May 8, 2008. Thus, the 1-year period in this case expired on May 8, 2009, see, United States v. Martin, 408 F.3d 1089, 1090 (8th Cir. 2005); United States v. Hurst, 322 F.3d 1256 (10th Cir. 2003), and Pruneda's motion is nearly 5 years late.
The statute of limitations set forth in § 2255 is not jurisdictional, Moore v. United States, 173 F.3d 1131, 1134-35 (8th Cir. 1999), and may be equitably tolled where extraordinary circumstances beyond a prisoner's control prevent timely filing. Martin, 408 F.3d at 1093. Equitable tolling will only apply where the petitioner has demonstrated diligence in pursuing the matter. Id. at 1095. Pruneda has not alleged extraordinary circumstances, nor has he demonstrated diligence in bringing his motion nearly 5 years after the limitations period expired.
The Court is permitted, but not required, to sua sponte consider the timeliness of a § 2255 petition. See Day v. McDonough, 547 U.S. 198 (2006). Before dismissing a petition, however, the Court must afford the parties fair notice and an opportunity to be heard. Id. And the Court finds that Pruneda has already received notice that any § 2255 motion is extremely untimely. In June 2012, Pruneda filed a "Formal Request to File a 28 U.S.C. § 2255 Motion." Filing 249. The Court denied this request-even in 2012, the time to file a § 2255 motion had long since passed. The Court further found that Pruneda had not alleged any circumstances that would toll the statute of limitations. Filing 250. Nothing has changed since then, and Pruneda's new motion is also untimely. Nonetheless, in an abundance of caution, the Court will proceed to conduct an initial review of the substance of Pruneda's motion.
Pruneda's motion presents a wide assortment of arguments, but all are without merit. Many of them consist of lengthy quotations from cases and secondary sources, with little, if any, connection to the facts of his case. See, e.g., filing 252 at 4. The Court begins with the § 2255 form that Pruneda filled out and attached to his second motion. This form offers an outline and instructions for petitioners to concisely present any grounds for relief they wish to raise. Pruneda has listed three grounds for relief on the form: (1) that there was insufficient evidence to support his conviction; (2) that the trial court improperly admitted certain exhibits which were unfairly prejudicial; and (3) that the trial court erred in finding that he was not a minor participant for purposes of sentencing. Filing 254 at 4-7. While Pruneda did not support these contentions with any argument or explanation, the Court understands the gist of his claims, because Pruneda has already raised each of these arguments in his direct appeal to the Eighth Circuit. United States v. Pruneda, 518 F.3d 597 (8th Cir. 2008). The Court of Appeals rejected each. Id. And, with exceptions not applicable here, petitioners may not use § 2255 to relitigate claims which have been raised and decided on direct appeal. Sun Bear v. United States, 644 F.3d 700, 702 (8th Cir. 2011) (en banc).
The remainder of Pruneda's filings consist of approximately 30 pages of rambling arguments regarding a variety of claimed errors at his trial. His arguments appear primarily to fall within the a claim of ineffective assistance of counsel. To the extent that Pruneda is attempting to raise any claims other than ineffective assistance of counsel that he did not raise on direct appeal (and the Court perceives only a handful), those claims are barred by procedural default. See United States v. Moss, 252 F.3d 993, 1000 (8th Cir. 2001). There are exceptions to the bar of procedural default, see id., but Pruneda has not alleged facts which would implicate these exceptions.
To establish a claim of ineffective assistance of counsel, Pruneda must show that his attorney's performance was deficient and that this prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court may dispose of an ineffective assistance claim under either Strickland prong. For example, if prejudice is not shown, the Court need not determine whether counsel's performance was deficient. Id. at 697. Pruneda claims that his counsel was ineffective in a variety of ways. The Court has reviewed each of Pruneda's arguments, and finds each to be without merit. ...