Escribano v. United States

Background

Zaie Escribano, who was incarcerated at the time of the order, sent the court a letter challenging the legality of his sentence. He had pleaded guilty to possessing a firearm during a crime of violence under 18 U.S.C. § 924(c)(A)(1). On November 2, 2018, the court sentenced him to 84 months in prison, consecutive to an undischarged Pennsylvania state sentence, followed by five years of supervised release. He did not appeal his conviction.

Escribano’s April 3, 2022, letter argued that Supreme Court decisions established that a Hobbs Act robbery conspiracy was not a crime of violence and that his firearm conviction therefore could not stand. He asked the court to vacate the conviction and appoint counsel. The Clerk opened the letter as a new civil action under 28 U.S.C. § 2255, the federal procedure allowing a person in federal custody to challenge a conviction or sentence.

Court’s Analysis

The court construed the letter as a motion under Section 2255 because Escribano was challenging his federal conviction. It explained that a Section 2255 motion must identify every ground for relief, provide supporting facts, state the requested relief, and be signed under penalty of perjury. The letter did not clearly identify all of Escribano’s grounds and was not signed under penalty of perjury.

The court also found that the motion appeared to be untimely. It stated that Escribano’s conviction became final around January 31, 2019, and that his filing, if dated April 3, 2022, came more than three years later. The court understood his reference to new Supreme Court rulings to refer to United States v. Davis, decided June 24, 2019, and stated that a motion relying on a newly recognized Supreme Court right generally had to be filed by June 24, 2020. The court did not decide whether equitable tolling—an extension of a filing deadline in rare circumstances—applied. Instead, it directed Escribano to provide facts showing why the deadline should be extended.

Disposition

The court granted Escribano 60 days’ leave to file an amended Section 2255 motion complying with the required format. Within that period, he had to either notify the court that he wished to withdraw the motion or file the amended motion with the required claims, facts, requested relief, signature, and explanation of timeliness or equitable tolling. The court stated that the amended motion would later be reviewed for substantive sufficiency. If Escribano failed to comply and could not show good cause, the motion would be denied.

The court denied Escribano’s application for appointed counsel without prejudice to renewal later, after more facts and legal issues had been presented. It also stated that a certificate of appealability would not issue and certified that any appeal would not be taken in good faith; permission to appeal without paying filing fees was therefore denied. The order did not decide the ultimate validity of Escribano’s conviction or sentence.