Borrome v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOSE BORROME,

v. Case No. 8:17-cr-202-VMC-UAM

8:22-cv-2489-VMC-UAM

UNITED STATES OF AMERICA.

______________________________/

ORDER

On October 23, 2022, Jose Borrome, proceeding pro se,

filed a 28 U.S.C. § 2255 Motion to Vacate, Set Aside or

Correct Sentence. (Civ. Doc. # 1; Crim. Doc. # 123). The

United States of America moved to dismiss the 2255 Motion as

untimely on January 11, 2023. (Civ. Doc. # 5). Mr. Borrome

responded in opposition to the Motion to Dismiss. (Civ. Doc.

# 6). For the reasons that follow, the Motion to Dismiss is

granted and the 2255 Motion is dismissed as untimely.

I. Background

In July 2017, pursuant to a plea agreement, Mr. Borrome

pled guilty to conspiracy to distribute and possess with

intent to distribute five kilograms or more of cocaine while

on board a vessel subject to the jurisdiction of the United

States. (Crim. Doc. ## 36, 51, 66, 72). The Court sentenced

him to 120 months’ imprisonment. (Crim. Doc. ## 106, 121).

Mr. Borrome’s judgment of conviction was entered on November

7, 2017. (Crim. Doc. # 121). Mr. Borrome did not appeal.

Years later, on October 23, 2022, Mr. Borrome filed the

instant 2255 Motion, arguing among other things that the

Maritime Drug Law Enforcement Act (“MDLEA”) is

unconstitutional and this Court lacks jurisdiction over him.

(Civ. Doc. # 1; Crim. Doc. # 123). Now, the United States

moves to dismiss the 2255 Motion as untimely and,

alternatively, argues the 2255 Motion should be denied on the

merits. (Civ. Doc. # 5). Mr. Borrome has responded (Civ. Doc.

# 6), and the Motion to Dismiss and 2255 Motion are ripe for

review.

II. Discussion

“The [Antiterrorism and Effective Death Penalty Act of

1996 (‘AEDPA’)] established a one-year statute of limitations

applicable to § 2255 motions, which begins to run from, inter

alia, ‘the date on which the judgment of conviction becomes

final.’” Ramirez v. United States, 146 F. App’x 325, 326 (11th

Cir. 2005) (quoting 28 U.S.C. § 2255). “In most cases, a

judgment of conviction becomes final when the time for filing

a direct appeal expires.” Id.

In certain other circumstances, the one-year statute of

limitations runs from (1) “the date on which the impediment

to making a motion created by governmental action in violation

of the Constitution or laws of the United States is removed,

if the movant was prevented from making a motion by such

governmental action”; (2) “the date on which the right

asserted was initially recognized by the Supreme Court, if

that right has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral review”;

or (3) “the date on which the facts supporting the claim or

claims presented could have been discovered through the

exercise of due diligence.” 28 U.S.C. § 2255(f)(2)-(4). None

of these circumstances is present here.

Judgment was entered in this case on November 7, 2017.

(Crim. Doc. # 121). Under Federal Rule of Appellate Procedure

5(b)(1)(A), Mr. Borrome had fourteen days — until November

21, 2017 — to file a notice of appeal. Fed. R. App. P.

5(b)(1)(A). But Mr. Borrome did not file a notice of appeal.

Thus, Mr. Borrome’s judgment of conviction became final on

November 21, 2017. “The limitation period started the next

day, and the time to file a Section 2255 motion expired a

year later” — on November 22, 2018. Salley v. United States,

No. 8:19-cr-317-MSS-AEP, 2023 WL 3568618, at *1 (M.D. Fla.

May 18, 2023). But Mr. Borrome did not file the instant 2255

Motion until October 23, 2022 — almost four years after the

deadline. (Civ. Doc. # 1; Crim. Doc. # 123). Thus, the 2255

Motion is untimely.

Mr. Borrome appears to contend that his 2255 Motion is

timely because it was filed within one year of the First

Circuit’s now-withdrawn opinion United States v. Davila-

Reyes, 23 F.4th 153 (1st Cir. 2022), reh’g en banc granted,

opinion withdrawn, 38 F.4th 288 (1st Cir. 2022), and on reh’g

en banc, 84 F.4th 400 (1st Cir. 2023). (Id. at 10). This

argument fails. Besides the fact that the opinion on which

Mr. Borrome relies was withdrawn, this case is governed by

the law of the Eleventh Circuit — not the First Circuit.

Relatedly, Davila-Reyes was not decided by the Supreme Court,

so it did not recognize a new right that was made retroactive

on collateral review. See 28 U.S.C. § 2255(f)(3) (stating

that the one-year limitation period may run from “the date on

which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by the

Supreme Court and made retroactively applicable to cases on

collateral review”).

Mr. Borrome also argues that, because he is raising a

jurisdictional challenge, “the Court’s obligation to ensure

that jurisdiction was properly exercised in this case should

override any objection to proceeding at this time.” (Civ.

Doc. # 6 at 5 n.1). This is incorrect. The one-year limitation

period applies even to jurisdictional challenges made in a

Section 2255 motion. See Williams v. United States, 383 F.

