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Isaraphanich v. United States

United States District Court, M.D. Florida, Orlando Division

January 17, 2018

WERAWAT ISARAPHANICH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          GRECORY A. PRESNELL UNITED STATES DISTRICT JUDGE

         This cause is before the Court on the Order (Doc. 26) entered by the Eleventh Circuit Court of Appeals on October 20, 2017.[1] Petitioner initiated this case by filing a Motion to Vacate, Set Aside, or Correct Sentence in March 2015 (“March 2015 Motion to Vacate, ” Doc. 1) pursuant to 28 U.S.C. § 2255. The March 2015 Motion to Vacate was filed with the Court on March 26, 2015, but was deemed filed on March 19, 2015, under the mailbox rule. The Court entered an Order on December 15, 2015, dismissing the case as untimely. (Doc. 7). Petitioner appealed, and the Eleventh Circuit Court of Appeals (“Eleventh Circuit”) entered an Order vacating the order of dismissal and remanding the case to this Court “to accept new evidence and conduct further proceedings as to the timeliness of [Petitioner's] § 2255 motion.” (Doc. 26 at 2).

         The Court then entered an Order (Doc. 28) requiring the parties to file (a) documents or other evidence related to the timeliness of the March 2015 Motion to Vacate, and (b) a memorandum of law discussing the timeliness of the March 2015 Motion to Vacate in light of the additional evidence. Petitioner filed a Memorandum of Law In Support of Timeliness of Motion to Vacate (Doc. 29), a Supplemental Memorandum of Law In Support of Petitioner's Motion to Vacate (Doc. 30), and an Affidavit (Doc. 31). The Government filed a Memorandum of Law In Opposition to Petitioner's Memorandum of Law In Support of Timeliness of Motion to Vacate (Doc. 33).

         I. Procedural Background

         The procedural background of this case is set forth in the Court's Order of December 15, 2015 (Doc. 7).

         II. Analysis

         In the present case, the Judgment of Conviction was entered by the Court on January 28, 2014. Because no appeal was filed, the Judgment of Conviction became final fourteen days after its entry by the Court. Thus, Petitioner's conviction became final on February 11, 2014, and Petitioner had until February 11, 2015, to file a section 2255 motion. As a result, the Court found that the Motion to Vacate was untimely because it was filed over a month later, in March.

         According to Petitioner, he prepared a draft Motion to Vacate in “late December, 201[4], ” and “instead of filing [it], he allowed another inmate who styled himself as a `Jail-House Lawyer' to read his Motion.” (Doc. 29 at 2). This “inmate convinced the Petitioner that changes were necessary and that rather than file the Motion to Vacate as prepared, he should instead file a request for extension of time.” (Id.). As a result, Petitioner prepared a motion for extension of time and sent it to this Court on December 28, 2014. (Id. at 2-3). The motion for extension of time was filed on December 29, 2014, and it was denied on January 5, 2015. (Criminal Case 6:13-cr-226-Orl-31TBS, Doc. Nos. 46, 47).

         Petitioner states that he “consider[ed] the changes that the `Jail-House Lawyer' was suggesting” and that he “decided not to let him make the changes, and instead proceeded to file the Motion to Vacate as prepared.” (Doc. 29 at 3). Petitioner claims that this Motion to Vacate (hereinafter referred to as the “December 2014 Motion to Vacate”) “was made on December 31, 2014 by again using FPC Otisville's Legal Mail System.” (Id. at 3, 9). However, Petitioner acknowledges that the Court's “Docket Sheet does not reflect receipt of this filing.” (Id. at 3-4).

         Because Petitioner did not receive a response from the Court, he asked his wife to inquire with the Court as to the status of the December 2014 Motion to Vacate. (Id. at 4). Petitioner's wife informed him that the December 2014 Motion to Vacate had not been received by the Court, and Petitioner acknowledges that the Court did not receive the December 2014 Motion to Vacate. (Id. at 3-4).[2]

         Petitioner states that, [i]n order to rectify this non-receipt, [he] signed a copy of the original [December 2014] Motion, and filed it with the Court.” (Id.) (emphasis added).[3] The Court received the March 2015 Motion to Vacate on March 26, 2015, and it was deemed filed on March 19, 2015, under the mailbox rule. (Doc. 1). Petitioner argues that, although the Court did not receive the December 2014 Motion to Vacate, the Court should construe that Motion to Vacate as having been filed on December 31, 2014, under the mailbox rule.

         Respondents provided a copy of the outgoing mail log from FCI Otisville, where Petitioner was incarcerated at the times relevant to this discussion, and it reveals that Petitioner sent a document to the “United States District Court Office of the Clerk” on December 31, 2014. (Doc. 33-2 at 2). The nature of the document is not revealed in the mail log, and it is not in any manner identified.

         A defendant seeking to vacate his sentence bears the burden of sustaining his contentions by a preponderance of the evidence. In re Moore, 830 F.3d 1268, 1272 (11th Cir. 2016).[4] The Court finds that Petitioner has not met his burden.

         First, Petitioner mentions that the March 2015 Motion to Vacate was a “copy” of the December 2014 Motion to Vacate. However, in the March 2015 Motion to Vacate, Petitioner identified two Motions to Amend Presentence Report that he filed in criminal case number 6: 6:13-cr-226-Orl-31TBS on January 26, 2015 (Criminal Case Doc. 48), and on February 27, 2015 (Criminal Case Doc. 52). (Doc. 1 at 2-3). Since those motions were filed ...


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