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Berrios v. United States

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

September 5, 2017

UNITED STATES OF AMERICA, Respondent. Civil No. 1:16-cv-1411



         THIS MATTER comes before the Court on Petitioner Henry Alexander Berrios's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255.

         On August 9, 2007, a grand jury sitting in the Eastern District of Virginia charged Petitioner, and five co-defendants, in a four-count indictment for: (1) conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C § 1959 (a) (5) and (6); (2) conspiracy to commit aggravated assault in aid of racketeering, in violation of 18 U.S.C § 1959(a)(5) and (6); (3) aggravated assault in aid of racketeering, in violation of 18 U.S.C § 1959(a) (3); and (4) attempted murder in aid of racketeering, in violation of 18 U.S.C § 1959(a)(5). The charges stemmed from an October 15, 2005 event in which Petitioner and fourteen fellow gang members, several of whom were juveniles, stabbed a 15-year-old rival gang member, almost killing him, and attacked his two friends in a Fairfax County mall. Although Petitioner was not wielding the knife, he was at the mall to direct the attack and drive the car that picked up the gang members involved in the stabbing. Several of the juvenile gang members indicated that Petitioner had instructed them to conduct the stabbing and that the attack was carried out to improve their standing as members of MS-13, a violent street gang.

         On August 10, 2007, this Court appointed counsel to represent Petitioner. On August 17, 2007, Petitioner was arrested pursuant to an arrest warrant. At his initial appearance on the same day, Petitioner appeared without counsel but with an interpreter. On the same day of his arrest, Petitioner appeared with defense counsel Greg Stambaugh and a Spanish interpreter for his arraignment. Defense counsel filed various motions in limine and a motion to suppress ahead of trial, which were all denied. The jury trial, where Petitioner, defense counsel and a Spanish interpreter were present, took place on December 4, 2007. The trial, during which Petitioner testified on his own behalf, lasted four day. On December 19, 2007, after two days of deliberation, the jury convicted Petitioner on all counts.

         The presentence report ("PSR") prepared ahead of Petitioner's sentencing determined that his offense level was 39 and his criminal history category was III. Petitioner's offense level included an enhancement for obstruction of justice for testifying untruthfully. Defense counsel unsuccessfully objected to this enhancement. Petitioner's sentencing guidelines range was 324-405 months of imprisonment. On February 29, 2008, after hearing oral argument from both sides with all parties and a Spanish interpreter present, the Court sentenced Petitioner to 120 months on Count 1; 36 months on Count 2; 240 months for Count 3; and 120 months on Count 4. The Court elected to have the sentences for all but three months of the sentence for conspiracy to commit murder (count 2) to run concurrently with the sentence for attempted murder (Count 3) . Petitioner was committed to the custody of the Bureau of Prisons for a total of 24 3 months, nearly seven years less than the low end of the Guideline's range.

         On March 6, 2008, defense counsel, who was reappointed to represent Petitioner on appeal, filed a timely notice of appeal. Petitioner's counsel and access to the transcripts of all trial court proceedings. Petitioner's defense counsel argued that " (i) the evidence was insufficient to support a finding that his actions had the purpose of maintaining or increasing their role in MS-13 or to support a finding that the victim was the object of the crime of violence; and (ii) the district court improperly admitted testimony that on two occasions Petitioner violently attacked a rival gang member because although the testimony was relevant, Petitioner contended that it was highly prejudicial and thus inadmissible under Federal Rule of Evidence 403. United States v. Berrios, 397 F. App' x 921, 922 (4th Cir. 2010). On October 15, 2010, the Fourth Circuit affirmed Petitioner's conviction, which became final on November 8, 2010.

         On October 26, 2016, the Fourth Circuit rejected Petitioner' recently filed motion for leave to file a § 2255 outside of the one-year deadline. On November 8, 2016, Petitioner filed the instant § 2255 motion pro se. This Court ordered the government to respond within 60 days in an order entered on April 11, 2016. On June 9, 2017, this Court granted the government's motion to extend the time to file a response to July 8, 2017. The United States then filed a motion to compel, requesting that defense counsel Greg Stambaugh file an affidavit responding to the petitioner's allegations of ineffective assistance of counsel. The Court granted the motion and also granted a second extension of time to respond, requiring the government to file a response on July 17, 2017. Defense counsel provided his affidavit on July 17, 2017.

         Under 28 U.S.C. § 2255, a person may attack his sentence or conviction on the grounds that it was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such a sentence, that the sentence exceeded the maximum authorized by law, or that the sentence otherwise is subject to collateral attack. 28 U.S.C. § 2255; see also Hill v. United States, 368 U.S. 424, 426-27 (1962). The party seeking relief bears the burden of proving his grounds for collateral relief by a preponderance of the evidence. Vanater v. Boles, 377 F.2d 898, 900 (4th Cir. 1967). There are multiple reasons why Petitioner is not entitled to relief under § 2255.

         First, Petitioner's motion is untimely and dismissal is warranted on statute of limitations grounds alone. A one-year limitations period runs from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 22 55(f) (1); see also United States v. Wilson, 256 F.3d 217, 219 (4th Cir. 2001) . Petitioner's conviction became final on November 8, 2010. He filed the instant § 2255 motion on November 1, 2016. As such, his 2016 filing date, which was nearly six years after his conviction became final, fell outside the permissible filing period. The only statutory provision that could make Petitioner' current petition timely is § 2255(f)(4), which sets a one-year deadline from "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence."

         Yet, Petitioner does not make any allegations in his § 2255 petition that he has recently discovered any previously unknown facts in his case. Rather, he alleges that he only recently learned of legal arguments that might support a double jeopardy defense or merger-doctrine challenge to his sentence. Yet, the merger challenge is not even a newly discovered legal theory because Petitioner's attorney made a merger-doctrine argument in a brief filed prior to the sentencing hearing. Regardless, neither of Petitioner's "new" legal theories qualifies as "new facts supporting a claim" to toll the statute of limitations.

         Even if the discovery of legal arguments unknown to Petitioner within one year of his conviction could be considered newly discovered "facts supporting a claim, " §2255 (f)(4) tolls the time for filing to one-year of when the facts "could have been discovered through the exercise of due diligence" not to one-year of when the facts were in fact discovered. A diligent search of case law within one year of Petitioner's conviction being made final would have revealed these arguments.

         In addition, Petitioner' claims of ineffective assistance of counsel do not rely on allegations that Petitioner recently discovered any new information about counsel's performance. Instead, Petitioner's ineffective assistance of counsel claims rely on facts that were all known to him well within a year of his conviction. For these reasons, none of the allegations in Petitioner's petition or memo justify resetting the time under which he could file a timely petition under § 2255(f)(4).

         Petitioner further argues that his failure to file his motion within the one-year statute of limitations should not act as a procedural bar because his claim should benefit from equitable tolling. For the doctrine of equitable tolling to apply, an otherwise time-barred petitioner has the burden to prove that: (1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) prevented him from filing on time. United States v. Sosa, 364 F.3d 507, 512 (4 th Cir. 2004).

         Here, Petitioner does not allege anywhere in his pleadings that any such extraordinary circumstances apply. Instead, he alleges that he could not communicate effectively with his counsel because a language barrier existed and that he only became aware of his present legal argument in October 2016. Yet, both the record and defense counsel's affidavit indicate that Petitioner communicated with his attorney using the assistance of a Spanish interpreter. Accordingly, Petitioner is not entitled to equitable tolling, and ...

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