United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E. HUDSON A UNITED STATES DISTRICT JUDGE.
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). 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.
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.
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.)
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.)
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. 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." 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.
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.
§] 5K1 cooperation statement from the U.S. Attorney
prior to ...