Opinion
02 Civ. 0298 (RMB)(DF)
July 9, 2003
REPORT AND RECOMMENDATION TO THE HONORABLE RICHARD M. BERMAN, U.S.D.J.
INTRODUCTION
On June 8, 2000, this Court (Berman, J.) accepted the guilty plea of pro se petitioner Dimas Ayala ("Petitioner") to two counts of "using a communication facility to facilitate the distribution of heroin" ( 21 U.S.C. § 843(b)). On October 27, 2000, Petitioner was sentenced by the Court to 96 months of imprisonment and one year of supervised release, and was ordered to pay a mandatory special assessment of $200.00. Seeking to vacate, set aside or correct his sentence, Petitioner now moves for a writ of habeas corpus under 28 U.S.C. § 2255.
BACKGROUND
Petitioner was arrested on January 19, 2000, and was subsequently indicted on a narcotics conspiracy charge, together with four other individuals. (See Resp. Opp. at 2; see also United States v. Manuel Pena, et al., 00 Cr. 36 (RMB); Dkt. No. 9 (superseding indictment).)
"Resp. Opp." refers to Respondent's letter in opposition to the petition, dated April 22, 2002. "Pet." refers to the petition for a writ of habeas corpus under 28 U.S.C. § 2255 (entitled "Motion To Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody"), dated November 25, 2001. "Pet. Br." refers to the Petitioner's memorandum in support of his petition, dated March 19, 2002. "Pet. Reply" refers to Petitioner's "Motion to Rebut Government's Opposition," dated May 31, 2002. "Plea Tr." refers to the transcript of Petitioner's plea allocution, held on June 8, 2000, attached as Ex. B to Resp. Opp. "Sentencing Tr." refers to the transcript of Petitioner's sentencing hearing, held on October 27, 2000, attached as Ex. C to Resp. Opp.
A. Plea Proceedings
By letter dated June 1, 2000, the Government offered Petitioner a plea agreement in which he would plead guilty to two counts of using a communication facility to distribute heroin, in violation of 21 U.S.C. § 843(b). (See Resp. Opp. at 2; Letter from Mary Jo White, United States Attorney, to Joseph V. Sorrentino, Esq., dated June 1, 2000, and countersigned by Petitioner and his counsel on June 6, 2000 ("Plea Agreement"), attached as Ex. A to Resp. Opp.) Petitioner accepted the proposed agreement, signing it on June 6, 2000, along with his counsel. (Plea Agreement at 5.)
Under the terms of the Plea Agreement, the parties stipulated that the expected range of Petitioner's prison sentence, under the United States Sentencing Guidelines, would be from 135 to 168 months. (See id. at 2; U.S.S.G. §§ 2D1.1(c)(1) and 3E1.1(a) and 3E1.1(b)(2).) The Plea Agreement also provided, however, that, "because the statutory maximum sentence of imprisonment for violating two counts of 21 U.S.C. § 843(d)(1), which is a total of 96 months, is lower than the stipulated Guidelines range of 135 to 168 months, the sentence to be imposed is 96 months' imprisonment pursuant to U.S.S.G. § 5G1.2(d)." (Plea Agreement at 2.)
The parties stipulated that neither a downward nor an upward departure from the stipulated sentence was warranted, and that they would not "seek such a departure or any adjustment not set forth herein," or "suggest that the Probation Department consider such a departure or adjustment, or suggest that the Court sua sponte consider such departure or adjustment." (Id. at 3.) In addition, Petitioner agreed that he would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, a sentence of 96 months' imprisonment." (Id.)
On June 8, 2000, before the Honorable Richard M. Berman, Petitioner pleaded guilty pursuant to the Plea Agreement to two counts of utilizing a communications facility to facilitate the distribution of heroin. Prior to accepting the plea, and in accordance with Rule 11 of the Federal Rules of Criminal Procedure, the Court reviewed the Plea Agreement with Petitioner. (Plea Tr. at 8-22.) In particular, the Court confirmed Petitioner's understanding of the maximum sentence he could face as a result of his guilty plea:
THE COURT: And do you understand that you are charged with that are called felonies, in summary, with two counts in the Information — and this is just a summary — of you utilizing a communications facility to facilitate the distribution of heroin, in violation of Title 21, United States Code, Section 843(b), each of which counts carries a maximum term of four years imprisonment? Do you understand that?
