Borja v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ALEXANDER BORJA,

Prisoner,

v. Case No. 8:23-cv-2598−KKM−AEP

Case No. 8:21-cr-156-KKM-AEP

UNITED STATES OF AMERICA,

Respondent.

____________________________________

ORDER

Prisoner Alexander Borja moves to vacate his 108-month sentence for

conspiracy to possess with intent to distribute cocaine and possession with intent

to distribute cocaine while on board a vessel subject to the jurisdiction of the

United States. See 28 U.S.C. § 2255. Borja claims he is entitled to a sentence

reduction under Rule 35(b) of the Federal Rules of Criminal Procedure. Because

his claim is untimely, not cognizable, procedurally defaulted, and meritless, his

motion to vacate is denied.

I. Background

A grand jury indicted Borja with one count of conspiring to possess with

intent to distribute five kilograms or more of cocaine, in violation of 46 U.S.C. §§

70503(a), 70506(a) and (b); and one count of possessing with intent to distribute

five kilograms or more of cocaine, in violation of 46 U.S.C. §§ 70503(a), 70506(a)

and (b), and 18 U.S.C. § 2. (Crim. Doc. 1.) Borja pleaded guilty as charged without

a plea agreement. (Crim. Docs. 65, 73, 79.)

The presentence report calculated an advisory guidelines range of 108 to 135

months based on Borja’s total offense level of 31 and his criminal history category

of I. (Crim. Doc. 102 at ¶ 60.) At sentencing, counsel urged the district court to

grant Borja a two-level downward variance based on his cooperation with law

enforcement (Crim. Doc. 125 at 17):

Mr. Borja has been cooperative in this case, Your Honor. He

proffered very early on in the case initially. There were a

couple of gentlemen that he remembered thereafter that

proffer[ed]. I reached out to agents and gave them that

information and as a result there was a follow-up proffer that

was conducted and there was a follow-up conversation with

agents, but also an additional proffer that was conducted

whereby [Borja] pointed out several individuals. After about

four hours of conversation with agents, he identified . . . five

different photos of individuals that the agent showed that are

individuals that they have been hearing about from this boat

case, but as well as various others—other boat cases as far as

individuals that are cultivating or that are the owners of these

drugs.

The United States opposed a downward variance because Borja acted as the

vessel’s captain, recruited his co-defendant, and was not held accountable for

hundreds of kilograms of cocaine that sunk into the ocean. (Id. at 14.)

The district court sentenced Borja to 108 months. (Id. at 22.) In declining to

grant a downward variance, the district court considered that Borja proffered

truthfully and received safety-valve relief, but he served as the vessel’s captain

and participated in the scheme for monetary benefit. (Id. at 21–22.) A judgment

was entered against Borja on April 6, 2022. (Crim. Doc. 113.)

Borja filed no appeal. Instead, on May 23, 2023, he filed pro se a “Motion to

Compel” the United States to move for a sentence reduction under Rule 35(b).

(Crim. Doc. 119.) On April 5, 2022 (the day before his sentencing), Borja provided

information to federal agents about the leader of a drug trafficking operation in

Colombia. (Id. at 1.) According to Borja, the federal agents orally agreed to file a

motion to reduce his sentence in exchange for this information. (Id.) In his motion

to compel, Borja acknowledged that “the district court cannot interfere[e] with the

Government’s decision to file a Rule 35 Motion[,]” but he nevertheless urged the

district court to compel the United States to move for a sentence reduction based

on his “oral agreement” with the United States. (Id. at 2.)

The district court denied the motion to compel on June 1, 2023. (Crim. Doc.

120.) The district court reasoned that it “cannot require the United States to file a

motion to reduce [Borja’s] sentence—that is solely within the government’s

discretion.” (Id.) “If [Borja] wants to otherwise challenge his sentence based on

representations made by the government,” the district court observed, “the proper

vehicle is through a habeas motion under 28 U.S.C. § 2255.” (Id.)

Borja now moves to vacate his sentence and claims that he is entitled to a

sentence reduction under Rule 35(b). (Civ. Docs. 1 and 11.) The United States

responds that Borja’s claim is untimely, not cognizable, procedurally defaulted,

and meritless. (Civ. Doc. 8.)

