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5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, ) Case No. SACV 17-00917 DDP ) [CR 98-00143 DDP] 12 Plaintiff, ) ) 13 v. ) ORDER GRANTING MOTION TO DISMISS ) 14 JAVIER PONCE CASTELLON, ) ) 15 Defendants. ) ) 16 17 Presently before the court is the government’s Motion to 18 Dismiss Defendant’s Motion for Relief Pursuant to 28 U.S.C. § 2255. 19 Having considered the submissions of the parties, the court grants 20 the motion and adopts the following Order. 21 I. Background 22 Petitioner Javier Ponce Castellon (“Petitioner”) was a leader 23 of a drug trafficking organization headed by his brother, Jose 24 Ponce Castellon (“Jose”). In 2000, a jury convicted Petitioner and 25 his brother of multiple drug trafficking offenses. In 2002, 26 another judge of this Court sentenced Petitioner to 360 months 27 imprisonment, followed by five years of supervised release. 28 Petitioner and his brother, Jose, filed separate appeals that same 1 day. 8:98-cr-00143, Dkt. 636, 632. 2 In October 2003, the Ninth Circuit affirmed Jose’s conviction 3 and sentence. United States v. Castellon, 80 F. App’x 562 (9th 4 Cir. 2003). Petitioner’s appeal remained pending. 5 On January 3, 2005, Jose filed a § 2255 petition. 6 8:98-cr-00143, Dkt. 659. The court’s docket entry, however, 7 incorrectly identified the document as “Motion filed by Javier 8 Ponce Castellon.”1 Id. The caption of the document itself 9 correctly listed Petitioner’s brother, Jose, as the filing party. 10 The next docket entry ordered the government to file a response “as 11 to Jose Castellon Ponce.” 8:98-cr-00143, Dkt. 660. The 12 government’s opposition, however, like the initial Petition, was 13 docketed as an Opposition “as to Javier Ponce Castellon,” even 14 though the document itself correctly listed Jose on the caption. 15 8:98-cr-00143, Dkt. 661. A government surreply was correctly 16 docketed as pertaining to Jose. 8:98-cr-00143, Dkt. 636, 17 8:98-cr-00143, Dkt. 663. Ultimately, the court denied Jose’s 18 petition in May 2005, as correctly reflected on the docket “as to 19 Jose Castellon Ponce.” 8:98-cr-00143, Dkt. 664. Throughout this 20 period, Petitioner’s appeal remained pending before the Ninth 21 Circuit. 22 The underlying criminal case was then reassigned to the 23 undersigned. 8:98-cr-00143, Dkt. 670. Shortly thereafter, the 24 Ninth Circuit resolved Petitioner’s appeal and affirmed his 25 conviction, observing that Petitioner “raise[d] several arguments 26 that are essentially the same as those that were raised and 27 28 1 All emphasis in docket descriptions herein are added. 1 rejected in his brother’s appeal arising from the same trial.” 2 United States v. Castellon, 135 F. App’x 122, 124 (9th Cir. 2005). 3 The court granted, however, a limited Ameline remand for 4 resentencing. Id. In March 2006, this Court resentenced 5 Petitioner to a term of 360 months, followed by five years of 6 supervised release. 8:98-cr-00143, Dkt. 664. 7 Approximately eight years later, Petitioner filed a “Motion to 8 Reconsider and Reopen,” the first of a flurry of filings over the 9 following years. Those filings, including a 2255 motion, a motion 10 to supplement and amend, a motion for an extension of time to 11 amend, a motion to reduce sentence, and other motions, are 12 described in greater detail in this Court’s prior Order. Dkt. 42. 13 As pertinent here, the Ninth Circuit concluded that Petitioner’s 14 initial Motion to Reopen should have been construed as a 2255 15 motion. United States v. Castellon, 688 F. App’x 464 (9th Cir. 16 2017). The court further observed that, “[r]echaracterized as a 17 section 2255 habeas, Castellon’s motion appears to be untimely. Any 18 such finding, however, cannot be made until the district court 19 follows the procedures set forth in Castro v. United States, 540 20 U.S. 375, 383.” Id. at n.1. 21 Accordingly, this Court granted Petitioner leave to file an 22 Amended 2255 petition, with instructions that Petitioner’s filing 23 would be construed as an initial 2255 motion. Dkt. 42. Petitioner 24 proceeded to file an amended motion. Dkt. 43. The government now 25 moves to dismiss the amended motion as untimely. Dkt. 45. 26 II. Discussion 27 In general, a 2255 motion must be filed within one year of the 28 date on which a conviction becomes final. 