DEFENDANT: Yes, Sir.
(Id. at 12.)
THE COURT: And do you understand, Mr. Ayala, that the maximum possible penalty for each of the two counts to which you are pleading is four years imprisonment, a maximum fine of the greater of $30,000 or twice the gross pecuniary gain derived from the offense, maximum term of one year supervised release, and a mandatory $100 special assessment?
So, just to clarify, the total maximum term of imprisonment would therefore be eight years. Do you understand that?
DEFENDANT: Yes, Sir.
(Id. at 13.)
The Court went on to explain, in detail, the process of sentencing under the federal Sentencing Guidelines. Judge Berman explained that he would be the sole decision-maker regarding Petitioner's sentence and would not be bound by any prior agreements or estimates. (Id. at 15-16, 18-19.) The Court also explained the process of appeal, should the Petitioner be sentenced to a term exceeding the high end of the Guidelines sentencing range. (Id. at 16-17.)
Further, the Court confirmed that Petitioner understood that Petitioner would not be able to withdraw his guilty plea, even if he were unhappy with the sentence he received. (Id. at 17.)
Petitioner indicated throughout that he understood the consequences of his plea with respect to sentencing.
Finally, the prosecutor sought to confirm that Petitioner specifically understood the "waiver of appeal" provision contained in the Plea Agreement:
PROSECUTOR: I just wanted to make sure that Mr. Ayala understood that, pursuant to the agreement between him and the government, Mr. Ayala has agreed that he will neither appeal nor otherwise litigate a sentence of 96 months imprisonment, and that the government will not appeal any sentence of 96 months imprisonment.
DEFENSE: Judge, that is contained in the plea agreement from the government. I believe [the prosecutor] is referring to the third page, last paragraph, and as I said, we have definitely gone over this plea agreement in its entirety, and I have gone over that provision with Mr. Ayala. I understand it. I believe he understands it, and we are in agreement.
(Plea Tr. at 26.)
B. Sentencing
At a hearing held on October 27, 2000, Petitioner appeared before Judge Berman for sentencing. The presentence report, prepared by the Probation Office, determined that Petitioner's base offense level was 36 because Petitioner was involved in distributing approximately 20 kilograms of heroin, and that his total offense level, after a three-level reduction for acceptance of responsibility, was 33. (Resp. Opp. at 4; Sentencing Tr. at 5.) The presentence report further determined that Petitioner's Guidelines sentencing range was 135 to 168 months and that the statutory maximum terms of imprisonment of 48 months on Count One and 48 months on Count Two were required to run consecutively pursuant to U.S.S.G. § 5G1.2(d), thereby resulting in a sentence calculation of 96 months. (Resp. Opp. at 4-5; Sentencing Tr. at 5-6; 21 U.S.C. § 843(b).) Petitioner did not file any objections to the report before sentencing. (Resp. Opp. at 5.)
Before imposing sentence, the Court asked Petitioner and his counsel whether they had discussed the presentence report, and both stated that they had. (Id.; Sentencing Tr. at 3-4.) The Court also asked whether either Petitioner or Petitioner's counsel had any objections to the presentence report, and both replied that they did not. (Resp. Opp. at 5; Sentencing Tr. at 5-6.)
The Court then sentenced Petitioner to 96 months' imprisonment, to be followed by a one year term of supervised release. (Sentencing Tr. at 6-8.) The Court also imposed a mandatory special assessment. (Id. at 7.) After imposing sentence, the Court advised Petitioner of his "right, subject, of course, to the terms and conditions of the plea agreement, to appeal this sentence within ten days of entry of judgment." (Id. at 10.) The judgment was entered on October 30, 2000. (Resp. Opp. at Ex. D.) Petitioner did not file an appeal. He is currently incarcerated at the Allenwood Federal Prison Camp in Montgomery, Pennsylvania.
