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finding that a petitioner's "conclusory" allegations regarding his various physical ailments did "not provide adequate proof that [his] alleged illnesses rendered him unable to file his motion in a timely manner" particularly because the petitioner had not "specif[ied] the exact amount of time that he was incapacitated, nor detail[ed] exactly how being confined to a wheelchair [had] prevented him from filing his motion"
Summary of this case from Quinn v. United StatesOpinion
01 Civ. 7522 (JFK)
May 2, 2002
Petitioner, Pro Se:, Luis Barbosa, Fort Dix, New Jersey.
JAMES B. COMEY, United States Attorney for the Southern District of New York, New York, New York, of Counsel: Daniel Margolis Assistant United States Attorney, for Respondent.
OPINION AND ORDER
Before the Court is Petitioner Luis Barbosa's ("Barbosa") pro se application to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255 ("§ 2255"). Barbosa was originally sentenced by Judge Tsoucalas, of the International Court of Trade, sitting in the Southern District of New York, to 262 months imprisonment followed by five years supervised release for a violation of 21 U.S.C. § 846. For the reasons set forth below, Barbosa's application is denied.
BACKGROUND
On December 13, 1990, Barbosa was charged with conspiracy to distribute in excess of 100 grams of heroin in violation of 21 U.S.C. § 846. The one-count Superseding Indictment charged violations of 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(B) as the underlying offenses in the conspiracy. On July 23, 1991, the Government filed a Prior Felony Information based upon Barbosa's guilty plea to a felony involving narcotics. Barbosa was tried by jury and convicted before Judge Tsoucalas on October 2, 1991. On February 27, 1992, the Judge sentenced Barbosa to 262 months imprisonment followed by five years supervised release.
Barbosa appealed his sentence to the Second Circuit on June 22, 1992. This appeal was rejected on May 13, 1993, in an unpublished order. On March 15, 1994, and June 30, 1994, Barbosa submitted two motions for resentencing pursuant to Federal Rule of Criminal Procedure 32. Judge Tsoucalas denied these motions on April 19, 1994, and August 8, 1994, respectively.
On May 31, 2000, Barbosa filed a motion pursuant to 18 U.S.C. § 3582 (c)(2). The matter was assigned to me. I denied that motion on June 4, 2001. However, Barbosa was given the option of amending his motion to pursue relief under 28 U.S.C. § 2255.
Barbosa's present motion, seeking relief pursuant to § 2255, was received by the Court's Pro Se Office on July 18, 2001. In support of his application, Barbosa cites the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Specifically, Barbosa alleges that underApprendi, the quantity of drugs involved in the crime and the leadership role in the offense with which he was imputed were both used to enhance his sentence, and were elements of the offense that should have been submitted to the jury and proven beyond a reasonable doubt. For the reasons set forth below, Barbosa's motion is denied.
DISCUSSION
I. Barbosa's Motion is Time-Barred
A § 2255 motion must be filed within the statute of limitations imposed under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The relevant clause provides that § 2255 motions filed after April 24, 1996 must be filed within a year from the latest of the date on which the judgment of conviction becomes final, or 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. See 28 U.S.C. § 2255 (1), (3).
The judgment of conviction becomes final on the date that time to appeal expires. Bryant v. United States, No. 99 Civ. 5736, 2000 U.S. Dist. LEXIS 17885, at *5 (S.D.N.Y. Dec. 11, 2000); Martinez v. United States, No. 00 Civ. 1214, 2000 U.S. Dist. LEXIS 8794, at *3 (S.D.N.Y. June 28, 2000). Barbosa was sentenced on February 27, 1992. The Second Circuit rejected his appeal of that sentence in an unpublished order on May 13, 1993. Barbosa did not petition for certiorari to the United States Supreme Court. His judgment then became final on August 13, 1993, the last day on which he could have sought certiorari. See Sup.Ct. R. 13.1 (stating that a petition for a writ of certiorari must be filed within 90 days after entry of judgment).
Petitioners such as Barbosa whose judgments became final before the April 24, 1996 effective date of the AEDPA have one year after that date in which to file motions pursuant to § 2255. Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998). Barbosa's time to file a § 2255 motion expired on April 24, 1997. Barbosa's motion was received by this Court's Pro Se Office on July 18, 2001, more than four years after his time to file had expired.