28 U.S.C. § 2255(f)(1). 1 Here, although the government concedes that Petitioner’s latest 2 2255 motion relates back to the date of Petitioner’s initial 3 “Motion to Reopen,” there is no dispute that Petitioner did not 4 file that initial motion until approximately eight years after his 5 conviction because final, following resentencing. Thus, there is 6 also no dispute that Petitioner does not fall within the one-year 7 limitations period prescribed by section 2255(f)(1).2 8 Petitioner contends, however, that he is entitled to equitable 9 tolling. A § 2255 movant is entitled to equitable tolling “only if 10 he shows (1) that he has been pursuing his rights diligently, and 11 (2) that some extraordinary circumstance stood in his way and 12 prevented timely filing.” United States v. Buckles, 647 F.3d 883, 13 889 (9th Cir. 2011) (internal quotation marks omitted). Petitioner 14 attempts to satisfy both of these requirements by claiming that the 15 court’s docketing error, which erroneously described Jose’s January 16 2005 motion as having been filed by Petitioner, led Petitioner to 17 believe that he himself had filed a 2255 motion, which he believed 18 was pending for approximately eight years before he then filed his 19 “Motion to Reopen.” 20 This argument is not persuasive. As an initial matter, 21 although the docket did twice mis-identify the motion as pertaining 22 to Petitioner rather than Jose, the documents themselves clearly 23 list Jose’s name on the caption, pertain to Jose, and were filed by 24 Jose’s counsel. Even assuming that Petitioner only had the docket 25 sheet available to him, he cannot credibly claim that he did not 26 know whether he himself had filed a motion on his own behalf. Nor, 27 2 As discussed above, the Ninth Circuit has already suggested 28 that Petitioner’s motion appears to be untimely. 1 having participated in an eleven-day jury trial while represented 2 by counsel necessarily distinct from Jose’s separate counsel, can 3 Petitioner reasonably assert that he thought Jose’s separate 4 counsel filed a 2255 motion on Petitioner’s behalf. Moreover, the 5 court’s orders “as to Jose Castellon Ponce,” including the denial 6 of the 2255 motion, would make little sense if, as Petitioner now 7 contends he believed, that motion had been filed on Petitioner’s 8 behalf, rather than Jose’s. Although the docketing errors could 9 certainly have caused some degree of confusion, no reasonably 10 diligent defendant would wait eight-years before attempting to 11 resolve any ambiguity. 12 Furthermore, Jose’s mis-docketed 2255 motion was filed in 13 January 2005, while Petitioner’s own appeal was still pending. 14 “[F]ederal prisoners must exhaust appellate review prior to filing 15 for habeas relief in the district court.” United States v. 16 LaFromboise, 427 F.3d 680, 686 (9th Cir. 2005); see also Feldman v. 17 Henman, 815 F.2d 1318, 1321 (9th Cir. 1987). A viable 2255 motion 18 could not, therefore, have been filed on Petitioner’s behalf in 19 January 2005. This rule is well-settled. See, e.g., Fernandez v. 20 United States, No. 14-CR-277-GPC, 2019 WL 446244, at *2 (S.D. Cal. 21 Feb. 5, 2019); United States v. Descamps, No. CR-05-104-FVS, 2011 22 WL 1259840, at *1 (E.D. Wash. Apr. 1, 2011). Accordingly, 23 Petitioner’s unsupported assertion that his own trial counsel 24 mistakenly believed that the January 2005 filing pertained to 25 Petitioner strains credulity.3 26 3 It is unclear whether Petitioner asserts that his own 27 counsel mistakenly (A) remembered filing a 2255 motion on Petitioner’s behalf, (B) believed Petitioner filed the motion pro 28 (continued...) 1 Because Petitioner has not shown that he is entitled to 2 equitable tolling, his 2255 motion is untimely, and must be 3]| dismissed. 4] III. Conclusion 5 For the reasons stated above, the government’s Motion to Dismiss is GRANTED. Petitioner’s Amended Motion (Dkt. 43), which this Court construes as his initial motion, is DISMISSED. 81 IT ITS SO ORDERED. 9 Dated: June 12, 2023

DEAN D. PREGERSON

11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 °(...continued) Ser OF (C) thought Jose’s counsel somehow filed the motion on Petitioner’s behalf. Any of these possibilities, however, would 28 have run afoul of the exhaustion requirement, of which counsel, who filed Petitioner’s notice of appeal, was presumably aware.