C. Section 2255 Petition
On November 25, 2001, Petitioner, proceeding pro se, filed the instant petition, seeking to challenge his conviction and sentence. The petition of a pro se litigant should be "liberally construed in his favor." Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)); see also Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983) (where a petitioner is proceeding pro se and "lack[s] expertise," the Court "should review [his] habeas petition with a lenient eye"); Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) ("We see no reason why the general rule [affording liberal construction of pro se pleadings] should not apply to pro se motions filed pursuant to section 2255."). Construed liberally in conjunction with Petitioner's additional submissions, the petition here appears to contend: (1) that the Court should have imposed a shorter prison sentence because (a) Petitioner's two sentences should have run concurrently, instead of consecutively, (b) Petitioner was entitled to a two-level reduction for his "minor role" in the underlying crime, and (c) Petitioner was entitled to a downward departure for his efforts at post-conviction rehabilitation; and (2) that Petitioner was denied effective assistance of counsel at the time of his sentencing because of his counsel's failure to argue that Petitioner was entitled to a shorter sentence. (Pet. at ¶ 12; Pet. Br. at 2-7; Pet. Reply at 1-8.)
Although the filing date listed on the docket is January 25, 2002, where pro se incarcerated petitioners are concerned, it is standard practice for this Court to treat the date the papers were handed over to prison officials for forwarding to the Court as the date of filing. See, e.g., Then v. U.S., 126 F. Supp.2d 727, 728 n. 1 (S.D.N.Y. 2001); Collado Diaz v. U.S., No. 97 Civ. 7059 (PKL), No. 95 Cr. 43 (PKL), 1999 WL 252478 at *1 n. 2 (S.D.N.Y. April 28, 1999). That date is generally accepted to be the date on the petition itself, here, November 25, 2001. See Collado Diaz, 1999 WL 252478 (where Court took the date of the petitioner's signature on the petition as the date of filing); Then, 126 F. Supp.2d at 728 n. 1 (Court treated the date on the petition as the date of filing).
To the extent Petitioner suggests in his briefs that he is entitled to resentencing because of rehabilitation efforts made subsequent to his sentencing, he does not state a cognizable claim. See Quesada Mosquera v. U.S., 243 F.3d 685, 686 (2d Cir. 2001) (Section 3582(c) only allows a court to modify a term of imprisonment where the sentencing range under which that petition was initially sentenced has subsequently been lowered by the Sentencing Commission). "[N]o one may have post-sentencing rehabilitation considered upon resentencing. Id.
Respondent argues that the petition should be dismissed because: (1) the petition is untimely under the governing statute of limitations; (2) Petitioner's claims are barred because he did not raise them on direct appeal; (3) Petitioner waived his right, through the Plea Agreement, to challenge his sentence; and (4) Petitioner's claims are not cognizable in a Section 2255 proceeding. (Resp. Opp. at 5-9.) Respondent further argues that, in any event, Petitioner's claims are without merit. (Id. at 9-12.) For the reasons set forth below, I recommend that the petition be dismissed in its entirety.
I further recommend that the Court deny as moot Petitioner's motion for appointment of counsel, dated April 5, 2002, and also deny as moot and/or futile Petitioner's outstanding motions seeking enlargements of time and/or an opportunity to amend the petition to include additional materials not previously submitted.
DISCUSSION I. The Petition Is Untimely.
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a petition under Section 2255 is subject to a one-year statute of limitations, which begins to run on the date that the petitioner's conviction becomes final. Wims v. U.S., 225 F.3d 186, 189 (2d Cir. 2000). Respondent asserts that the petition in this case should be dismissed as untimely because Petitioner's judgment of conviction became final on November 9, 2000, and the petition was filed more than one year later, on November 25, 2001. (See Resp. Opp. at 6.)
The Second Circuit has held that "a district court may grant an extension of time to file a motion pursuant to [S]ection 2255 only if (1) the moving party requests the extension upon or after filing an actual [S]ection 2255 motion, and (2) 'rare and exceptional' circumstances warrant equitably tolling the limitations period." Green v. U.S., 260 F.3d 78, 82-83 (2d Cir. 2001). "To merit application of equitable tolling, the petitioner must demonstrate that he acted with reasonable diligence during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances beyond his control prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (internal citations and quotations omitted), cert. denied, 535 U.S. 1017 (2002).
In order to show that extraordinary circumstances prevented a timely filing of a Section 2255 petition, the petitioner "must demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances." Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) (internal quotations omitted), cert. denied, 536 U.S. 925 (2002). It follows that if, despite any extraordinary circumstances, the petitioner did not exercise reasonable diligence in attempting to file on time, then "the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing." Id. (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)).