Barbosa argues that the AEDPA deadline should be equitably tolled because he has suffered from physical ailments. The AEDPA's one-year statute of limitations is subject to equitable tolling only in "rare and exceptional circumstances" and the petitioner must demonstrate that he "acted with reasonable diligence throughout the period he seeks to toll."Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). The tolling requirements have been strictly construed. A petitioner's allegations of illness must be supported by evidence and not based merely on the petitioner's own conclusions. See Mendez v. Artuz, No. 99 Civ. 2472, 2000 U.S. Dist. LEXIS 9958, at *6 (S.D.N.Y. July 18, 2000) (stating that conclusory allegations do not meet the high burden required to justify tolling). Further, a petitioner must prove that he was unable to pursue his legal rights during the entire period that he sought to have tolled.See Rhodes v. Senkowski, 82 F. Supp.2d 160, 169-70 (S.D.N.Y. 2000) (finding that petitioner failed to show that his documented medical problems rendered him unable to pursue his legal rights during the relevant time period).
Barbosa seeks to toll the time between April 24, 1996, and April 24, 1997. He attempts to show "exceptional circumstances" claiming that he spends much of his time in and out of hospitals, has diabetes, hernia and asthma attacks, has suffered two heart attacks while in prison, and was told by doctors that he needs a heart transplant. See Mot. at 11. He also alleges that his spine froze, causing him to be confined to a wheelchair for two weeks in 1995 and that he was confined to a wheelchair in 1996 and 1997 as a result of his "lower [l]umbar being shattered." Mot. at 11.
These allegations are conclusory and do not provide adequate proof that Barbosa's alleged illnesses rendered him unable to file his motion in a timely manner. Barbosa refers to the Court order that he submit to a complete physical to determine whether he was physically able to stand trial. He also points to occasions where his trial was postponed because he was ill. These events occurred prior to Barbosa's conviction and sentence and do not coincide with the period Barbosa seeks to toll. The evidence provided cannot be used to justify equitable tolling.
Barbosa also submitted copies of doctors' reports describing his hospital admission during his incarceration. These reports, however, dating back to April 1992, also fail to address the time period sought to be tolled. It is clear from the reports that Barbosa indeed suffers or at some point suffered from physical ailments, but this is not enough to meet his burden. See Rhodes, 82 F. Supp.2d at 173 ("a petitioner must allege more than the mere existence of physical or mental ailments to justify equitable tolling").
Although he alleges that he was confined to a wheelchair in 1996 and 1997, Barbosa does not specify the exact amount of time that he was incapacitated, nor detail exactly how being confined to a wheelchair prevented him from filing his motion. Barbosa must show that he was unable to file his motion during the four years allowed to lapse beyond the filing deadline. See Mendez, 2000 U.S. Dist. LEXIS 9958, at *6 (stating that, where petition was late by more than a year and a half, petitioner's illness or hospitalization has to account for the time lapsed). Barbosa has failed to show that the AEDPA's limitation period should be equitably tolled.
II. Barbosa's Reliance on Apprendi
Barbosa contends that the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) supports vacating his conviction. InApprendi, the Supreme Court held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt." Id. at 490. Aprrendi was decided after Barbosa's conviction and sentencing. For Apprendi to apply to his case, the rule announced must be "new".
A rule is "new" if "the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, 489 U.S. 288, 301 (1989) (emphasis in original). Generally, a new rule of criminal procedure is not retroactively applied to cases unless (1) "it places certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe" or (2) it is a watershed rule, involving "procedures that . . . are `implicit in the concept of ordered liberty.'" Id. at 311.
Barbosa relies upon the second Teague exception as the basis forApprendi's retroactive application to his case. See Mot. at 1. However, the ruling in Apprendi does not meet the standard of "new watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding." Sawyer v. Smith, 497 U.S. 227, 241-42 (1990),cert. denied, 527 U.S. 1021 (1999). The Second Circuit has recognized that the second Teague exception is be interpreted narrowly. See United States v. Mandanici, 205 F.3d 519, 529 (2d Cir. 2000) (citations omitted) (noting that the Supreme Court has decided that, beginning with the rule in Teague, at least eleven new rules of criminal procedure should not be retroactively applied).
