United States v. Gonzalez
1:12-cr-00088
W.D.N.Y.Sep 11, 2017Background
- Movant Luis Osorio was sentenced in April 2014 to 72 months after the district court applied an enhanced base offense level under U.S.S.G. § 2K2.1 based on a prior New York attempted first-degree assault conviction deemed a “crime of violence.”
- Osorio did not file a direct appeal; his judgment became final on May 7, 2014 (ten days after entry of judgment under Rule 4(b)).
- Osorio filed a § 2255 motion on June 14, 2016 arguing Johnson v. United States invalidated the Guidelines’ residual clause that had been used to classify his prior conviction as a crime of violence.
- The Government moved to dismiss, relying on the Supreme Court’s decision in Beckles holding the Sentencing Guidelines are not subject to vagueness challenges under Johnson.
- The Federal Public Defender sought leave to withdraw as counsel (unopposed). Osorio submitted no opposition to the Government’s motion.
- The court found Osorio’s § 2255 petition untimely under 28 U.S.C. § 2255(f) and declined to equitably toll the limitations period; it dismissed the motion and denied a certificate of appealability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under § 2255(f)(1) | Osorio argued his claim is timely in light of Johnson | Government argued Osorio’s judgment became final May 7, 2014 and petition filed June 14, 2016 is untimely | Court: Petition untimely under § 2255(f)(1) (filed 769 days after finality) |
| Applicability of Johnson to Guidelines (§ 2255(f)(3)) | Johnson invalidated residual clause, so later start date under (f)(3) should apply | Beckles holds Johnson does not apply to the Guidelines; (f)(3) inapplicable | Court: Beckles controls; Johnson does not avail Osorio under (f)(3) |
| Equitable tolling | Osorio impliedly relied on Johnson timing to file later | Government: no extraordinary circumstances; movant delayed filing until after Johnson | Court: No equitable tolling; movant failed to show diligence/extraordinary circumstances |
| Certificate of appealability | Osorio contended merits would be debatable | Government argued procedural dismissal not debatably incorrect | Court: Declined COA; no reasonable jurists would find ruling debatable |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause)
- Beckles v. United States, 137 S. Ct. 886 (2017) (held Guidelines’ residual clause not subject to vagueness challenge)
- Clay v. United States, 537 U.S. 522 (2003) (judgment becomes final when time to file certiorari expires)
- Moshier v. United States, 402 F.3d 116 (2d Cir. 2005) (unappealed federal judgment becomes final when time for direct appeal expires)
- Hizbullahankhamon v. Walker, 255 F.3d 65 (2d Cir. 2001) (standards for equitable tolling in § 2255 context)
- Smith v. McGinnis, 208 F.3d 13 (2d Cir. 2000) (equitable tolling elements explained)
- Slack v. McDaniel, 529 U.S. 473 (2000) (standard for certificate of appealability)