App’x 927, 929–30 (11th Cir. 2010) (“The habeas statute

specifically includes jurisdictional challenges in its

enumeration of grounds for relief from sentence that may be

asserted under § 2255. Nothing in the statutory language

suggests that jurisdictional challenges are exempt from the

one-year limitations period that applies to ‘a motion under

this section.’” (citations omitted)).

Finally, Mr. Borrome has not established entitlement to

equitable tolling. “Because equitable tolling is an

extraordinary remedy, it is limited to rare and exceptional

circumstances and typically applied sparingly.” Hunter v.

Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009) (citation and

internal quotation marks omitted). “The petitioner has the

burden of proving entitlement to equitable tolling by showing

that ‘extraordinary circumstances that were both beyond his

control and unavoidable even with diligence’ prevented filing

the petition on time.” Jones v. United States, 304 F.3d 1035,

1040 (11th Cir. 2002) (citation omitted). A general change in

the law does not suffice to warrant equitable tolling, so

even if the law surrounding the MDLEA had changed, this likely

would not be an extraordinary circumstance. See Outler v.

United States, 485 F.3d 1273, 1281 (11th Cir. 2007) (“After

careful consideration of all the circumstances, we cannot

conclude that Outler has established an entitlement to

equitable tolling. As discussed below, we do not believe that

the mere change of law worked by Castro is sufficient.”). And

Mr. Borrome has not established any other reason for equitable

tolling.

The United States’s Motion to Dismiss is granted and Mr.

Borrome’s 2255 Motion is dismissed as untimely.

Alternatively, even if Mr. Borrome’s 2255 Motion were

timely, the Motion would still be denied for the reasons

explained by the United States. (Civ. Doc. # 5 at 9-16). That

is, Mr. Borrome’s claims are procedurally defaulted and,

regardless, are waived by his guilty plea. See United States

v. Ruiz, 811 F. App’x 540, 543 (11th Cir. 2020) (“Ruiz’s

guilty plea also means he has waived his arguments that the

government proffered insufficient evidence to support his

conviction and that the district court relied on improper

evidence to show that the vessel was stateless and therefore

subject to the United States’ jurisdiction under the MDLEA.

Ruiz’s argument that his vessel was not stateless is a

challenge to the district court’s finding that the Coast Guard

complied with the MDLEA, not to the subject matter

jurisdiction of the district court.”); United States v.

Forbes-Suarez, 553 F. App’x 913, 914 (11th Cir. 2014) (finding

that defendant arguing that the MDLEA is unconstitutional as

applied to him “waived the right to raise his present

challenge to his conviction by entering an unconditional

guilty plea”).

Furthermore, his claims are meritless under Eleventh

Circuit precedent. See, e.g., United States v. Hernandez, 864

F.3d 1292, 1303 (11th Cir. 2017) (holding, under similar

facts, “that the MDLEA was a constitutional exercise of

Congressional authority under the Felonies Clause, and that

the conduct proscribed by the MDLEA need not have a nexus to

the United States”); United States v. Santos-Santana, No. 22-

10367, 2022 WL 17973602, at *7 (11th Cir. Dec. 28, 2022)

(“[W]e decline to adopt the holding of the First Circuit’s

now-withdrawn opinion in Davila-Reyes given our precedent

concluding that other provisions of the MDLEA are

constitutional under the Felonies Clause.”).

III. Evidentiary Hearing

As the Court readily determined that Mr. Borrome’s

Motion was untimely, no evidentiary hearing is required. See

28 U.S.C. § 2255(b) (stating that an evidentiary hearing is

not necessary if “the motion and the files and records of the

case conclusively show that the prisoner is entitled to no

relief”); see also Hernandez v. United States, 778 F.3d 1230,

1232-33 (11th Cir. 2015) (“To establish that he is entitled

to an evidentiary hearing, Hernandez had to allege facts that

would prove that his counsel performed deficiently and that

he was prejudiced by his counsel’s deficient performance.”).

IV. Certificate of Appealability and Leave to Appeal In

Forma Pauperis Denied

The Court declines to issue a certificate of

appealability because Mr. Borrome has failed to make a

substantial showing of the denial of a constitutional right

as required by 28 U.S.C. § 2253(c)(2). Nor will the Court

authorize Mr. Borrome to proceed on appeal in forma pauperis

because such an appeal would not be taken in good faith. See

28 U.S.C. § 1915(a)(3). Mr. Borrome shall be required to pay

the full amount of the appellate filing fee pursuant to

Section 1915(b)(1) and (2).

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) The United States of America’s Motion to Dismiss (Civ.

Doc. # 5) is GRANTED.

(2) Jose Borrome’s pro se 28 U.S.C. § 2255 Motion to Vacate,

Set Aside or Correct Sentence (Civ. Doc. # 1; Crim. Doc.

# 123) is DISMISSED as untimely.

(3) The Clerk is directed to enter judgment accordingly and

close this case.

DONE and ORDERED in Chambers in Tampa, Florida, this

26th day of September, 2024.

lagi 9n. Munenby Cree

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE