United States v. Henriquez
5:06-cr-00232
E.D.N.C.May 2, 2012Background
- Henriquez was charged in 2006 with conspiracy to distribute and possess with intent to distribute cocaine and with possession with intent to distribute cocaine.
- He pled guilty on November 21, 2006, pursuant to a plea agreement, and was sentenced on February 21, 2007 to 188 months' imprisonment; he did not appeal.
- Henriquez filed a 28 U.S.C. § 2255 petition on March 28, 2011, raising ineffective assistance of counsel for not informing him of potential deportation under Padilla v. Kentucky.
- The magistrate judge recommended dismissing the § 2255 petition as untimely under AEDPA and denied equity-based tolling.
- Henriquez objected, arguing Padilla is retroactive on collateral review and that equitable tolling applies; the government responded to the objection.
- The district court adopted the magistrate’s recommendation and dismissed the petition, denying a certificate of appealability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Padilla retroactivity on collateral review | Henriquez contends Padilla applies retroactively to § 2255 petitions. | The Fourth Circuit has not held Padilla retroactive; district opinions are split and the rule is not retroactive. | Padilla is not retroactive to collateral review. |
| Timeliness under § 2255(f)(3) | Petition filed within one year of Padilla recognizing a right, triggering § 2255(f)(3). | Padilla not retroactive, so § 2255(f)(3) does not toll the clock. | Petition was time-barred; not timely under § 2255(f)(3). |
| Equitable tolling | Equitable tolling due to confiscation of materials and lack of access to pre-sentence report and plea. | General prison access issues do not justify tolling; petitioner did not show diligent pursuit. | Equitable tolling not warranted; no extraordinary circumstances shown. |
| Overall dismissal of § 2255 petition | Petitioner seeks relief from a potentially prejudicial plea; argues invalid deportation guidance. | Petition is time-barred and lacks an eligible basis for tolling or relief. | Petition properly dismissed as time-barred. |
| Certificate of appealability | Appeal should be allowed on substantial constitutional questions. | No substantial showing of a denial of a constitutional right. | Certificate of appealability denied. |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (deportation consequences must be considered by counsel; retroactivity on collateral review uncertain)
- Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003) (AEDPA equitable tolling requires diligence and extraordinary circumstances)
- Pace v. DiGuglielmo, 544 U.S. 408 (U.S. 2005) (tolling requires diligence and extraordinary circumstances)
- Irwin v. Dep't of Veterans Affairs, 498 U.S. 89 (U.S. 1990) (equitable tolling principles under AEDPA must be applied carefully)
- Hernandez-Monreal, 404 F. App'x 714 (4th Cir. 2010) (Padilla retroactivity not established in unpublished Fourth Circuit note)