II. Borja’s claim is untimely.

The Antiterrorism and Effective Death Penalty Act imposes a one-year

statute of limitations for filing a § 2255 motion to vacate or correct sentence. 28

U.S.C. § 2255(f). Under § 2255(f)(1), the limitations period begins to run from “the

date on which the judgment of conviction becomes final.” If a defendant does not

appeal, his conviction becomes final upon the expiration of the period for filing a

timely notice of appeal, or 14 days after the entry of judgment. Fed. R. App. P.

4(b)(1)(A); Akins v. United States, 204 F.3d 1086, 1089 n.1 (11th Cir. 2000).

Borja’s judgment of conviction was entered on April 6, 2022. (Crim. Doc.

111.) The judgment became final 14 days later, on April 20, 2022. Therefore, under

§ 2255(f)(1), Borja had until April 20, 2023, to file his § 2255 motion. Borja did not

file his § 2255 motion until November 7, 2023, the date on which he signed the

motion while incarcerated. (Civ. Doc. 1.) See Daniels v. United States, 809 F.3d 588,

589 (11th Cir. 2015) (quoting Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir.

2009)) (when determining whether a § 2255 motion is timely, “[w]e apply the

prison mailbox rule, under which ‘a pro se prisoner’s court filing is deemed filed

on the date it is delivered to prison authorities for mailing’”). Thus, Borja’s § 2255

motion is untimely under § 2255(f)(1).

Recognizing that his § 2255 motion is untimely, Borja asserts that he is

entitled to equitable tolling of the limitations period because, “[b]etween July 2022

and September 2023, [h]e corresponded with [counsel] and sent several letters

asking for the status of his Motion For Sentence Reduction.” (Civ. Doc. 1 at 16.)

Borja claims he “was very specific [in his correspondence with counsel] about his

concern about the 1 year limitation to file his cooperation motion under Rule

35(b)(1) and/or 28 U.S.C. § 2255(f)(1).” (Id.) According to Borja, counsel advised

him “’to keep waiting and his cooperation motion would be filed.’” (Id.) However,

when no Rule 35(b) motion was filed, Borja filed a pro se motion to compel the

United States to file a Rule 35(b) motion on May 23, 2023. (Id.) Although the district

court denied the motion to compel on June 1, 2023, Borja claims he did not receive

the order denying his motion to compel until September 2023. (Id. at 17.)

“[E]quitable tolling is an extraordinary remedy which is typically applied

sparingly.” Dodd v. United States, 365 F.3d 1273, 1282 (11th Cir. 2004) (quotations

omitted). Equitable tolling can apply to a § 2255 motion. Sandvik v. United States,

177 F.3d 1269, 1271 (11th Cir. 1999). To toll the limitation period, the movant must

show “(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and prevented timely filing.” Holland

v. Florida, 560 U.S. 631, 649 (2010) (quotations omitted). “The diligence required for

equitable tolling purposes is ‘reasonable diligence’, not ‘maximum feasible

diligence.’” Id. (citations omitted). “The focus of the inquiry regarding

extraordinary circumstances is on the circumstances surrounding the late filing of

the habeas petition . . . and whether the conduct of others prevented the petitioner

from timely filing.” Arthur v. Allen, 452 F.3d 1234, 1253 (11th Cir. 2006) (quotations

omitted). The extraordinary circumstance must be “both beyond [the movant’s]

control and unavoidable even with diligence.” Johnson v. United States, 340 F.3d

1219, 1226 (11th Cir. 2003). “The burden of establishing entitlement to this

extraordinary remedy plainly rests with the petitioner.” Dodd, 365 F.3d at 1282

(quotations omitted).

