Nunez v. United States of America
- Valerie Caproni
- 1:21-cv-09755
- U.S. District Court · Southern District of New York
- 3
In Nunez v. United States, Judge Caproni reclassified Starlin Nunez’s filing and gave him 60 days to withdraw it or explain its possible lateness.
Starlin Nunez, the self-represented movant challenging his federal conviction and sentence, must choose whether to withdraw the filing or explain why the Section 2255 deadline should not bar it. The United States is the respondent, but the court did not require an answer at this stage.
What happened
In Nunez v. United States of America, Starlin Nunez challenged his federal conviction and 108-month sentence, claiming ineffective assistance of counsel. Although he used a form for a different type of petition, the court treated his filing as a motion under Section 2255 because he sought to overturn his conviction and sentence.
The court said the motion may be too late because Nunez filed it more than two years and six months after his conviction became final, while the usual deadline is one year. The court gave him 60 days to withdraw the motion or file a declaration explaining why the deadline should not apply.
Judge Valerie Caproni did not decide Nunez’s ineffective-assistance claims. She also ruled that no appeal certificate would issue and denied permission to appeal without paying fees; if Nunez failed to respond and could not excuse that failure, the motion would be denied as time-barred.
The detailed version
- Nunez v. United States of America · No. 1:21-cv-09755
- Valerie Caproni
- Nov. 29, 2021
Background
Starlin Nunez, who was being held at the Westchester County Jail, filed a self-represented application using a form for a petition under 28 U.S.C. § 2241. He challenged the legality of his federal conviction and sentence and asserted ineffective-assistance-of-counsel claims. The opinion states that he had pleaded guilty to one count of racketeering conspiracy and received a sentence of 108 months’ imprisonment followed by three years of supervised release. He did not appeal.
Recharacterization under Section 2255
The court held that Nunez’s application had to be treated as a motion under 28 U.S.C. § 2255 because he sought to vacate his federal conviction and sentence. The court gave him 60 days to notify the court in writing if he wanted to withdraw the application instead of pursuing relief under Section 2255. If he did not withdraw it, the filing would remain designated as a Section 2255 motion.
Possible time bar
The court explained that Section 2255 generally requires a federal prisoner to file within one year of the latest of four specified events, including when the conviction becomes final or when supporting facts could have been discovered through reasonable diligence. Nunez placed the application in the prison mail system on October 29, 2021, more than two years and six months after his conviction became final. The court therefore directed him to show cause—meaning provide a legally sufficient explanation—within 60 days why the motion should not be denied as time-barred. The court identified diligence and an extraordinary circumstance as facts that could support extending the deadline.
Disposition
The court construed the application as a Section 2255 motion and ordered Nunez, by January 28, 2022, either to withdraw it or file a declaration showing cause against dismissal as time-barred. The court stated that, if he filed a declaration, it would review the declaration and, if appropriate, order the motion served on the United States. If he failed to comply and could not show good cause for that failure, the motion would be denied as time-barred. The court did not rule on the ineffective-assistance claims or otherwise decide whether Nunez was entitled to vacatur of his conviction or sentence. It also stated that a certificate of appealability would not issue and denied permission to appeal without paying filing fees.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.