Fernandez-Rosa v. United States
- Richard Sullivan
- 1:23-cv-01973
- U.S. District Court · Southern District of New York
- 5
In Fernandez-Rosa v. United States, Judge Sullivan found the motion timely and granted amendment, allowing the Section 2255 case to proceed.
Hector Emilio Fernandez-Rosa’s Section 2255 challenge was allowed to proceed past the timeliness and initial-review stages, and he was permitted to amend it. The United States was ordered to respond by September 15, 2023, and Fernandez-Rosa was ordered to reply by October 16, 2023. The order did not decide whether his conviction or sentence should be set aside.
What happened
In Fernandez-Rosa v. United States, Hector Emilio Fernandez-Rosa asked the court to set aside his 2019 conviction and sentence after he pleaded guilty to conspiring to distribute cocaine. The court had questioned whether his motion was filed too late because the Clerk’s Office received it after the claimed mailing dates.
Fernandez-Rosa submitted declarations from two inmates supporting his account that he placed motions in the prison mailing system on August 29 and October 30, 2022. The government said it was not in a position to dispute the filing’s timeliness. Fernandez-Rosa also asked to add arguments about entrapment, the calculation of his base offense level, and his defense counsel’s explanation of deportation rules.
Judge Sullivan found the Section 2255 motion was not time-barred and should not be summarily denied as meritless. He granted Fernandez-Rosa’s request to amend, directed the government to respond by September 15, 2023, and directed Fernandez-Rosa to reply by October 16, 2023; the court did not decide the underlying claims.
The detailed version
- Fernandez-Rosa v. United States · No. 1:23-cv-01973
- Richard Sullivan
- Aug. 16, 2023
Background
Hector Emilio Fernandez-Rosa, who was incarcerated and representing himself, moved under 28 U.S.C. § 2255 to vacate or set aside his 2019 conviction and sentence. The conviction followed his guilty plea to one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846.
The court previously ordered Fernandez-Rosa to explain why his Section 2255 motion should not be denied as untimely. The motion was dated October 30, 2022, but the Clerk’s Office received it on January 19, 2023. The court later received a duplicative motion dated August 29, 2022. Fernandez-Rosa stated that he placed the first motion in the prison mailing system on August 29, 2022, but facility staff rejected that mailing. He said he then placed another motion in the mailing system on October 30, 2022.
The court held a conference about the filing deadline and directed Fernandez-Rosa to submit documents and witness affidavits concerning when and how he mailed the motions. He submitted declarations from Christopher Glenn and Saiyd Muhammad supporting his account. The government stated that it was not in a position to dispute the timeliness of the filing and asked the court to set a briefing schedule.
Timeliness and initial review
The court concluded that the motions would be timely if they were placed in the prison mailing system on the dates Fernandez-Rosa claimed. It stated that the applicable deadline was November 1, 2022, rather than September 1, 2022, because a Supreme Court order during the COVID-19 pandemic temporarily extended the time to petition for review from 90 to 150 days.
Applying the prison-mailing rule, under which an incarcerated person’s filing is generally treated as filed when delivered to prison authorities for mailing, the court found that the submitted materials supported Fernandez-Rosa’s account. The court therefore found that the Section 2255 motion was not time-barred. It also concluded that the motion should not be summarily denied as lacking merit. The order did not decide whether Fernandez-Rosa’s underlying challenges to his conviction or sentence would succeed.
Amendment
Fernandez-Rosa moved under Federal Rule of Civil Procedure 15 to supplement his Section 2255 pleading. The court treated the request as a motion to amend rather than a request to file a supplemental pleading because the proposed arguments did not concern events occurring after the original petitions.
The proposed amendment raised three arguments: entrapment; an allegedly improper calculation of Fernandez-Rosa’s base offense level; and an allegation that defense counsel failed to adequately explain deportation rules in connection with the guilty plea. Because Fernandez-Rosa was representing himself, because the government had not yet responded, and because Section 2255 restricts later or successive applications, the court granted the request to amend.
Disposition and next steps
The court directed the Clerk to treat the pending Section 2255 motions in No. 23-cv-1973 as amended motions in No. 23-cv-544 and to administratively close No. 23-cv-1973. The government was ordered to respond by September 15, 2023, and Fernandez-Rosa was ordered to reply by October 16, 2023. The court also directed that future filings include the criminal docket number and be docketed in the criminal case. The order terminated specified pending motions but did not resolve the Section 2255 claims on their merits.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.