Here, after receiving Respondent's opposition, in which Respondent explained its position regarding the statute of limitations, Petitioner filed a motion formally requesting an enlargement of the time in which the petition could be filed. (See undated "Motion for Enlargement of Time," attached to Pet. Reply.) Yet even if Petitioner has thereby met the first requirement set forth in Green for expanding the limitations period, see supra at 7-8, he has not met the second requirement, in that he has not demonstrated that equitable tolling is warranted because of "rare and exceptional" circumstances.
At the same time, Petitioner also filed a motion seeking (1) an enlargement of time to file a brief in support of the petition, and (2) a copy of the plea and sentencing transcripts in this case. (See "Motion for Enlargement of Time and a Copy of the Sentencing Transcript, dated February 15, 2002, attached to Pet. Reply.) To the extent that motion sought additional time to file a supporting brief, it should be denied as moot, as Petitioner submitted such a brief on March 19, 2002 ("Pet. Br.") which the Court accepted for filing. To the extent that the motion sought a copy of the plea and sentencing transcripts, it is also now moot because Petitioner was apparently provided with those transcripts by Respondent. (See Resp. Opp., Exs. B and C.) The Court also notes that Petitioner was not prejudiced by receiving those transcripts after filing his supporting brief, because Petitioner was afforded a full opportunity to submit a reply brief with respect to his petition. (See Order dated May 31, 2002 (Mem. Endors.), granting Petitioner's request for a 30-day enlargement of time to serve and file reply papers, which Petitioner stated would "suffice with or without the receiving of the stated documents.")
Petitioner explains that he delayed in filing the petition because he was "repeatedly attempt[ing] to obtain various documents in reference to this case," without success. (Pet. Reply at 1.) Petitioner further argues that "without having the requested documents, it is almost impossible to file an appeal . . . which this Court would deem to have merit." (Id. at 1-2.) Petitioner explains that, despite his diligence in attempting to obtain these documents, he finally filed his petition without them because he "was left with no choice." (Id. at 2.) This is insufficient to demonstrate that extraordinary circumstances prevented Petitioner from filing his petition within the statutory limitations period, even with the exercise of reasonable diligence. Smaldone v. Senkowski, 273 F.3d at 138. Although Plaintiff contends that he lacked, and still lacks, "essential legal documents" to assist the Court in ruling on his petition (see Motion for Amendment, cited in n. 5, supra), he offers no explanation as to why his petition, in the form in which it was eventually filed, could not have been filed earlier.
In his motion for an enlargement of time to file his supporting brief (see n. 4, supra), Petitioner similarly argued that the additional time was necessary "for the purpose of obtaining essential documentation." At the time he filed his petition, Petitioner also moved for "an opportunity to [a]mend" the petition (see Motion for Amendment, dated November 19, 2001, attached to Pet.), apparently so that, at a later date, he would be able to submit to the Court "essential legal documents" that he was then attempting to obtain.
Moreover, the legal arguments raised in the petition do not appear to rely on — or to require the use of — whatever legal documents Petitioner was seeking. Therefore, it cannot be said Petitioner has satisfied his burden of showing that, as a result of exceptional circumstances, he could not have advanced his arguments in a timely fashion. See, e.g., Padilla v. U.S., 02 Civ. 1142 (CSH), 94 Cr. 313 (CSH), 2002 WL 31571733, at *4 (S.D.N.Y. Nov. 19, 2002) ("Even if [Petitioner] did not have all the necessary materials or experienced a delay in obtaining them, those are not extraordinary circumstances warranting equitable tolling"); Davis v. McCoy, 00 Civ. 1681, 2000 WL 973752, *2 (S.D.N.Y. July 14, 2000) (lack of access to necessary court papers for two years did not constitute an extraordinary circumstance).
On this record, I recommend that the petition be dismissed as untimely, and that, in light of the above-cited authority, Petitioner's motion seeking an enlargement of time to file the petition, as well as his motion seeking an opportunity to amend the petition to add further documentation, be denied as futile.
