Opinion
04 Civ. 10207 (RLC).
August 31, 2006
PETER ENRIQUE QUIJANO Quijano Ennis, P.C. New York, New York, Attorney for Petitioner.
MICHAEL J. GARCIA United States Attorney New York, New York, DAVID RASKIN Of Counsel, Attorneys for Respondent.
OPINION
Fatmir Ahmeti ("Ahmeti") petitions pursuant to 28 U.S.C. § 2255 ("§ 2255") to vacate his conviction and sentence. Ahmeti was charged with conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371, committing mail fraud, in violation of 18 U.S.C. § 1341, and of making false statements to federal agents after his arrest, in violation of 18 U.S.C. § 1001. On May 5, 2003, after a five day jury trial, Ahmeti was convicted on all three counts. On June 10, 2003, Ahmeti was sentenced to 10 months imprisonment, to be followed by two years of supervised release. Ahmeti was also ordered to pay $10,015 in restitution.
On December 5, 2004, Ahmeti, while still incarcerated, submitted a pro se § 2255 petition alleging that his trial counsel failed to provide effective assistance, that he was denied due process of law, that he was unfairly sentenced and that his continued confinement after the length of his sentence had run its course is unconstitutional. In response, the government submitted a letter brief arguing that Ahmeti's petition was time barred. In the court's July 5, 2006 endorsement Ahmeti was ordered to show cause why his petition was not time barred, and Peter Enrique Quijano, Esq. ("Quijano") was appointed to assist Ahmeti. In a letter dated July 25, 2006, Quijano submitted his findings to the court (the "Quijano Letter").
Although the court did not receive Ahmeti's petition until December 10, 2004, the petition is considered "filed" on the day it was received by prison authorities. See Houston v. Lack, 487 U.S. 266 (1988) (stating the prison mailbox rule). For the purposes of this motion, we give the petitioner the benefit of the doubt and assume that the petition was mailed on the same day it was completed, December 5, 2004. Docket at 7.
DISCUSSION
28 U.S.C. § 2255 provides a mechanism for prisoners to collaterally attack their sentences "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence is in excess of the maximum authorized by law, or is otherwise subject to collateral attack. . . ." The Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA") added to 28 U.S.C. § 2255 a statute of limitations. That provision states:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —
(1) the date on which the judgment of conviction becomes final;
(2) 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;
(3) 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
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Ahmeti's conviction was entered on June 16, 2003. Ahmeti had ten days from the entry of his conviction to file an appeal.See Rule 4(b), Fed.R.App.P. Ahmeti did not file an appeal. "[F]or the purposes of § 2255 motions, an unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires." Moshier v. U.S., 402 F.3d 116 (2d Cir. 1999). Thus, Ahmeti's conviction became final on June 26, 2003. Ahmeti's § 2255 petition is dated December 5, 2004, more than 17 months after his conviction became final and well beyond the AEDPA's one year statute of limitations.
Accordingly, unless Ahmeti can show that the statute of limitations was tolled and accrued at some later date, his § 2255 petition is time barred. Ahmeti, with the assistance of his court-appointed counsel, is unable to posit an explanation for the delay in filing that would fall into one of the statutory exceptions noted above. Consequently, it is now clear that Ahmeti's petition is time barred.
"Based upon my review of the petition and after conferring with the petitioner, it does not appear that that there is any basis for, or any claim that: 1) the government created an impediment to making the motion; 2) that the petitioner is raising or could raise a right which has been recognized by the Supreme Court on a date subsequent to June 26, 2003, and which has been made retroactively applicable to cases on collateral review; or, 3) that petitioner, on a date subsequent to June 26, 2003 and through an exercise of due diligence discovered facts supporting a viable claim." Quijano Letter at p. 4.
Aside from the exceptions provided by the statute, there are additional judicially crafted rules that can serve to toll the statue of limitations. As applied to § 2255 claims, the doctrine of equitable tolling permits a court to set aside the statue of limitations, but only in the most extraordinary circumstances.Smith v. McGinnus, 208 F.3d 13, 17 (2d. Cir 2000) (holding that the AEDPA's one year filing period is not a jurisdictional bar, but a statute of limitations and is therefore subject to equitable tolling). However, the only explanation that Ahmeti provides for failure to submit his petition at an earlier time is that as a pro se plaintiff, he was unaware of the filing requirement. This is not an extraordinary circumstance, as "[i]gnorance of legal rights does not toll a statute of limitations." Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991).
Although Ahmeti may have a cognizable claim in that he has been incarcerated well past the term of his sentence, the petitioner has failed to satisfy the rules that the Congress has created for those § 2255 claims. The court is therefore precluded from even considering the merits of the claims raised by the petitioner. Petitioner may, however, be able to raise this claim via a petition filed pursuant to 28 U.S.C. § 2241. Accordingly, Quijano is hereby instructed to investigate whether such a claim related to the execution of Ahmeti's sentence exists and, if so, to assist Ahmeti in filing a § 2241 petition.
CONCLUSION
For the reasons set forth above, Ahmeti's § 2255 petition is hereby DENIED.
IT IS SO ORDERED