# Borrome v. United States

> District Court, M.D. Florida · September 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10643120

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 26, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10643120

## How later opinions describe it (automated extraction)

- 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”
- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10643120. Public record. Not legal advice.