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United States v. Salamanca

United States District Court, E.D. Virginia, Richmond Division

October 18, 2016

UNITED STATES OF AMERICA
v.
CYNTHIA DAMARIZ SALAMANCA, Petitioner.

          MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255 MOTION)

          HENRY E. HUDSON A UNITED STATES DISTRICT JUDGE.

         Cynthia Damariz Salamanca, a federal inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence ("§ 2255 Motion, " ECF No. 189).[1] The Government has responded, asserting, inter alia, that Salamanca's § 2255 Motion is barred by the statute of limitations. (ECF No. 194.) Salamanca has filed a Reply. (ECF No. 196.) For the reasons set forth below, Salamanca's § 2255 Motion will be dismissed as barred by the statute of limitations.

         I. PROCEDURAL HISTORY

         On September 30, 2011, a Criminal Complaint was filed, charging Salamanca with one count of conspiracy to make false statements and commit aggravated identity theft and social security fraud. (Criminal Complaint 1, ECF No. 4.) On October 18, 2011, a grand jury charged Salamanca with one count of conspiracy to commit identification fraud (Count One); one count of conspiracy to commit honest services fraud (Count Two); and five counts of aggravated identity theft (Counts Three, Four, Five, Six, and Seven). (Indictment 1-15, ECF No. 51.) On November 21, 2011, Salamanca pled guilty to all counts. (Plea Agreement ¶ 1(a), ECF No. 74.) On February 22, 2012, the Court entered judgment against Salamanca and sentenced her to a total of 171 months of incarceration. (J. 2, ECF No. 126.) Salamanca did not appeal.

         On February 26, 2013, the Court received a § 2255 motion captioned with Salamanca's name. Salamanca, however, did not sign the § 2255 motion. Rather, Salamanca's mother, Sandra L. Abarca, signed the § 2255 motion. (§ 2255 Mot. 14, ECF No. 154.) Ms. Abarca represented that she attempted to have her daughter sign the § 2255 motion, but "prison officials would not allow [her] to let Cynthia sign the last page so [she] could mail it in for her." (Id.) By Memorandum Opinion and Order entered on April 29, 2013, the Court dismissed the § 2255 motion for lack of jurisdiction. (See ECF Nos. 155, 156.) Specifically, the Court determined that Ms. Abarca did not qualify for "next friend" standing, and found that Salamanca failed "to demonstrate why [Salamanca] could not simply fill out the standardized 28 U.S.C. § 2255 form and prosecute the action on her own behalf." (ECF No. 155, at 2.)

         On May 31, 2013, Salamanca, by counsel Jerome M. Brown, filed a Motion for Relief under Federal Rule of Civil Procedure 60(b) ("Rule 60(b) Motion, " ECF No. 160). In her Rule 60(b) Motion, Salamanca asked that the Court "reconsider its previous Order dismissing [her § 2255 motion] and permit Counsel the opportunity to file a Memorandum in support of the 2255 filing already filed with the Court; or, in the alternative, permit equitable tolling and allow Ms. Salamanca to file the signed [§ 2255 motion] she sent Counsel." (Rule 60(b) Mot. 6.)

         By Memorandum Opinion and Order entered on January 10, 2014, the Court denied Salamanca's Rule 60(b) Motion. United States v. Salamanca, No. 3:11CR255-HEH, 2014 WL 108899, at *5 (E.D. Va. Jan. 10, 2014). The Court provided the following synopsis of the circumstances surrounding the filing of Salamanca's § 2255 motion:

Towards the end of 2012, Ms. Abarca contacted Mr. Brown with respect to representing Ms. Salamanca in filing a § 2255 Motion. 4'[B]ecause the family . . . had difficulty obtaining sufficient funds to retain [Mr. Brown], " but was able to provide "sufficient funds for [Mr. Brown] to review this matter, " counsel agreed to ghostwrite a § 2255 motion for Ms. Salamanca's signature. Accordingly, Mr. Brown "drafted a 2255 Petition and sent [the] same to Ms. Salamanca via U.S. Express Mail.[2] While that mail was sent on February 20, 2013, and was ready for pick-up on [Thursday, ] February 21, 2013, the prison officials did not retrieve this package from the Post Office until [Monday, ] February 25, 2013."
Mr. Brown's attempts to phone prison officials to ensure that they timely provided Ms. Salamanca with the § 2255 Motion were unsuccessful. Accordingly, Mr. Brown suggested that Ms. Abarca visit Ms. Salamanca at the prison and have her sign the § 2255 Motion. Mr. Brown declined to personally undertake this course of action as he "was not retained to enter his appearance."
Ms. Abarca visited Ms. Salamanca at the prison on Friday, February 22, 2013 and apparently discussed the urgent need for Ms. Salamanca to personally sign her § 2255 Motion. Prison officials, however, refused to allow Ms. Abarca to take in the signature page of the § 2255 Motion so that Ms. Salamanca could sign that page. Concerned that Ms. Salamanca's § 2255 Motion would be untimely, Mr. Brown advised Ms. Abarca to sign the § 2255 Motion and send it to the Court. On February 26, 2013, the Court received the § 2255 Motion signed by Ms. Abarca.
On February 26, 2013, Ms. Salamanca received the § 2255 Motion drafted by Mr. Brown. Ms. Salamanca called her "mother to ask what [she] was to do with this document since [she] knew it had to be filed."[3] Ms. Abarca "told [Ms. Salamanca] not to worry about it because [Ms. Abarca] had sent it in for [her]." Nevertheless, Ms. Salamanca then promptly signed a § 2255 Motion drafted by Mr. Brown ... and sent it to Mr. Brown.
On March 5, 2013, Mr. Brown received the Signed § 2255 Motion from Ms. Salamanca. Nevertheless, Mr. Brown failed to file the Signed § 2255 Motion with the Court.

Id. at *2-3 (internal citations omitted) (first, second, third, fourth, seventh, eighth, ninth, tenth, twelfth, thirteenth, and fourteenth alterations in original). The Court concluded that Salamanca failed to demonstrate entitlement to relief under Rule 60(b)(1) and 60(b)(6). Id. at *3-4. On May 9, 2014, the United States Court of Appeals for the Fourth Circuit dismissed Salamanca's appeal of the April 29, 2013 Memorandum Opinion and Order dismissing her § 2255 motion. United States v. Salamanca, 571 F.App'x 183, 184 (4th Cir. 2014). On November 24, 2014, the Fourth Circuit dismissed Salamanca's appeal of the January 10, 2014 Memorandum Opinion and Order denying her Rule 60(b) Motion. United States v. Salamanca, 585 F.App'x264, 264 (4th Cir. 2014).[4]

         On November 24, 2014, Salamanca placed the present § 2255 Motion in the prison mail system for mailing to this Court. (§ 2255 Mot. 12.) The Court deems the § 2255 Motion filed as of that date. See Houston v. Lack, 487 U.S. 266, 276 (1988). In her § 2255 Motion, Salamanca raises the following claims for relief:

Claim One: "Trial counsel failed to pursue a [U.S.S.G. ยง] 5K1 cooperation statement from the U.S. Attorney prior to ...

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