Borja shows neither that he exercised reasonable diligence in pursuing his

rights nor that an extraordinary circumstance prevented him from timely filing his

§ 2255 motion. Borja points to his phone calls and letters to counsel as evidence of

his diligence. However, Borja cannot show he exercised reasonable diligence

because he admits that he knew about the one-year limitation period when he

corresponded with counsel but he nevertheless knowingly allowed the limitation

period to expire before filing his § 2255 motion. (Civ. Doc. 1 at 16.) Accepting as

true that counsel advised Borja “ ‘to keep waiting and his cooperation motion

would be filed[,]’ ” counsel’s advice does not excuse Borja’s late filing because he

neglects to show that he independently exercised reasonable diligence in filing his

§ 2255 motion. See Vahlkamp v. Sec’y, DOC, No. 21-14052, 2022 WL 17752230, at *2

(11th Cir. Dec. 19, 2022) (“Although [counsel] should have been more responsive,

[the defendant] bore the burden to prove that he, not his counsel, independently

exercised reasonable diligence.”). Even if Borja was relying on his expectation that

a Rule 35(b) motion would be filed, Borja offers no reason he was prevented from

timely filing his § 2255 motion. Nor does Borja explain why he waited until

November 7, 2023, to file his § 2255 motion when he received notice of the denial

of his motion to compel approximately two months earlier, in September 2023.

Furthermore, Borja’s expectation that a Rule 35(b) motion would be filed is

not an extraordinary circumstance that warrants equitable tolling. “The

government has the power, but not a duty, to file a substantial assistance motion.”

Lanier v. United States, 769 F. App’x 847, 851 (11th Cir. 2019) (citing United States v.

Dorsey, 554 F.3d 958, 960 (11th Cir. 2009)). “The prosecutorial discretion to refuse

to file a substantial assistance motion is subject to judicial review only if it is based

on an unconstitutional motive, such as the defendant’s race or religion, or is not

rationally related to any legitimate government end.” Lanier, 769 F. App’x at 851

(citing Wade v. United States, 504 U.S. 181, 185–86 (1992)). “The government’s

failure to exercise its Rule 35 discretion, especially in absence of even an allegation

of improper motive, does not amount to an extraordinary circumstance.” Lanier,

769 F. App’x at 851 (ruling that the United States’ failure to file a Rule 35(b) motion

did not constitute an extraordinary circumstance warranting equitable tolling).

Borja makes no allegation that the United States’ decision not to file a Rule

35(b) motion was based on an unconstitutional motive. And, he did not enter into

a plea agreement in which such a motion was promised. Borja merely claims that

he was orally promised a sentence reduction in exchange for “very specific

information about five (5) specific individuals and their drug trafficking

operation” that he provided to federal agents. (Civ. Doc. 11 at 2.) That this

information did not result in a Rule 35(b) motion is not an extraordinary

circumstance that warrants equitable tolling.

In one sentence, and without any elaboration, Borja states that he “is a

Colombian native and does not speak any English and has been relying on a bi-

lingual inmate Law Clerk to assist him with his judicial proceedings.” (Crim. Doc.

1 at 17.) To the extent Borja contends that his lack of English proficiency excuses

his late filing, this assertion is insufficient to raise the issue of equitable tolling. See

San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir. 2011) (“Mere conclusory

allegations are insufficient to raise the issue of equitable tolling.”). Moreover, his

lack of English proficiency does not constitute an extraordinary circumstance that

tolls the limitation period. “An extraordinary circumstance exists only if the delay

is ‘unavoidable even with diligence.’” Cerrito v. Sec’y, Dep’t of Corr., 693 F. App’x

790, 792 (11th Cir. 2017) (quoting Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000))

(ruling that the inability to understand English, the inability to read beyond a

second-grade level, and the inaccessibility of a bilingual inmate law clerk were not

exceptional circumstances under which an untimely filing was unavoidable even

with diligence); see also United States v. Montano, 398 F.3d 1276, 1280 n.5 (11th Cir.

2005) (finding that “difficulties with the English language” did not constitute an

extraordinary circumstance to justify equitable tolling and citing Cobas v. Burgess,

306 F.3d 441, 444 (6th Cir. 2002) (holding that the “inability to read and speak

English is not in itself a sufficient basis for equitabl[e] tolling”)); Aureoles v. Sec’y,

Dep’t of Corr., 609 F. App’x 623, 624 (11th Cir. 2015) (“[Defendant’s] allegations of

an inability to understand English and a lack of formal education did not establish

extraordinary circumstances that warranted equitable tolling.”). And, pro se

litigants are presumed to know of the one-year statute of limitations even when

they lack English-language proficiency. See Perez, 519 F. App’x at 997; DeLeon v.