II. Even If Petitioner's Claims Were Not Barred by the Statute of Limitations, They Would Be Subject To Dismissal. A. Petitioner Has Waived the Right To Challenge the Length of His Sentence.Respondent argues that the petition should be denied in any event because it merely challenges the length of Petitioner's 96-month sentence, and, in his Plea Agreement, Petitioner agreed to waive his right to raise a Section 2255 challenge to just such a sentence. (See Resp. Mem. at 7.) Under the unambiguous terms of the Plea Agreement, Petitioner did waive his right to appeal — or to "otherwise litigate" under Section 2255 — "a sentence of 96 months' imprisonment" (Plea Agreement at 3), which was precisely the sentence imposed by the Court.
A defendant's "knowing and voluntary waiver of his right to appeal a sentence within an agreed upon guideline range is enforceable." United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998); see also United States v. Difeaux, 163 F.3d 725, 728 (2d Cir. 1998) (defendant who "knowingly and voluntarily enters into a plea agreement containing a waiver of appeal rights and obtains the benefits of such an agreement is bound by the waiver provision") (citation omitted).
Equally enforceable is a defendant's knowing and voluntary waiver of his right to challenge a sentence collaterally, under Section 2255. See e.g., Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001) (upholding defendant's knowing and voluntary waiver of his right to file a § 2255 motion); Pfeiffer v. United States, 234 F.3d 1262 (Table), Nos. 97-2343, 97-2468, 99-2755, 96-2603, 2000 WL 1655232, at *2 (2d Cir. Nov. 3, 2000) ("We have held that waivers of the right to appeal or collaterally attack a sentence are enforceable as long as the waiver was made knowingly and voluntarily."); Moore v. United States, No. 00 Civ. 4560 (AJP), 2001 WL 253432, at *10 (S.D.N.Y. Mar. 15, 2001) ("[T]his Court joins all of the other district court decisions in this Circuit, the decisions of other Circuit courts, and the unpublished Second Circuit decision, and holds that § 2255 waivers are generally enforceable.").
This Court, however, does not automatically enforce Section 2255 waivers in the face of claims of ineffective assistance of counsel, as such claims "may call into question the very legitimacy of the § 2255 waivers." Paulino v. United States, No. 01 Civ. 1174 (LBS), 2001 WL 630486, at *2 (S.D.N.Y. June 6, 2001). While a Section 2255 waiver in a plea agreement bars a claim of ineffectiveness during later sentencing proceedings, see United States v. Djelevic, 161 F.3d at 107, it does not bar a claim that the plea agreement itself was entered into without effective assistance of counsel, United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001) (citing Djelevic, 161 F.3d at 107); accord Paulino, 2001 WL 630486, at *2; Moore, 2001 WL 253432, at *17. As the Second Circuit has held, "'the very product of the alleged ineffectiveness' cannot fairly be used to bar a claim of ineffective assistance of counsel." Hernandez, 242 F.3d at 114 (citation omitted).
Here, Petitioner does not assert that his counsel was ineffective during the plea phase of his case, but only at the time of sentencing. (Pet. Mem. at 4.) Further, at no time does Petitioner contend that his Section 2255 waiver was anything other than knowing and voluntary. Petitioner does not argue that he was unaware of, or did not understand, the waiver provision, or that the provision, for any other reason, should be held unenforceable. Under these circumstances, Petitioner should be found to have waived his right to challenge his sentence in this proceeding.
In addition, with respect to Petitioner's ineffective assistance of counsel claim, "despite his effort to dress up his claim as a violation of the Sixth Amendment, [Petitioner] in reality is challenging the correctness of his sentence under the Sentencing Guidelines, and is therefore barred by the plain language of the waiver contained in his plea agreement with the government." Djelevic, 161 F.3d at 106. As the Second Circuit has stated, "if we were to allow a claim of ineffective assistance of counsel at sentencing as a means of circumventing plain language in a waiver agreement, the waiver of appeal provision would be rendered meaningless." Id.
For these reasons, the Section 2255 waiver that Petitioner accepted as part of the Plea Agreement should be held enforceable, and any claim challenging the length of his sentence — including any such challenge couched as a claim that counsel rendered ineffective assistance at the time of sentencing — should be dismissed as waived.
B. Petitioner's Claims Are Procedurally Barred.
If, contrary to the above analysis, the "appeal waiver" provision in the Plea Agreement were held to be unenforceable, then Petitioner, in any event, would be procedurally barred from raising his claims in this Section 2255 proceeding, without first having raised them on direct appeal.
