Escribano v. United States

Background

Zaie Escribano filed a motion under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a sentence. He initially filed a letter challenging the legality of his sentence, and the court treated it as a § 2255 motion. The court allowed him to file an amended motion and directed him to address whether it was timely or whether equitable tolling—an exception that can extend a filing deadline in appropriate circumstances—applied.

Escribano had pleaded guilty on July 20, 2018, to a lesser included offense of Count Eleven: aiding and abetting the use, carrying, and possession of a brandished firearm during and in relation to a crime of violence. The predicate crime of violence was the substantive robbery charged in Count Ten. The court sentenced him to 84 months’ imprisonment, consecutive to an undischarged Pennsylvania state sentence, followed by five years of supervised release. He did not appeal his conviction or sentence.

Escribano argued that the robbery underlying Count Eleven was not a “crime of violence” under 18 U.S.C. § 924(c)(3)(A). He appeared to rely on later Supreme Court decisions, including United States v. Davis. He attributed his filing delay to transfers between state and federal custody and among facilities, as well as limited access to research materials during the COVID-19 pandemic. The government opposed the motion.

Court’s Analysis

The court determined that no hearing was necessary because the parties’ written submissions and existing records presented no factual dispute that testimony could materially resolve.

The court first held that Escribano’s plea agreement waived his right to challenge any sentence at or below the stipulated 84-month sentence. The agreement waived a direct appeal, a collateral challenge—including a motion under § 2255 or § 2241—and a sentence-modification request. During his guilty-plea proceeding, Escribano confirmed under oath that he understood he was giving up the right to challenge a sentence of up to 84 months, whether the sentence ran consecutively or concurrently with another sentence. The court found the waiver knowing and voluntary and found no reason not to enforce it. It therefore held that the collateral-attack waiver barred the petition.

The court also held that Escribano had procedurally defaulted his claim. Procedural default generally prevents a court from considering a claim that could have been raised on direct appeal but was not. To overcome the default, Escribano had to show cause and actual prejudice, or actual innocence. The court found that he did neither. He did not claim that he would not have pleaded guilty if he had received different advice or that he misunderstood the consequences of his plea. He also did not claim factual innocence and instead challenged only the use of the robbery as a sentencing predicate. The court concluded that the claim was procedurally defaulted and stated that it must be dismissed.

Ruling and Disposition

The court denied Escribano’s § 2255 motion in its entirety. Because the petition was barred by the collateral-attack waiver and procedurally defaulted, the court did not address whether the motion was timely or whether the crime-of-violence argument had merit. Judge Laura Taylor Swain declined to issue a certificate of appealability and certified that any appeal would not be taken in good faith. The court directed entry of judgment and closure of the civil case.