The opinion of the court was delivered by: Hon. Janet T. Neff
This matter is before the Court on Camilo Nunez Gutierrez's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Dkt 424). The Government has filed a Motion to Dismiss (Dkt 425) on the basis that Gutierrez's complaint is time-barred pursuant to § 2255(f). Gutierrez has filed a Response (Dkt 428) to the Government's Motion.
On July 26, 2002, Gutierrez pled guilty to conspiracy to possess with intent to distribute and to distribute at least 1,000 kilograms of marijuana and at least 5 kilograms of cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1), 841 (b)(1)(A)(ii) and (vii) (Dkt 217). On November 12, 2002, Gutierrez was sentenced to 151 months imprisonment followed by 5 years of supervised release and, a Judgment was entered that same day (Dkt 271). Gutierrez did not appeal the Judgment. On February 4, 2009, more than six years later, Gutierrez filed this motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Dkt 424).
Respondent has moved to dismiss Gutierrez's motion because it is time-barred by the one-year limitations period under 28 U.S.C. § 2255(f)(1) (Dkt 425 at 2). Gutierrez counters with the argument that the circumstances of this case warrant equitable tolling of the § 2255 limitations period (Dkt 428 at 2-3).
The one-year limitation period in § 2255 is subject to the doctrine of equitable tolling. Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir. 2001). However, "[t]he petitioner bears the burden of demonstrating that he is entitled to equitable tolling." McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003).
In support of his argument for equitable tolling, Gutierrez points to the five factors set forth in Dunlap, 250 F.3d at 1008-09. In Dunlap, the Sixth Circuit Court of Appeals ruled that the test to determine whether equitable tolling of the habeas limitations period is appropriate is the five-part test set forth in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988):
(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim. Dunlap, 250 F.3d at 1008.
More recently, however, the United States Supreme Court has held that a petitioner seeking equitable tolling must (1) show that he has been pursuing his rights diligently, and (2) point to "some extraordinary circumstance" that stood in the way. Lawrence v. Florida, 549 U.S. 327, 336 (2007); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Similarly, the Sixth Circuit has emphasized that "equitable tolling [should] be applied sparingly." Dunlap, 250 F.3d at 1009. Moreover, the Andrews factors are not necessarily comprehensive, and they are not all relevant in all cases. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Ultimately, the decision whether to equitably toll a period of limitations must be decided on a case-by-case basis. Griffin v. Rogers, 399 F.3d 626, 635 (6th Cir. 2005).
Gutierrez argues that he lacked notice of the filing requirement because he was never advised by the trial court or his counsel of the deadline under § 2255. However, the Sixth Circuit has held that the statutory language itself is enough to place petitioners on notice of timing issues imposed by the statute of limitations. Allen v. Yukins, 366 F.3d 396, 402 (6th Cir. 2004). Even if Gutierrez lacked actual knowledge of the limitations period, ignorance of the law alone is insufficient to warrant equitable tolling. Id. at 403.
Gutierrez also asserts that he lacked constructive notice because: (1) he could not understand English; and (2) he is proceeding pro se. As an initial matter, Gutierrez has failed to show that he could not speak or understand the English language. A review of the transcript from Gutierrez's sentencing in 2002 shows that Gutierrez was able to testify fluently in English at his sentencing.*fn1
Moreover, "[a]n inability to speak, write and/or understand English, in and of itself, does not automatically give a petitioner reasonable cause for failing to know about the legal requirements for filing his claims." Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002). "[W]here a petitioner's alleged lack of proficiency in English has not prevented the petitioner from accessing the courts, that lack of proficiency is insufficient to justify an equitable tolling of the statute of limitations." Id.
With regard to his pro se status, Gutierrez argues that it was reasonable for him to remain ignorant of the limitations period because he did not have the assistance of counsel and thus relied on "jailhouse lawyers," who, although diligent, did not have a clear understanding of the law. However, the fact that Gutierrez is untrained in the law, may have been proceeding without a lawyer, or may have been unaware of the statute of limitations for a period of time does not warrant tolling. See Allen, 366 F.3d at 403 (neither ignorance of the law nor the reliance on incorrect legal advice justifies tolling); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) (holding that "ignorance of the law, even for an incarcerated pro se ...