United States District Court, Northern District of Georgia, Atlanta Division
February 24, 2015
JUAN CAMPOS-REYES BOP ID 60697-019, Movant,
UNITED STATES OF AMERICA, Respondent. MOTION TO VACATE 28 U.S.C. § 2255 CRIMINAL ACTION NO. 1:09-CR-64-2-ODE
ORINDA D. EVANS UNITED STATES DISTRICT JUDGE
This matter is before the Court on Juan Campos-Reyes's "Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255" [Doc. 191], the magistrate judge's "Final Report and Recommendation" recommending dismissal and denial of a Certificate of Appealability (the "Final R&R") [Doc. 192], and Mr. Campos-Reyes's "Response to the 'R&R' Filed by Magistrate Judge" (the "Objections") [Doc. 204].
A district judge has a duty to conduct a "careful and complete" review of a magistrate judge's Final R&R. Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (internal quotations marks and citation omitted) . Where objections are made, a district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (the district judge must "give fresh consideration to those issues to which specific objection has been made by a party") (internal quotation marks and citation omitted).
The Final R&R concluded that the judgment in Mr. Campos-Reyes's criminal case became final on January 26, 2010 (when his time to file a direct appeal expired) and that his § 2255 motion was therefore untimely because he waited until June 25, 2014 to file it (more than three years after the one-year limitation period applicable to § 2255 motions under 28 U.S.C. § 2255(f) had expired) . See [Doc. 192 at 1-2] . The Final R&R considered whether Mr. Campos-Reyes was entitled to equitable tolling of the one-year limitation period and concluded that he was not because he had not exercised due diligence in seeking relief under § 2255. See [id. at 3] . The Final R&R recommended that Mr. Campos-Reyes's § 2255 motion be dismissed as untimely and that no Certificate of Appealability be issued because it is not debatable among jurists of reason that dismissal was appropriate. See [id. at 4-5] .
Although Mr. Campos-Reyes has filed eight pages of Objections, see [Doc. 204], he has not rebutted the Final R&R's conclusion that he did not exercise due diligence in filing his § 2255 motion after the one-year limitation period expired. Rather, Mr. Campos-Reyes acknowledges that he waited over two years before contacting this Court to find out whether an appeal had been filed in his case and that he waited an additional two years to file his § 2255 motion. See [Doc. 204 at 4]. This confirms that he did not exercise "due diligence" in seeking relief under § 2255.
To the extent that Mr. Campos-Reyes argues that his entitlement to equitable tolling should be judged by an "excusable neglect" standard, see [Doc. 204 at 5-7], the Court notes that the Supreme Court has instructed federal courts that the "due diligence" standard applied in the Final R&R is the correct standard. See generally Holland v. Florida, 560 U.S. 631, 649 (2010). And, while "[t]he diligence required for equitable tolling purposes is 'reasonable diligence, ' not 'maximum feasible diligence, ' id. at 653 (internal quotation marks and citations omitted), it is readily apparent that Mr. Campos-Reyes did not exercise "reasonable diligence" when he waited two years after his criminal conviction became final to inquire about the status of his appeal and an additional two years to file for relief under § 2255. Mr. Campos-Reyes's Objections are OVERRULED and the Final R&R is APPROVED and ADOPTED as the Order of the Court. Mr. Campos-Reyes's § 2255 Motion is DISMISSED as untimely and a Certificate of Appealability is DENIED.