Garcia-Mesa v. United States

• Court: District Court, D. Arizona
• Decided: January 11, 2024
• Docket: 2:21-cv-02233
• Status: Unknown

Opinion

1 NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 United States of America, CV21-02233-PHX-SRB CR99-00734-PHX-SRB 10 Plaintiff/Respondent,

11 v.

12 Carlos Garcia-Mesa,

13 Defendant/Movant. 14 15 Defendant/Movant through appointed counsel filed an authorized second or 16 successive motion pursuant to 28 U.S.C. §2255 on February 28, 2023 raising the claim 17 that, after the United States Supreme Court decision in United States v. Davis, 139 U.S. 18 2319 (2019), his mandatory minimum sentences for his firearms’ convictions were 19 unconstitutional and his sentences for these convictions should be vacated. 1 The motion 20 did not address the untimeliness of the original June 9, 2021 motion filed more than one- 21 year after the decision in Davis despite the fact that the United States explicitly reserved 22 the one-year time-bar argument in its briefing to the Court of Appeals opposing 23 authorization for the filing of the second or successive §2255 motion. 24 The United States filed its response in opposition arguing that the §2255 motion 25 should be denied as untimely because Defendant failed to initiate these proceedings within

26 1 Defendant’s motion also made reference to Borden v. United States, 142 U.S. 1817 (2021) and the Magistrate Judge addressed Borden in her Report and Recommendation. This 27 Order will not discuss the merits or lack thereof of a claim under Borden because no objections were made to the Report and Recommendation’s conclusion that a Borden claim 28 was neither authorized by the Court of Appeals nor available to Defendant in a second or successive §2255 motion. 1 one-year of the Supreme Court’s decision in Davis as required by 28 U.S.C. §2255(f)(3). 2 The United States also addressed Defendant’s failure to raise equitable tolling in his motion 3 arguing that any such argument was now waived. Defendant then argued for equitable 4 tolling in his Reply. The United States was permitted to file a sur-reply to address 5 Defendant’s equitable tolling arguments raised for the first time in his Reply. 6 The Magistrate Judge issued her Report and Recommendation on October 18, 2023 7 recommending that Defendant’s §2255 motion be denied and dismissed with prejudice 8 without an evidentiary hearing because it was filed more than one-year after the Supreme 9 Court’s decision in Davis and because Defendant had waived any claim for equitable 10 tolling and, even if not waived, his assertions for equitable tolling were insufficient. 11 Defendant filed timely written objections to which the United States responded. 2 12 Defendant raises two objections only one of which will be addressed on this de novo 13 review. Defendant’s first objection argues that Davis applies and, therefore, his sentences 14 should be reversed. But the Magistrate Judge did not make any findings about the 15 applicability or inapplicability of Davis to Defendant’s sentences. The Magistrate Judge 16 made a recommendation only on the procedural questions of timeliness and equitable 17 tolling. 18 Defendant does not suggest that his second or successive §2255 motion was timely. 19 He argues only in his Objections that there should be an evidentiary hearing to determine 20 if equitable tolling allows the Davis claim to be considered on its merits. Defendant says 21 that the Magistrate Judge discounted his lack of English, failure to obtain written materials 22 in Spanish or translation services, the COVID lockdown and “other grounds” and that he 23 had presented a factual dispute for which there should be an evidentiary hearing. This 24 Court disagrees for two reasons. 25 First, the Magistrate Judge concluded that equitable tolling was waived as it was not 26 raised in Defendant’s motion but only in his reply. Defendant’s objections fail to make 27 2 Defendant filed a pro se “Side Objection to the Magistrate’s R&R” which the Court need 28 not consider. But even if considered, Defendant’s assertion that the Court of Appeals determined that his Davis claim was “unique and timely” is untrue. 1 any mention of the Magistrate Judge’s finding that his equitable tolling argument was 2 waived. Alternatively, the Magistrate Judge found that “[e]ven if not waived, Movant’s 3 reply assertions are insufficient.” (Doc. 60, Report and Recommendation at 12). 4 Second, the Court agrees with the Magistrate Judge that, even if not waived, 5 Defendant’s conclusory assertions unsupported by affidavit in his Reply do not cross the 6 high threshold to show his diligent pursuit of his claims. As noted by the Magistrate Judge, 7 an evaluation of equitable tolling turns on an examination of detailed facts and a showing 8 that extraordinary circumstances beyond Defendant’s control were the cause of his inability 9 to file timely. (Id. At 10) The Magistrate Judge detailed the deficiencies in the conclusory 10 assertions in the Reply and the requirements for specific factual allegations which, as the 11 Magistrate Judge explained in some detail, were not made in the Reply. Defendant’s 12 Objections, rather than dealing with clear case authority, argue that his conclusory 13 assertions create a factual dispute warranting an evidentiary hearing. The Court agrees with 14 the Magistrate Judge that they do not. 15 IT IS ORDERED overruling Movant’s Objections to the Report and 16 Recommendation. 17 IT IS FUTHER ORDERED adopting the Report and Recommendation of the 18 Magistrate Judge as the Order of this Court. (Doc. 60) 19 IT IS FURTHER ORDERED denying Movant’s Motion to Vacate and Set Aside a 20 Sentence Pursuant to 28 U.S.C. § 2255. (Doc. 48) 21 IT IS FURTHER ORDERED denying a Certificate of Appealability because denial 22 of the § 2255 Motion is justified by a plain procedural bar and jurists of reason would not 23 find the procedural ruling debatable. 24 . . . 25 . . . 26 . . . 27 . . . 28 . . . 1 IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly. 2 3 Dated this 11th day of January, 2024. 4 5 ° Sen KE fabtov_ 7 Susan R. Bolton United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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