Fla. Dep’t of Corr., 470 F. App’x 732, 734 (11th Cir. 2012) (“An inability to

understand English does not constitute extraordinary circumstances justifying

equitable tolling.”).

Borja emphasizes that he did not receive notice until September 2023 of the

district court’s denial of his motion to compel on June 1, 2023. He vaguely suggests

that this delay in receipt of the district court’s order further justifies equitable

tolling of the limitation period. The record shows that the Clerk mailed the district

court’s order to Borja at his then-current place of incarceration, and the mail was

not returned as undeliverable. Nevertheless, accepting as true that Borja was not

immediately notified of the district court’s denial of his motion to compel, such

circumstance is not probative of Borja’s diligence in adhering to the § 2255 filing

deadline because Borja filed his motion to compel on May 23, 2023, one month

after the April 20, 2023 deadline for filing a § 2255 motion. See Lugo v. Sec’y, Fla.

Dep’t of Corr., 750 F.3d 1198, 1210 (11th Cir. 2014) (ruling that “matters from various

state and federal court proceedings that [occurred] after the one-year limitations

period expired . . . are not probative of [the defendant’s] diligence during the

relevant time period before the limitations period expired”) (emphasis in original);

Vicario v. U.S. Attorney Gen., 407 F. App’x 357, 359 (11th Cir. 2010) (ruling that

events that “occurred well after the filing deadline do not bear on [the] failure to

[adhere to the filing deadline] and would not entitle him to equitable tolling”).

Consequently, Borja shows that none of these circumstances—his

communications with counsel, his lack of English proficiency, and his delayed

receipt of the order denying his motion to compel—justify equitable tolling of the

limitations period.

III. Borja’s claim is not cognizable.

Even if Borja timely filed his § 2255 motion, his claim that he is entitled to a

Rule 35(b) sentence reduction is not cognizable in this action. “Section 2255 does

not provide a remedy for every alleged error in conviction and sentencing.”

Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc). Rather, § 2255

authorizes an attack on a sentence on four grounds: (1) it “was imposed in

violation of the Constitution or the laws of the United States,” (2) it was imposed

without jurisdiction; (3) it exceeds the maximum authorized by law; or (4) it “is

otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a).

“[A] collateral challenge, such as a § 2255 motion, may not be a surrogate

for a direct appeal.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004).

Because collateral review is not a substitute for direct appeal, a defendant must

raise on direct appeal all available claims. “Relief under 28 U.S.C. § 2255 ‘is

reserved for transgressions of constitutional rights and for that narrow compass of

other injury that could not have been raised in direct appeal and would, if

condoned, result in a complete miscarriage of justice.’” Richards v. United States,

837 F.2d 965, 966 (11th Cir. 1988) (quoting United States v. Capua, 656 F.2d 1033,

1037 (5th Cir. Unit A Sep. 1981)).

“Unless the claimed error involves a lack of jurisdiction or a constitutional

violation, § 2255 relief is limited.” Ayuso v. United States, 361 F. App’x 988, 991 (11th

Cir. 2010) (citing United States v. Addonizio, 442 U.S. 178, 185 (1979)). “An error that

is not jurisdictional or constitutional will form the basis for § 2255 relief only where

‘the claimed error constituted a fundamental defect which inherently results in a

complete miscarriage of justice.’” Ayuso, 361 F. App’x at 991 (quoting Addonizio,

442 U.S. at 185). A non-constitutional error that results in a miscarriage of justice

“should present exceptional circumstances where the need for the remedy

afforded by the writ of habeas corpus is apparent.” Hill v. United States, 368 U.S.

424, 428 (1962).

Here, Borja does not challenge the voluntary nature of his guilty plea by

claiming that it was induced by a promise of a forthcoming Rule 35(b) motion. He

does not claim that counsel rendered ineffective assistance while negotiating a plea

deal in exchange for a Rule 35(b) motion. He does not claim that the United States

breached a plea agreement by not moving for a sentence reduction despite his

substantial assistance. And he does not claim that the United States’ decision not

to file a Rule 35(b) motion was based on an unconstitutional motive such as race

or religion. See e.g., Lanier, 769 F. App’x at 848; Anzalone v. United States, No. 18-

11959, 2019 WL 2108062, at * 1–2 (11th Cir. Apr. 30, 2019) (affirming the denial of

§ 2255 relief because the plea agreement contained no promise of a Rule 35(b)

motion and the defendant did not allege “any unconstitutional motive on the part

of the government for failing to file a substantial assistance motion”).

