Opinion
00 Civ. 2468 (RPP), 95 Cr. 1039 (RPP).
MAY 17, 2000.
OPINION AND ORDER
On March 31, 2000, petitioner Liza Mamaradlo ("Mamaradlo") filed a motion pro se pursuant to 28 U.S.C. § 2255 to vacate her sentence.
Background
Petitioner was charged in 1995 and 1996 with bank embezzlement under 18 U.S.C. § 371 and conspiracy to commit bank embezzlement under 18 U.S.C. § 656. She pled guilty on January 29, 1997, at which time this Court sentenced her to 18 months' incarceration. (§ 2255 Mot., dated Mar. 9, 2000.) Petitioner's conviction also included three years of supervised release and restitution in the amount of $389,616.00. (Judgment, Jan. 31, 1997.) At the time of sentencing, the Court instructed petitioner to surrender in June 1997 to serve her sentence. Instead of surrendering, petitioner fled and remained at large until August 1999 or October 1999, at which time she was apprehended in Arizona. (Govt.'s Response, Apr. 10, 2000, at 2; Def.'s Reply, Apr. 28, 2000, at 1.)
Discussion
Petitioner argues that her sentence should be vacated both because she received ineffective assistance of counsel and because she did not have a full "understanding of the consequences of the Plea Agreement." (§ 2255 Mot., dated Mar. 9, 2000.)
With regard her to claim of ineffective assistance of counsel, petitioner argues that her attorney had limited experience with white collar crimes, that he did not understand the discovery documents, and that he did not prepare adequately for her case. (Facts for § 2255 Mot. at 1-2.) Petitioner also contends that her attorney convinced her to accept a plea agreement without explaining the consequences, that he never discussed the issue of deportation with her, that he did not talk with her about the Pre-Sentence Report, and that he has still not provided her with a signed copy of the Plea Agreement. (Facts for § 2255 Mot. at 3-5.) Finally, she states that she has not heard from her attorney since she was sentenced. (Facts for § 2255 Mot. at 6.)
Regarding her lack of understanding of the Plea Agreement, petitioner explains that she "felt . . . ambushed" by the "improper pressure" placed upon her by the prosecutor to sign the Agreement. (Facts for § 2255 Mot. at 6.) She asserts that she was given one hour to sign the Plea Agreement, during which time she and her attorney were not able to fully review the Agreement and her attorney was not able to sufficiently explain the consequences of it. (Facts for § 2255 Mot. at 6-7.) Specifically, she states that neither her attorney nor the prosecutor told her that she would be subject to deportation if she signed the Plea Agreement. (Facts for § 2255 Mot. at 7.) She contends that she was aware of no consequences of the Agreement beyond that "the Government will forfeit my property as full restitution and that I will be incarcerated from 18-24 months." (Facts for § 2255 Mot. at 7.)
The Government argues that petitioner's motion should be dismissed because it is time barred. (Govt.'s Response, Apr. 10, 2000, at 2.) The Government asserts that the statute of limitations for petitioner's motion expired on January 31, 1998, one year from the date when the judgment became final. (Govt.'s Response, Apr. 10, 2000, at 2.)
Title 28 U.S.C. § 2255 states in relevant part:
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.28 U.S.C. § 2255.
In her reply to the Government's letter, dated April 28, 2000, petitioner argues that the statute of limitations did not begin to run until October 1999, when she was taken into custody. (Def.'s Reply, Apr. 28, 2000, at 1.) She also asserts that the Court may exercise its discretion to hear her motion regardless of whether the statute of limitations has run. (Def.'s Reply, Apr. 28, 2000, at 1.) Finally, she argues that her motion should be granted "[b]ecause [the] conviction was not obtained through fundamentally fair procedures due to Ineffective Counsel, which left me without real representation." (Def.'s Reply, Apr. 28, 2000, at 2.)
Because petitioner did not appeal the judgment entered on January 31, 1997, the judgment became "final" on that date for purposes of the statute of limitations. Therefore, the statute of limitations expired on January 31, 1998. However, several circuits have held that the statute of limitations in § 2255 is subject to equitable tolling.See, e.g., United States v. Patterson, 2000 WL 562185 at 2 (5th Cir. May 9, 2000); Akins v. United States, 204 F.3d 1086, 1089 (11th Cir. 2000); Moore v. United States, 173 F.3d 1131, 1134 (8th Cir. 1999); Taliani v. Chrans, 189 F.3d 597, 597-98 (7th Cir. 1999); Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 6 18-19 (3d Cir. 1998). "Equitable tolling is appropriate when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence." Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999).
In this case, the circumstances that may have contributed to the delay in petitioner's filing of her motion to vacate her sentence are: 1) the lack of post-conviction assistance from her attorney, including not receiving a signed copy of the Plea Agreement, coupled with ineffective pre-conviction assistance of counsel; and 2) the fact that she was a fugitive from June 1997 to August or October 1999. The first of these circumstances may have been "beyond [petitioner's] control," but her notice of appeal could have been filed before she became a fugitive and she has not shown that she kept her attorney advised of her whereabouts during the years that she was a fugitive. In short, the resulting delay of more than two years past the time when the statute of limitations ran was not "unavoidable," and the second circumstance was wholly within petitioner's control. Therefore, it is not appropriate to toll the statute of limitations in this case.
Conclusion
Because petitioner's motion is time-barred under the statute of limitations in 28 U.S.C. § 2255 and because petitioner has presented no "extraordinary circumstances" which would warrant tolling the statute of limitations, her motion to vacate her sentence is dismissed.
IT IS SO ORDERED.