The Second Circuit has found that Apprendi does not apply retroactively to second or successive petitions under § 2255 because "it is clear that Apprendi is not a new rule of constitutional law which has been made retroactive to cases on collateral review by the Supreme Court." Forbes v. United States, 262 F.3d 143, 145 (2d Cir. 2001). Similarly, the Fourth and Ninth Circuits have ruled that Apprendi should not apply retroactively to cases on collateral review. See United States v. Sanders, 247 F.3d 139, 151 (4th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000).
Although the Forbes Court did not rule as to Apprendi's retroactive application to initial § 2255 petitions, see id. at 146, n. 5, the Second Circuit addressed a similar question in Bilzerian. In Bilzerian, the Second Circuit determined that the Supreme Court's decision in United States v. Gaudin, 515 U.S. 506 (1995), which shifted the determination of materiality in an 18 U.S.C. § 1001 prosecution from the judge to the jury, was not a watershed rule justifying retroactive collateral review. See Bilzerian, 127 F.3d at 241; see also Mandanici, 205 F.3d at 529-30 ("[T]he rule requiring proof of materiality beyond a reasonable doubt for conviction under § 1001 does not fit within the secondTeague exception"). Under these Second Circuit cases, the second Teague exception does not apply to the new rule announced in Apprendi. Therefore the rule announced in Apprendi does not support Barbosa's motion.
Even if Apprendi applied here, the case does not present an Apprendi issue. In Apprendi, the Supreme Court held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490 (emphasis added). Factors that do not result in a sentence above the statutory maximum are not implicated by Apprendi. See United States v. McLeod, 251 F.3d 78, 82 (2d Cir. 2001); United States v. Garcia, 240 F.3d 180, 184 (2d Cir. 2001);United States v. White, 240 F.3d 127, 136 (2d Cir. 2001).
Barbosa contends that his sentence was enhanced by four points because he was imputed a leadership role in the crime and because the sentencing judge determined the quantity of drugs involved. He further claims that both of these factors, which served to increase his sentence above the statutory maximum, should have been submitted to the jury and proven beyond a reasonable doubt. Instead of being sentenced pursuant to 21 U.S.C. § 841 (b)(1)(B), which involves 100 grams or more of heroin, Barbosa alleges that he was sentenced pursuant to § 841(b) (1)(A), which involves one (1) kilogram or more of heroin. Barbosa's assertions are incorrect.
Barbosa was convicted by a jury of conspiracy to distribute, and possess with intent to distribute, heroin in violation of 21 U.S.C. § 846. The indictment explicitly enumerates violations of 21 U.S.C. § 812, 841(a)(1), and 841(b)(1)(B) as underlying offenses in the conspiracy. The amount of heroin involved, 100 grams, was stated in the indictment and was submitted to the jury. Barbosa concedes this fact. See Mot. at 7. Before sentencing, the Government submitted a Prior Felony Information based upon a felony drug conviction, which, pursuant to § 841(b)(1)(B), served to increase Barbosa's penalties. Section 841(b)(1)(B) states in relevant part:
Section 812 establishes the schedules of controlled substances and § 841(a)(1) sets forth unlawful acts involving controlled substances.
In the case of a violation of subsection (a) of this section involving —
(i) 100 grams or more of a mixture or substance containing a detectable amount of heroin . . . such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years . . . If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment. . . .21 U.S.C. § 841 (b)(1)(B).
Barbosa was sentenced to 262 months (21 years, 10 months) imprisonment. This is far below the statutory maximum term of life imprisonment to which he was subject. This case does not present anApprendi issue. Barbosa's motion is denied.
CONCLUSION
For the reasons outlined above, Barbosa's motion is denied. Because the Petitioner has not made a substantial showing of denial of a constitutional right, a certificate of appealability will not issue.United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). This case is closed and the Court directs the Clerk of the Court to remove this case from the Court's active docket.
SO ORDERED.