Rather, Borja merely claims that he is entitled to a Rule 35(b) motion because

of the information he provided to federal agents. He alleges that he “had a

reasonable belief that he would receive some type of benefit for the information[.]”

(Civ. Doc. 11 at 3.) This claim is not cognizable under § 2255 because it is not a

constitutional error and does not rise to the level of a miscarriage of justice. See

Wade, 504 U.S. at 186 (“[A] claim that a defendant merely provided substantial

assistance will not entitle a defendant to a remedy or even to discovery or an

evidentiary hearing.”).1

IV. Borja’s claim lacks merit.

Even if the district court generously construes Borja’s allegations to state a

cognizable claim that the United States breached an agreement by not moving for

a sentence reduction, he is entitled to no relief because the record refutes such a

claim. Borja pleaded guilty without a plea agreement. Therefore, any claim that

the United States breached the terms of a non-existent plea agreement necessarily

fails. See Anzalone, No. 18-11959, 2019 WL 2108062, at *2 (affirming no breach

because the plea agreement contained no promise of a Rule 35(b) motion). Borja

alleges that, in exchange for information he provided to federal agents the day

before sentencing, the federal agents orally agreed to file a motion to reduce his

sentence. Even if true, a federal agent lacks authority to bind the United States to

1 The United States correctly argues that Borja’s allegations are also procedurally

defaulted because Borja could have appealed the district court’s order denying his motion

to compel. See e.g., United States v. Nance, 426 F. App’x 801 (11th Cir. 2011) (affirming that

the district court lacked jurisdiction to review a claim that the United States breached a

plea agreement by refusing to file a Rule 35(b) motion and affirming the denial of a

motion to compel). Instead, Borja initiated this action, presumably following the district

court’s observation that the proper vehicle to otherwise challenge his sentence based on

representations made by the government is a motion under 28 U.S.C. § 2255. (Crim. Doc.

120.) However, as explained supra, Borja fails to allege a cognizable claim in this action.

an agreement for a sentence reduction. See Dresser Indus., Inc. v. United States, 596

F.2d 1231, 1236 (5th Cir. 1979) (“It is well established that the federal government

will not be bound by a contract or agreement entered into by one of its agents

unless such agent is acting within the limits of his actual authority.”); Augusta

Aviation, Inc. v. United States, 671 F.2d 445, 449 (11th Cir. 1982) (same). Borja’s claim

fails because the United States is not bound by the federal agents’ oral agreement

and Borja does not allege that the prosecutor entered the agreement. Borja is

entitled to no relief because the record of his criminal action contains no evidence

of an obligation by the United States to file a Rule 35(b) motion.

V. No Certificate of Appealability

Borja is not entitled to a certificate of appealability (COA). A prisoner

moving under § 2255 has no absolute entitlement to appeal a district court’s denial

of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must first

issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has

made a substantial showing of the denial of a constitutional right.” To merit a

certificate of appealability, Borja must show that reasonable jurists would find

debatable both (1) the merits of the underlying claims and (2) the procedural issues

he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478

(2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show

that reasonable jurists would debate either the merits of the claims or the

procedural issues, Borja is entitled to neither a certificate of appealability nor an

appeal in forma pauperis.

VI. Conclusion

Borja’s motion under § 2255 to vacate, set aside, or correct his sentence (Civ.

Doc. 1) is DENIED and a certificate of appealability is DENIED. Leave to appeal

in forma pauperis is similarly DENIED. Borja must obtain permission from the

circuit court to appeal in forma pauperis. The clerk is directed to enter a

JUDGMENT against Borja, terminate any pending motions, CLOSE this case, and

enter a copy of this order in the criminal case.

ORDERED in Tampa, Florida, on April 24, 2025.

athryn’ Kimball Mizelle

United States District Judge

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