The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
E-FILED Friday, 04 November, 2011 04:30:28 PM Clerk, U.S. District Court, ILCD
This case is before the court for ruling on the Motion for Reconsideration (#8) filed by Petitioner, Jasper Vargas. This court concludes that Petitioner has shown that his Motion to Vacate, Set Aside, or Correct Sentence (#1) was timely filed. Therefore, Petitioner's Motion for Reconsideration (#8) is GRANTED. This court therefore vacates its Opinion (#6), which dismissed the Motion (#1) as untimely. Following this court's careful consideration of the merits of Petitioner's Motion (#1), this court concludes that Petitioner is not entitled to relief under 28 U. S. C. § 2255. Accordingly, Petitioner's Motion (#1) is DENIED on the merits.
On October 8, 2010, Petitioner, Jasper Vargas, filed a pro seMotion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (#1) and a Memorandum in Support (#2). Petitioner argued that: (1) his constitutional right to effective counsel was violated because his trial counsel failed to challenge expert testimony provided by the case agent, Douglas Goodmanson, and his appellate counsel failed to raise the issue on appeal; (2) he was denied the effective assistance of counsel because his trial counsel did not object to evidence which bolstered the credibility of two key prosecution witnesses and his appellate counsel did not raise the issue on appeal; and (3) because of the cumulative effect of these failures he was denied a fair trial. On November 5, 2010, the Government filed its Response to the Petitioner's Motion Pursuant to 28 U.S.C. § 2255 (#4). The Government argued that the Motion was untimely and also provided a detailed response to Petitioner's claims. On November 22, 2010, Petitioner filed a Reply (#5).
On July 26, 2011, this court entered an Opinion (#6). After careful and thorough review, this court concluded that Petitioner's Motion under § 2255 was time-barred. This court concluded that Petitioner's judgment became final on March 31, 2009, 90 days after his conviction was affirmed by the Seventh Circuit and his time to file for a petition for a writ of certiorari expired. Therefore, to be timely, Petitioner's Motion under § 2255 had to be filed by March 31, 2010. This court noted that, on July 30, 2009, Petitioner filed an untimely petition for a writ of certiorari with the Supreme Court. (Docket No. 09-5730). The Supreme Court denied Petitioner's petition for a writ of certiorari on October 5, 2009. This court concluded that an untimely petition for a writ of certiorari does not toll the statute of limitations under § 2255. Therefore, this court concluded that Petitioner's Motion under § 2255, filed on October 8, 2010, was time-barred because it was filed 191 days late.
This court recognized that Petitioner argued in his Reply (#5) that the substantive part of his petition for a writ of certiorari was timely filed on March 20, 2009. Petitioner stated that the Supreme Court noted "technical deficiencies" in his petition and requested that he submit a "declaration of indigence." Petitioner claimed that the Supreme Court made it clear to him that the "substance of the petition was accepted and was not subject to further revision." He went on to state that in June 2009 the Supreme Court "had trouble finding an active case for petitioner in its database and requested further details." He referred to a letter he attached from the Clerk of the Supreme Court. However, this letter was not attached by the Petitioner and the Supreme Court's website indicated that Petitioner's petition for a writ of certiorari was not filed until July 30, 2009.
This court stated that it appeared that Petitioner was making an argument for equitable tolling. This court stated that, if Petitioner wanted to make a legal argument for equitable tolling he should have provided sufficient evidence for this court to make such a ruling. This court further stated that it was not this court's responsibility to ferret out evidence and non-public documents that are beneficial to Petitioner. This court therefore concluded that Petitioner's Motion under § 2255 (#1) was untimely. Petitioner's Motion (#1) was dismissed as time-barred.
MOTION FOR RECONSIDERATION
On August 11, 2011, Petitioner filed a Motion for Reconsideration (#8). Petitioner attached his own affidavit and also attached copies of correspondence from the United States Supreme Court. The affidavit and correspondence show that Petitioner filed a petition for a writ of certiorari with the Supreme Court which was postmarked March 20, 2009, and was received by the Supreme Court on March 25, 2009. The office of the clerk of the Supreme Court, William K. Suter, returned the petition to Petitioner with a letter which explained the corrections which needed to be made to the petition. The letter stated that Petitioner had 60 days to return the petition with the required corrections. On May 22, 2009, Suter's office sent a letter to Petitioner which stated that the "above-entitled petition for writ of certiorari was originally postmarked March 20, 2009 and received again on May 22, 2009." The letter stated that the papers were being returned to Petitioner again because he failed to append the lower court opinion. On June 9, 2009, Petitioner sent a letter to Suter's office and stated that he was enclosing the lower court opinion to satisfy the requirements of the May 22, 2009 letter. On June 19, 2009, Suter's office sent a letter to Petitioner stating that his petition for writ of certiorari was being returned to him because he had not attached a notarized affidavit or declaration of indigency. On July 21, 2009, Suter's office sent a letter to Petitioner stating that his petition for writ of certiorari was received on July 21, 2009, and was being returned because it was not submitted within 60 days of the March 25, 2009 letter. The letter stated that "[i]f the lower court opinions, which were again not included in the petition, are criminal in nature, the petition can be resubmitted and docketed with a notation as to its timeliness."
Petitioner also attached copies of records from the Supreme Court which show that his petition for writ of certiorari was filed on July 30, 2009, with a response due on September 4, 2009. On August 11, 2009, the Government filed a waiver of right to respond. On August 13, 2009, the petition was distributed for "Conference of September 29, 2009," and was denied on October 5, 2009. Petitioner stated in his affidavit that the petition was not returned as untimely but was denied on the merits. Petitioner stated that he, therefore, relied on the date of the denial of October 5, 2009, as the date the limitations period for his Motion under § 2255 commenced. Petitioner stated that he delivered his Motion to the institutional mail room on October 4, 2010. This court notes that Petitioner's Motion, which was filed in this court on October 8, 2010, was signed by Petitioner on October 4, 2010.
The Government has not filed any opposition to the Motion for Reconsideration (#8).
After consideration of the documentation now provided by Petitioner, this court concludes that Petitioner originally filed his petition for writ of certiorari on March 20, 2009, and the Supreme Court ultimately accepted the petition and denied it on the merits on October 5, 2009. Therefore, Petitioner's Motion under § 2255 (#1), which was mailed on October 4, 2010, was timely.
Petitioner's Motion for Reconsideration (#8) is GRANTED. This court vacates its Opinion (#6), which dismissed the Motion (#1) as untimely, and will consider the merits of the Motion (#1).
FACTS On November 20, 2004, an Illinois state trooper determined that Petitioner's tractor-trailer was exceeding the speed limit as it traveled northbound on Interstate 57 in Iroquois County in the Central District of Illinois. The trooper conducted a traffic stop and noticed that Petitioner appeared nervous and his hands were shaking. During a search of the tractor-trailer, agents found a compartment hidden behind a load of produce in the refrigeration unit of the trailer and discovered 157 bundles containing 282 kilograms of cocaine with a wholesale value of approximately 5.6 million dollars.
On February 3, 2005, in Case No. 05-CR-20007, a grand jury in the Central District of Illinois charged Petitioner with one count of possession of more than five kilograms of cocaine with intent to distribute it in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii). A jury trial commenced on January 16, 2007. Petitioner was represented at trial by appointed counsel, John C. Taylor and Mark C. Palmer. On January 18, 2007, this court declared a mistrial after the jury was unable to reach a verdict. The jury disclosed (on its own, with no inquiry from this court) that it was deadlocked 11 to 1 in favor of convicting Petitioner. On January 31, 2007, following a retrial, a jury found Petitioner guilty. On ...