Opinion
No. 99 Civ. 5736 (JFK), 95 Cr. 240 (JFK).
December 11, 2000.
Petitioner, Pro Se: ANTHONY BRYANT, Valley Stream, N.Y.
For the Respondent: MARY JO WHITE, United States Attorney, S.D.N Y New York, New York. Of Counsel: AUSA Andrew J. Kameros.
OPINION and ORDER
Before the Court is the Petitioner Anthony Bryant's ("Bryant") motion to vacate his conviction, pursuant to 28 U.S.C. § 2255 ("§ 2255"). This Court originally sentenced Bryant to sixty months' imprisonment and one year of supervised release for violations of 26 U.S.C. § 7206(2). For the reasons that follow in this Opinion and Order, Bryant's motion is denied.
BACKGROUND
On March 21, 1995, Bryant was charged in a twenty-four count indictment with willfully aiding and assisting in the preparation of a materially false tax return for a client in violation of 26 U.S.C. § 7206(2). On March 22, 1995, Bryant appeared before Magistrate Judge Theodore H. Katz. Magistrate Judge Katz ordered Bryant's release on a personal recognizance bond with weekly pre-trial supervision by telephone.
On April 14, 1995, the Government applied for an arrest warrant for Bryant pending a bail-revocation hearing pursuant to 18 U.S.C. § 3148. In support of its application, the Government stated that (1) Bryant had failed to surrender his passport in violation of a condition of his bail, and that (2) Bryant was planning to flee to the Dominican Republic, according to a Government source. On that same day, Judge Peter K. Leisure of this district signed a bench warrant for Bryant's arrest. After an evidentiary hearing held on April 17, 1995, Magistrate Judge Nina Gershon concluded that Bryant intended to flee, and ordered that he be detained pending trial.
On November 2, 1995, Bryant was convicted of twenty-two of the twenty-four counts in his indictment. He subsequently filed a pro se motion for a judgment of acquittal, pursuant to Fed.R.Crim.P. 29(c), which this Court denied on April 17, 1996. This Court sentenced Bryant on November 14, 1996 to sixty months' imprisonment, to be followed by one year of supervised release, and imposed special assessments totaling $1,100.
Bryant appealed his conviction and sentence. He argued that this Court miscalculated the tax loss attributable to his conduct and improperly set his offense level at twenty-four rather than twenty-three. On October 14, 1997, the Second Circuit upheld Bryant's conviction and sentence. See United States v. Bryant, 128 F.3d 74 (2d Cir. 1997). He did not seekcertiorari to the U.S. Supreme Court.
In the course of these proceedings, Bryant also filed two separate civil complaints in this district. In both complaints, Bryant argued that the Government violated his constitutional rights by improperly obtaining his April 14, 1995 arrest warrant through the use of false testimony. Bryant filed these complaints on December 19, 1996 and March 5, 1998, respectively. They were both ultimately dismissed. See Bryant v. United States, No. 97-2372, slip op. at 1 (2d Cir. Aug. 29, 1997); Bryant v. United States, 71 F. Supp.2d 233, 237 (S.D.N Y 1999); Bryant v. United States, No. 97 Civ. 3620 (S.D.N.Y. May 19, 1997)
DISCUSSION
Bryant bases his § 2255 petition upon the following three arguments: (1) his conviction was illegal because his pre-trial arrest was based on a false, unsworn application for an arrest warrant; (2) he was denied the effective assistance of counsel because his trial lawyer did not raise the alleged illegality of that arrest at trial; and (3) he was denied a fair trial because this Court knowingly failed to address the illegality of his arrest. Because Bryant's petition is barred as untimely, the Court need not address these contentions.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2255 ("§ 2255"), imposes a one-year statute of limitations on § 2255 motions filed after April 24, 1996.See Lindh v. Murphy, 532 U.S. 320 (1997). This limitation period begins to run against a petitioner on the latest of the following four dates:
(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.28 U.S.C. § 2255.
A defendant's judgment becomes final on the date that his time to appeal expires. See Martinez v. United States, No. 00 Civ. 1214, 2000 WL 863121 (S.D.N.Y. June 28, 2000). This Court sentenced Bryant on November 2, 1995. He subsequently appealed, and the Second Circuit affirmed this Court's judgment on October 14, 1997. See United States v. Bryant, 128 F.3d 74 (2d Cir. 1997). He did not seek certiorari to the U.S. Supreme Court. His judgment, therefore, became final on January 14, 1998, the last date upon which he could have sought certiorari.. See Supreme Court Rule 13.1 (stating that a petition for a writ ofcertiorari must be filed within ninety days after entry of the judgment)
Bryant submitted his § 2255 petition to this district's Pro Se Office on June 9, 1999, almost five months after his deadline under the AEDPA. He filed it with the Court on July 20, 1999, over six months after his AEDPA deadline.
Nevertheless, Bryant argues that he could not have discovered the facts needed to support his § 2255 petition before July of 1998. According to Bryant, he first learned that his conviction was the result of a false, unsworn arrest-warrant application in a declaration which the Government submitted as part of a motion to dismiss one of Bryant's civil complaints. The Government filed that motion with the Court on July 13, 1998. Bryant argues that his petition is timely under § 2255 because he filed it within one year after discovering those facts in July of 1998.
The Court finds that all the facts alleged in Bryant's § 2255 petition were available to him by the time he filed his two civil complaints in this district. Bryant filed those complaints on December 19, 1996 and March 5, 1998, respectively; well before his alleged discovery of "new" facts in July of 1998.
Bryant challenged the legitimacy of his arrest in both of those complaints. In his first complaint, he argued that the Government's application for his arrest warrant was false because it falsely stated that Bryant had not surrendered his travel documents as required. In support of that claim, Bryant attached the following three exhibits: (1) the Government's application for his arrest warrant; (2) his arrest warrant; and (3) a transcript of the March 22, 1995 hearing on his bond conditions. In his second complaint, Bryant argued that his arrest warrant did not conform to the Government's application.
The "new" issue that Bryant raises in his § 2255 petition is that the Government's application for his arrest warrant was unsworn, in violation of Fed.R.Crim.P. 3. He states that this information first became available to him in July of 1998. However, an examination of the arrest-warrant application itself would reveal that its representations had not been made under oath. Bryant had that application in his possession as early as December 19, 1996, when he attached it as an exhibit to his first civil complaint.
Bryant's § 2255 petition is untimely whether it is measured from the date upon which his judgment became final or the date by which he discovered the facts upon which it is based. Bryant's judgment became final on January 14, 1998. All the facts that Bryant alleges in his § 2255 petition were available to him by December 19, 1996 at the latest. Bryant filed the petition on July 20, 1999, more than one year after both of those dates. Moreover, the Court can see no "extraordinary circumstances [that would have] prevented him from filing his petition on time." See Smith v McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). The Court must therefore dismiss his petition as untimely.
CONCLUSION
Bryant's § 2255 petition is dismissed. The Court orders this case closed, and directs the Clerk of the Court to remove it from the Court's active docket.
SO ORDERED.