Opinion
05 Civ. 10342 (RPP), 97 Cr. 1041 (RPP).
September 14, 2006
OPINION AND ORDER
On July 25, 2006, Petitioner, Gioacchino Acquista, moved for reconsideration of this Court's opinion and order dated July 17, 2006, on the grounds that his counsel never explained "the ramification [of the Plea Agreement] to him, or [sic] signing what he did not understand"; that he "never agreed, and never understood, that he was admitting to leadership role"; and that his "admission was a result of coercion from counsel." (Recons. Mot. 1-2.) As to the Court's finding that his petition was untimely under the AEDPA, 28 U.S.C. § 2255, Petitioner requests equitable tolling because he only discovered a few months prior to filing his § 2255 petition — by reading Halbert v. Michigan, 545 U.S. 605 (2005) — that his plea agreement did not forbid him to appeal his sentence based on ineffective assistance of counsel. (Id. at 3.) Petitioner alleges that he "genuinely believed counsel" when "counsel advised [him] that he could not challenge his sentence ever in any court of law because he had forever waived such a right." (Id.) At the sentencing, the Court advised Petitioner of his right to appeal and how to file a notice of appeal without using his lawyer. (Sentencing Tr. 8:20-25, July 22, 1998.)
In his December 12, 2005 petition pursuant to 28 U.S.C. § 2255, and in his motion for modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2) — both seeking a modification of his sentence of 168 months to 108 months — Petitioner did not raise any claim of ineffective assistance of counsel. Only now, in his Motion for Reconsideration, does Petitioner claim that 1) having a conflict of interest, counsel failed to advise him of his right to challenge his sentence based on in effective assistance of counsel, 2) he did not understand that he was admitting in the Plea Agreement to being an organizer or leader in a conspiracy of five or more people, and 3) he was coerced by counsel into signing the plea agreement.
Petitioner's Motion for Reconsideration fails for three independent reasons: 1) Petitioner does not meet the standard for a Motion for Reconsideration, failing to show that this Court overlooked any matters that were before it on the underlying § 2255 petition or the § 3582 motion; 2) Petitioner's new claims of ineffective assistance of counsel are time-barred since he is ineligible for equitable tolling; and 3) Petitioner's new claims lack substantive merit.
"The only proper ground on which a party may move to reargue an unambiguous order is that the court overlooked `matters or controlling decisions' which, had they been considered, might reasonably have altered the result reached by the court."Morse/Diesel, Inc. v. Fidelity and Deposit Co., 768 F.Supp. 115, 116 (S.D.N.Y. 1991) (citations omitted). Petitioner may not "advance new facts, issues or arguments not previously presented to the Court." Id. "The decision to grant or deny the motion is within the sound discretion of the district court." Dellefave v. Access Temporaries, Inc., 2001 WL 286771, 1 (S.D.N.Y. 2001). Petitioner has not shown that, in its July 17, 2006 Opinion, this Court overlooked any matters that were before it on the underlying § 2255 petition or the § 3582 motion. See id. Nor does his Motion for Reconsideration point to matters that might reasonably be expected to alter the conclusion of the Court. See Shrader v. CST Trans., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Accordingly, his Motion for Reconsideration should be dismissed. See e.g., Dellefave, 2001 WL 286771 at *1 ("Local Rule 6.3 is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court.").
Petitioner attempts to evade the statute of limitations on his habeas claims by arguing that his counsel was ineffective with respect to the plea. Since Petitioner did not bring his habeas suit for over seven years — § 2255 requires it to be brought within one year — his claims are time-barred unless he qualifies for equitable tolling. See Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001). Equitable tolling only applies when "extraordinary circumstances" prevent the filing of a timely petition. Id. at 82 (holding that § 2255 does not create a jurisdictional bar, but only a statute of limitations that can be equitably tolled). Petitioner must show reasonable diligence throughout the period he wishes to toll. See Doe v. Menifee, 391 F.3d 147 (2d Cir. 2003). Petitioner does not claim that equitable tolling should apply because of newly discovered evidence; instead, Petitioner claims it should apply because he only recently discovered case law permitting him to challenge his sentence based on ineffective assistance of counsel. (Recons. Mot. 3.) Since Petitioner has not shown reasonable diligence in pursuing his claims over the past seven years, equitable tolling is not appropriate in this case, and Petitioner's claims of ineffective assistance of counsel under § 2255 are time-barred. Nevertheless, because Petitioner is proceeding pro se, the Court will review Petitioner's new allegations. See the computation leading to a sentencing range of 168 to 200 months, and it recommended a sentence of 168 months. Petitioner did not dissent from his counsel's statement that he agreed with the recommended sentence of 168 months.
Furthermore, at the time of sentence, the Court stated that the base level for Petitioner's offense was 34 (for more than 15 but less than 50 kilograms of cocaine) "[a]nd because the defendant was an organizer and leader of the activity and it involved more than five participants, that offense level has to be increased four levels pursuant to guideline 3B1.1(a)" before applying the three-level reduction for acceptance of responsibility. (Id. at 5.) Again, Petitioner did not state that he was not an organizer or leader of the conspiracy to distribute more than 15 kilograms of cocaine, even though he was given an opportunity to address the Court at sentencing.
In view of this record of multiple occasions at which Petitioner was advised of the impact of the organizer or leader enhancement, Petitioner's reconsideration arguments that he did not understand what he was signing; that he was coerced; and that he did not have effective assistance of counsel is inconsistent with the record and cannot reasonably be expected to alter the decision of the Court of July 17, 2006.
The Defendant agreed not to appeal or litigate under 28 U.S.C. § 2255 any sentence within the stipulated guideline range of 168 — 208 months. Defendant's sentence was at the lower limit of the stipulated guideline range. Accordingly, that provision of the Plea Agreement is binding on Defendant. See United States v. Fisher, 232 F.3d 301, 303 (2d Cir. 2000); United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993); see also United States v. Morgan, 406 F.3d 135 (2d Cir. 2005).2
On this record, Petitioner cannot sustain a claim for ineffective assistance of counsel. The Motion for Reconsideration is denied.
IT IS SO ORDERED.