Jesus Alberto Mejia Herrera v. Alexander Toth

RESUBMIT DLD-187 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4167
___________
JESUS ALBERTO MEJIA HERRERA,
Appellant
v.
ALEXANDER TOTH; JOSE ALMANZA; GRAY TED GANJI, Jr.; ALPHONSO G.
ANDREWS, JR.; INSPECTOR PATRICK WALLACE; AUSTIN LESCOTT; JUDE
MATHEW; CORPORAL ANDREW NICHOLS; CORPORAL SYLVESTER MASON
____________________________________
On Appeal from the
District Court of the Virgin Islands
(D.C. Civil No. 08-cv-00058)
District Judge: Honorable Raymond L. Finch
____________________________________
Submitted for a Decision on the Issuance of a Certificate of Appealability and for
Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
December 6, 2010
Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges
(Opinion filed: January 6, 2011)
_________
OPINION
_________
PER CURIAM
Jesus Alberto Mejia Herrera appeals from an order of the District Court of the
Virgin Islands, which dismissed his complaint. We will affirm, albeit on a different
basis.

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Herrera, who is apparently a citizen of Colombia, filed in the District Court a
document titled, “Civil Action for Compensatory, Nominal or Punitive Damage to
Remedy from Violations of the Plaintiff’s IV, V, and VI Amendment Rights and to the
Right of the Vienna Convention on Consular Relationship.” In the document, he sought
damages due to alleged violations of his constitutional rights, and sought compensation
due to alleged violations of the Vienna Convention on Consular Relationships. Herrera
claimed the violations occurred in connection with events concerning his arrest and
convictions for conspiracy to import marijuana in violation of 21 U.S.C. §§ 952(a),
960(b)(1), and 963; and for possession of a controlled substance aboard a vessel subject
to the jurisdiction of the United States, in violation of 46 U.S.C. § 1903, and 18 U.S.C.
§ 2. Herrera sought to bring his claims pursuant to 42 U.S.C. § 19831 and the Alien Tort
Statute, 28 U.S.C. § 1350.2
The District Court construed Herrera’s filing as a motion to vacate, set aside, or
1 It appears that at least some of the defendants named in Herrera’s complaint are
federal officials. An action filed against federal officials alleging a violation of
constitutional rights is properly brought under Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971), while actions against state officials
are properly brought pursuant to § 1983. Lora-Pena v. F.B.I., 529 F.3d 503, 505 n.1 (3d
Cir. 2008). For ease of reference, we will simply refer to Herrera’s claims of this type as
§ 1983 claims.
2 Specifically, Herrera sought to raise four claims: (1) the District Court lacked
subject matter jurisdiction over his criminal case; (2) violation of his 4th, 5th and 6th
Amendment rights (this appears to relate to his claim that he was denied a lawyer during
interrogation in St. Kitts); (3) arbitrary extradition; and (4) violation of the Vienna
Convention (he states that he was not given an opportunity to contact the Colombian
consulate even though he requested to do so).

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correct his sentence, pursuant to 28 U.S.C. § 2255. As Herrera had previously filed a
§ 2255 motion, the District Court dismissed the filing as an unauthorized second or
successive application for habeas relief. See 28 U.S.C. §§ 2244(b)(3) and 2255. Herrera
filed a timely notice of appeal. On May 26, 2010, we stayed the appeal pending a
decision in McPherson v. United States, C.A. No. 08-3757, because similar issues were
being considered in that case. After McPherson was decided; see McPherson v. United
States, No. 08-3757, 2010 WL 3446879 (3d Cir. Sept. 2, 2010), we asked the parties in
this appeal to comment regarding the effect, if any, of the McPherson opinion on this
appeal; specifically, whether Herrera’s claims are barred by the statute of limitations.
The Government has responded; Herrera has not.3
We disagree with the District Court’s characterization of Herrera’s filing as a
§ 2255 motion. Many of the claims raised by Herrera could have been brought on direct
appeal or in a § 2255 motion, as a means of challenging his conviction. However, the
complaint Herrera filed in the District Court explicitly asked for compensatory, nominal,
or punitive damages, not release from confinement. See Preiser v. Rodriguez, 411 U.S.
475, 494 (1973) (request for immediate or speedier release from confinement is core of
habeas corpus); Copus v. City of Edgerton, 96 F.3d 1038 (7th Cir. 1996) (per curiam)
(district court not authorized to convert a § 1983 action into § 2254 action because of
3 The Federal Inmate Locator indicates that Herrera was released from prison on
August 3, 2010. The Court order was sent to Herrera’s address in Colombia.

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disadvantages to litigant). Herrera argues in his complaint and on appeal here that the
main claim he wants to bring is his Vienna Convention claim, and that the other claims
are simply made to bolster that claim. See Complaint, at 27-28; Brief, at 14-15.4 We
thus find that the District Court should have treated the filing as a civil rights complaint.
Nevertheless, we find that the District Court properly dismissed the complaint.
The facts, claims, and legal issues in this case are very similar to those we considered in
McPherson. In that case, we determined, without deciding whether the Vienna
Convention confers an individual right enforceable in domestic courts, that McPherson’s
complaint was barred by the statute of limitations. McPherson, 2010 WL 3446879, at *1.
The same holds true here. Herrera’s claims accrued when he knew or should have
known of the violations involved. Because the incidents described in Herrera’s
complaint involve his arrest and conviction, he was aware of the problems as early as his
arrest in February of 1993, and no later than May 6, 1993, the date of his conviction. As
we noted in McPherson, a claim brought pursuant to 42 U.S.C. § 1983 is subject to the
same statute of limitations as a personal injury claim in the state where the claim arose.
McPherson, 2010 WL 3446879, at *1, citing Wallace v. Kato, 549 U.S. 384, 387 (2007)
and Lake v. Arnold, 232 F.3d 360, 368 (3d Cir. 2000). Herrera’s arrest took place in the
Virgin Islands, and thus the applicable statute of limitations is the Virgin Islands’ statute
4 No briefing schedule was issued in this case, as the case was initially listed for a
decision on the issuance of a certificate of appealability, and was later listed for possible
summary action. Nonetheless, Herrera filed a “Brief” in November 2008, which we will
consider in conjunction with the Government’s response.

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of limitations for personal injury actions, which is two years. V.I. Code Ann. Tit. 5,
§ 31(5)(A). Herrera’s claims were thus due, at the latest, in May of 1995.
McPherson and Herrera also both sought to raise claims pursuant to the Alien Tort
Statute. We noted in McPherson that a ten-year limitations period extends to such
claims. Herrera’s complaint, filed in 2008, was several years too late. We further agree
with the Government that even if equitable tolling could be applied, it is highly unlikely
that Herrera could “show that he has exercised reasonable diligence in pursuing or
investigating his claim” in order to warrant equitable tolling of the limitation periods.
Government Response at 4; see McAleese v.Brennan,483 F.3d 206, 219 (3d Cir. 2007)
(person seeking equitable tolling must show he diligently pursued rights and
extraordinary circumstances stood in his way).
As Herrera’s complaint was untimely, the District Court should have dismissed the
complaint for that reason. See McPherson, 2010 WL 3446879, at *4 (district court may
dismiss complaint sua sponte where statute-of-limitations defense is clear from face of
complaint); Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006). We will therefore
affirm the District Court’s judgment. Kabakjian v. United States, 267 F.3d 208, 213 (3d
Cir. 2001) (appellate court may affirm district court on grounds different from those
relied on by district court).5
5 As Herrera’s district court filing was not a § 2255 motion, we deny a certificate
of appealability as unnecessary.

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