Claims that could have been, but were not raised on direct appeal are procedurally defaulted and therefore barred from review, absent a showing of "cause and actual prejudice," Reed v. Farley, 512 U.S. 339, 355 (1994); accord United States v. Canady, 126 F.3d 352, 359-60 (2d Cir. 1997), or that a failure to review such claims would result in a fundamental miscarriage of justice, Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999). This rule applies where the defendant fails to appeal at all, see United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995) ("cause and prejudice" requirement applies where there is a "complete failure to take a direct appeal"), which is the situation presented here (see Pet. ¶¶ 8, 11(e)).
Generally, "cause" for a procedural default is established when "some objective factor external to the defense" impeded the petitioner's efforts to comply with procedural requirements. Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Ayuso v. Artuz, No. 99 Civ. 12015 (AGS) (JCF), 2001 WL 246437, at *8 (S.D.N. Y. Mar. 7, 2001). More specifically, cause for a default exists where a petitioner can show that (1) "the factual or legal basis for a claim was not reasonably available to counsel," (2) "'some interference by [government] officials' made compliance [with the procedural rule] impracticable," or (3) "the procedural default is the result of ineffective assistance of counsel." Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (citation omitted); see also Borbon-Vasquez v. U.S., No. 02 Civ. 8670(RWS), 2003 WL 1948806, at *5 (S.D.N.Y. Apr. 23, 2003). "Prejudice" requires Petitioner to demonstrate that the alleged constitutional error worked to Petitioner's "actual and substantial disadvantage." U.S. v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). If a petitioner cannot show cause and prejudice, he may nonetheless overcome the procedural bar to the Court's review of his claim if he can show that applying the bar would result in a "fundamental miscarriage of justice." This, however, requires a showing of "actual innocence," which "means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).
Petitioner's only argument as to why he did not raise his claims on direct appeal is that he was "waiting for documentation in reference to the charge at hand, as well as material that would make [his] Appeal have reasonable [m]erit." As he was purportedly waiting for information that he had requested from the government, Petitioner may thus be contending that "interference" by government actors made it impracticable for him to file an appeal. See Bossett, 41 F.3d at 829. Petitioner's legal claims, however, are straightforward, in that Petitioner simply challenges his sentence as excessive under the law and contends that counsel failed to raise certain arguments on his behalf at the time of his sentencing. Petitioner has made no showing that he could not have raised these claims on direct appeal in the absence of the documents he was seeking, and, indeed, the very fact that Petitioner has raised the claims now, without using those documents, demonstrates that the claims could have been raised to the Court of Appeals.
It appears that, in explaining why he did not file an appeal, Petitioner may be viewing an "appeal" as synonymous with a Section 2255 petition. (See, e.g., Pet. Reply at 1-2 (seemingly referring to the instant petition as an "appeal").) Nonetheless, construing the petition liberally, the Court assumes that Petitioner's reasons for not filing a direct appeal are the same as his reasons for not filing his habeas petition within the limitations period.
As Petitioner cannot show "cause" for his procedural default, it is unnecessary for the Court to determine whether he can show "prejudice." See Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985) ("Since a petitioner who has procedurally defaulted . . . must show both cause and prejudice in order to obtain federal habeas review, we need not, in light of our conclusion that there was no showing of cause, reach the question of whether or not [petitioner] showed prejudice."); accord Black v. U.S., No. 98 Civ. 2605, 2000 WL 1871737, at *2 (S.D.N.Y. Dec. 20, 2000). Petitioner also has not demonstrated actual innocence, nor can he, given his apparently voluntary guilty plea. Accordingly, Petitioner's claims should be dismissed as procedurally barred.
CONCLUSION
For all of the foregoing reasons, I recommend that:
(1) Petitioner's petition for a writ of habeas corpus be dismissed in its entirety;
(2) Petitioner's motion dated February 15, 2002, seeking (a) an enlargement of time to file a memorandum of law in support of the petition and (b) a copy of the plea and sentencing transcripts, be denied as moot;
(3) Petitioner's undated motion for an enlargement of time to file the petition, as well as his motion dated November 19, 2001, seeking a future opportunity to amend the petition, be denied as futile; and (4) Petitioner's motion for appointment of counsel, dated April 5, 2002, be denied as moot.
Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because Petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, United States Courthouse, 500 Pearl Street, Room 201, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Berman. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).