United States District Court, M.D. Tennessee, Nashville Division
WILLIAM J. HAYNES, Jr., District Judge.
Movant, Jose Bencomo-Castillo, filed this pro se action under 28 U.S.C. § 2255 seeking to set aside his convictions for conspiracy to kidnap, kidnapping, kidnapping a minor, and brandishing firearm during a crime of violence for which he received an effective sentence of 324 months. (United States v. Castillo, 3:04cr149, Docket Entry No. 226 Judgment at 1, 2). After review of the pro se motion, the Court appointed the Federal Public Defender who filed an amended motion with two claims: (1) that his trial counsel failed to advise Movant adequately on acceptance of an alleged government plea offer; and (2) that trial counsel failed to address Movant's complaints during trial about the counts.
In an earlier proceeding, the Court denied without prejudice the Respondent's motion to dismiss this action as untimely. The Court set an evidentiary hearing on Movant's request for equitable tolling. Movant argues that his claims about his trial counsel are interrelated with his request for equitable tolling. The Respondent renews its motion to dismiss this action as time barred. (Docket Entry No. 43).
A. Findings of Fact
The facts underlying Movant's convictions were stated by the Sixth Circuit in Movant's joint appeal with his co-defendants:
In this consolidated appeal, the defendants, Hector Saul Mendez, Jose Alvarado Borrego, Jose Bencomo-Castillo, Jose Bejarano Hernandez, and Juan Victor Perez, challenge their convictions for conspiring to kidnap three persons, in violation of 18 U.S.C. § 1201(c); kidnaping three persons, including a minor, in violation of 18 U.S.C. §§ 1201(a)(1) and 1201(g); and brandishing or being principals to the brandishing of firearms during the kidnaping, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(ii). We will affirm.
In 2004, Hernandez and Juan Chavez, a local drug dealer, engaged in a series of drug transactions, whereby Hernandez would arrange a delivery of marijuana and cocaine to Chavez through Hernandez's Mexican contacts. After two major deliveries, Chavez defaulted on payment and owed the Mexican dealers over one million dollars. Under pressure from the Mexican suppliers to collect from Chavez, Hernandez conceived a scheme to kidnap Chavez's mother, Rosa Chavez, hold her captive, and then demand that Juan Chavez pay a ransom for her release. Hernandez recruited the other defendants to help him execute the plan.
On August 7, 2004, the five defendants traveled from Dalton, Georgia, to Rosa Chavez's home in Nashville, Tennessee. Around midnight, Borrego forced open Mrs. Chavez's front door and went inside, followed by Bencomo-Castillo, Mendez, and Perez openly displaying firearms. The defendants abducted the three occupants of the home, Rosa Chavez, Eloy Florez (Rosa's boyfriend), and Estephany Marquez (Juan Chavez's fourteen year old niece), at gunpoint, eventually driving them to a Super 8 Motel in Dalton, Georgia, and holding them as hostages.
On August 9, 2004, the police arrested all five kidnapers before any ransom was paid.
Following a joint trial at which Hernandez was the only defendant to testify, the jury found each defendant guilty on all counts. The district court sentenced each defendant to serve between 324-408 months' imprisonment.
United States v. Mendez , 303 Fed.Appx. 323, 324 (6th Cir.2008).
As to equitable tolling, Movant cites his "little understanding of the charges against him (and continues to have little understanding)" and that ["h]e had no criminal history and no understanding of the American legal system". (Docket Entry No. 44, Movant's Brief at 5). Movant states that he has "a grade-school education, no ability to read or write at the time of his charges, and no ability to speak English." Id. at 5. According to Movant, he "effectively could not interact with the court system without the help of English-speaking individuals who could write on behalf of a functionally illiterate Spanish speaker. In order to find such an individual, however, Mr. Bencomo-Castillo first had to find someone he could trust, which is difficult in prison. He next had to pay that individual, which was equally difficult." Id. at 6.
Movant cites his three institutional transfers with his first two years in an Atlanta prison and thereafter the next two or three years in Ray Brook, New York, before his current facility in Pollock, Louisiana. In Ray Brook, Movant spent eight months in "the hole" for a disciplinary infraction, without access to assistance with legal ...