United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
Alejandro Villalobos was indicted in March 2015 for a number
of armed robberies in metropolitan Milwaukee. United
States v. Alejandro Villalobos, 15-CR-51-4-JPS (E.D.
Wis.) (Villalobos' “Criminal Case”), (Docket
#1). On September 15, 2015, he pleaded guilty to seven counts
of a superseding indictment: five for Hobbs Act robbery, in
violation of 18 U.S.C. §§ 1951(a) & 2, and two
for brandishing a firearm in connection with some of those
robberies, in violation of 18 U.S.C. §§
924(c)(1)(A)(ii) & 2. Id., (Docket #96 and
#101). On January 14, 2016, the Court sentenced him to
fifteen years' imprisonment. Id., (Docket #154).
Villalobos did not appeal his convictions or sentence. He
filed a motion pursuant to 28 U.S.C. § 2255 to vacate
his convictions on March 27, 2018. (Docket #1). That motion
is now before the Court for screening:
If it plainly appears from the motion, any attached exhibits,
and the record of the prior proceedings that the moving party
is not entitled to relief, the judge must dismiss the motion
and direct the clerk to notify the moving party. If the
motion is not dismissed, the judge must order the United
States Attorney to file an answer, motion, or other response
within a fixed time, or to take other action the judge may
4(b), Rules Governing Section 2255 Proceedings.
Court begins by addressing the timeliness of Villalobos'
motion. Section 2255(f) provides that there is a one-year
limitations period in which to file a motion seeking Section
2255 relief. That limitations period runs from the date on
which the judgment of conviction becomes final. “[T]he
Supreme Court has held that in the context of postconviction
relief, finality attaches when the Supreme Court
‘affirms a conviction on the merits on direct review or
denies a petition for a writ of certiorari, or when the time
for filing a certiorari petition expires.'”
Robinson v. United States, 416 F.3d 645, 647 (7th
Cir. 2005) (internal citations omitted). In the absence of an
appeal, Villalobos' conviction became final on January
14, 2017. His instant motion was filed more than fourteen
months after that date.
Villalobos appears to have missed his deadline for filing his
motion, that does not end the Court's analysis. There are
two common-law exceptions that still might apply to render
Villalobos' petition timely: the “actual
innocence” gateway and equitable tolling. The actual
innocence gateway allows excuse of a procedural default when
a petitioner “‘presents evidence of innocence so
strong that a court cannot have confidence in the outcome of
the trial unless the court is also satisfied that the trial
was free of nonharmless error.'” Gladney v.
Pollard, 799 F.3d 889, 896 (7th Cir. 2015) (quoting
Schlup v. Delo, 513 U.S. 298, 316 (1995)). In other
words, to be entitled to the actual innocence gateway,
Villalobos must show that new evidence makes it unlikely that
he would have been found guilty. Id. at 896. All of
Villalobos' grounds for relief are assertions that he
received ineffective assistance of counsel. See
(Docket #1 at 6-9). None of the grounds even mention
innocence, so it appears he is not asserting such a claim.
second potential exception is “equitable
tolling.” See United States v. Marcello, 212
F.3d 1005, 1010 (7th Cir. 2000). Equitable tolling can excuse
an untimely petition if the petitioner establishes “(1)
that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and
prevented timely filing.” Socha v. Boughton,
763 F.3d 674, 683 (7th Cir. 2014) (quoting Holland v.
Florida, 560 U.S. 631, 649 (2010)). “[T]he
threshold necessary to trigger equitable tolling is very
high, ” and it is “an extraordinary remedy
[which] is rarely granted.” Marcello, 212 F.3d
at 1010; Obriecht v. Foster, 727 F.3d 744, 748 (7th
Cir. 2013). Even where it applies, equitable tolling can only
offer a “brief extension of time during which a late
filing will be accepted.” Gray v. Zatecky, 865
F.3d 909, 912 (7th Cir. 2017). The Seventh Circuit has held
that a petition which was just two months late could not be
saved by equitable tolling. Gladney, 799 F.3d at
activity (or lack thereof) in Villalobos' criminal case
reveals that he could not carry his burden to establish the
first element of equitable tolling. True enough, Villalobos
submitted a number of filings requesting materials to file a
Section 2255 motion and to obtain transcripts. Criminal Case,
(Docket #210, #214, #215, and #217). However, the first of
these filings came on April 3, 2017, almost three months
after the limitations period had already expired.
Villalobos cannot possibly prove diligence when he allowed
fifteen months to pass without any court filings at all.
subsequent timeline of events is worse still. Villalobos'
April 3, 2017 filing sought a blank form Section 2255 motion.
Id., (Docket #210). He did not actually file a
Section 2255 motion in the following weeks or months.
Instead, eight months later, he requested another
form motion, complaining that his prior form had been lost
upon his transfer to a new prison. (Docket #214).
Villalobos' final submissions came two months after that,
requesting sentencing transcripts and yet another form
motion. (Docket #215 and #217). Villalobos seems to have
exercised almost no diligence in pursuing post-conviction
relief, much less reasonable diligence. See Carpenter v.
Douma, 840 F.3d 867, 871 (7th Cir. 2016) (petitioner was
not diligent, even after filing various motions to hold his
request for habeas relief in abeyance, when he waited until
seven months beyond the limitations period to file his
petition for habeas relief).
it is rare for equitable tolling to be definitively absent on
the face of a habeas motion, see, e.g., Gildon v.
Bowen, 384 F.3d 883, 886-87 (7th Cir. 2004), the
circumstances of this case warrant such a finding.
Villalobos' motion is plainly time-barred and cannot be
saved by resort to equitable principles. The Court is,
therefore, is compelled to deny the motion and dismiss this
action with prejudice.
Rule 11(a) of the Rules Governing Section 2255 Cases,
“the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” To obtain a certificate of appealability
under 28 U.S.C. § 2253(c)(2), Villalobos must make a
“substantial showing of the denial of a constitutional
right” by establishing that “reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or
that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal citations
omitted). No reasonable jurists could debate whether
Villalobos' motion was timely. As a consequence, the
Court is compelled to deny a certificate of appealability as
to Villalobos' motion.
the Court closes with some information about the actions that
Villalobos may take if he wishes to challenge the Court's
resolution of this case. This order and the judgment to
follow are final. A dissatisfied party may appeal this
Court's decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within 30
days of the entry of judgment. See Fed. R. App. P.
3, 4. This Court may extend this deadline if a party timely
requests an extension and shows good cause or excusable
neglect for not being able to meet the 30-day deadline.
See Fed. R. App. P. 4(a)(5)(A). Moreover, under
certain circumstances, a party may ask this Court to alter or
amend its judgment under Federal Rule of Civil Procedure
59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of
judgment. The Court cannot extend this deadline. See
Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of
Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. See
Id. A party is expected to closely review all applicable
rules and determine what, if any, further action is
appropriate in a case.
IT IS ORDERED that Petitioner's motion
to vacate, set aside, or correct his sentence pursuant to
Section 2255 (Docket #1) be and the same is hereby
IS FURTHER ORDERED that this action be and the same
is hereby ...