Summary
noting that the Second Circuit granted a COA in the appeal of a prior order in which a section 2241 action was treated as a motion under 28 U.S.C. § 2255, in which a COA is statutorily required
Summary of this case from Spencer v. ChristensenOpinion
01-CV-2249 (ILG)
June 11, 2001
Emily Berger, Esq., Assistant U.S. Attorney.
Jairo Cespedes, Otisville, NY.
MEMORANDUM ORDER
This is the second petition filed by Mr. Cespedes pursuant to 28 U.S.C. § 2241. The first was filed on March 9, 2000, under docket number 00-CV-1515 (ILG) approximately nine years after his conviction of violating 18 U.S.C. § 841 (a)(1) was affirmed on appeal. He alleged then that his counsel was ineffective for failing to advise him of a possible entrapment defense and that he should be resentenced based upon his involvement with five kilograms of cocaine rather than the twenty for which he was sentenced. In an Order dated June 14, 2000, familiarity with which is assumed, his petition was deemed to be one filed pursuant to 28 U.S.C. § 2255 and was denied as being time-barred. Attempting to avoid the one year limitation by bringing himself within the provision of § 2255(4), Cespedes asserts that the ineffectiveness of his lawyer in failing to present or even investigate an entrapment defense was tantamount to a claim of actual innocence giving rise to a constitutional concern described by Triestman v. United States, 124 F.3d 361 (2d Cir. 1997). This Court responded to that assertion by holding that "petitioner failed to show how an entrapment defense could even have gotten off the ground in his case" and concluded that his petition, styled as one pursuant to § 2241 should be construed as being brought pursuant to § 2255 and dismissed as being untimely.
§ 2254 provides that the one year "limitation period shall run from the latest of (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due dingence."
The petitioner then sought a Certificate of Appealability and appointment of counsel from the Court of Appeals. That Court granted his request for a Certificate of Appealability for the limited purpose of remanding the matter to this court with instructions to notify the petitioner "that his § 2241 petition is being construed as filed under § 2255 and to give [him] the opportunity to withdraw or amend his motion." His request for appointment of counsel was denied.
The petitioner was informed, as directed, by letter dated October 17, 2000. He responded by letter dated October 27, 2000, which he described as an "amended § 2255 letter-motion pursuant to the Second Circuit's Order" and in which he again claimed that he was ineffectively assisted by counsel. In a Memorandum and Order dated November 1, 2000, familiarity with which is assumed, his claim was rejected as meritless for the reasons explained in this Court's Memorandum and Order of June 14th and his § 2255 "amended letter-motion" was dismissed. The Court then received petitioner's letter dated November 9th, 2000, which was deemed a motion pursuant to Rule 59(e), Fed.R.Civ.P. in which he requested a reconsideration of the November 1st Order, still asserting an ineffective assistance claim. For the reasons previously given, this motion was dismissed again as being both meritless and frivolous.
Foregoing a motion for a Certificate of Appealability from those Orders, Cespedes yet again filed the petition now before the Court which he once again describes as being pursuant to 28 U.S.C. § 2241 and in which he repeats the same claimed infirmities of his sentence which he raised on direct appeal. He now claims that this Court erroneously concluded that he obstructed justice and had not accepted responsibility in determining his Guidelines sentence. He also claims that Apprendi v. New Jersey, 530 U.S. 435 (2000) is applicable to his sentence because "[t]he drug amounts in the offense was not established through an evidentiary hearing." (Motion at ¶ 3).
Discussion
At the outset, although styled as a petition filed pursuant to § 2241, Jiminian v. Nash, 245 F.3d 144 (2d Cir. 2001) teaches that it be regarded as a § 2255 petition without the necessity for obtaining the specific consent of the petitioner to treat it as such. In that case, the Court held that a § 2241 petition may not be filed "simply because the prisoner cannot meet the AEDPA's gatekeeping requirements, provided that the claim the prisoner seeks to raise was previously available on direct appeal or in a prior § 2255 motion." Id. at 147-48 (citations omitted). Each of the three claims for relief could have been raised by Cespedes on appeal (and two were raised there) or in his prior post-conviction petitions. Accordingly, this petition is deemed as one filed pursuant to § 2255 and is thus a second or successive petition which requires the authorization of the Court of Appeals to bring it. In accordance with the teaching of Liriano v. United States, 95 F.3d 119 (2d Cir. 1996) it is hereby transferred to the United States Court of Appeals for the Second Circuit.
SO ORDERED.