Opinion
01 Civ. 4511 (HB), 97 Cr. 313 (HB)
August 29, 2002
OPINION ORDER
Petitioner Orsi Tineo ("Tineo"), appearing pro se, moves to vacate and set aside, or correct his sentence and conviction pursuant to 28 U.S.C. § 2255. For the reasons discussed below, the motion is DENIED and the petition is dismissed.
BACKGROUND
On October 1, 1997, Tineo pleaded guilty before the Honorable Robert P. Patterson, to whom I referred the plea, to two counts charging him with conspiracy to distribute cocaine, and attempted possession of cocaine with intent to distribute, each in violation of 21 U.S.C. § 846. At his plea, Tineo allocuted to his participation with several others during the period of 1996 to 1997 to importing, with intent to distribute, five kilograms and more of cocaine from the Dominican Republic to New York by hiding it inside cans of guava paste. See Plea Tr. at 11-13. On April 15, 1998, I sentenced Tineo to a term of 168 months imprisonment, to be followed by five years of supervised release, with a $200 special assessment. Tineo did not appeal his conviction.
On May 1, 2001, more than three years after I imposed his sentence, Tineo filed this motion to vacate his sentence by delivering his petition to prison authorities. Tineo challenges his sentence on four grounds: (1) that his guilty plea was entered involuntarily and unknowingly; (2) that the indictment was defective on its face; (3) that he was denied effective assistance of counsel; and (4) that the district court's denial of his motion to suppress certain evidence was in violation of his Fourth Amendment rights.
While the petition was not filed with this court until May 29, 2001, Tineo had delivered his petition to prison authorities on May 1, 2001. It is this earlier dates that Tineo's petition is deemed to have been filed. See Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir. 2001) (noting the "prison mailbox" rule); see also Fed.R.App.P. 25(a)(2)(C) ("A paper filed by an inmate confined in an institution is timely filed if deposited in the institution's internal mail system on or before the last day for filing").
The Government, without addressing the merits of Tineo's motion, asserts in a letter dated August 10, 2001, that the petition is untimely and must therefore be dismissed. Tineo had an opportunity to address the untimeliness of his petition in his reply dated August 31, 2001.
DISCUSSION
Pursuant to the 1996 enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), an application for a writ of habeas corpus is subject to a one-year period of limitation which runs 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.
Tineo, who did not file a direct appeal, was sentenced on April 15, 1998, and his judgment of conviction was entered on May 26, 1998. "Case law is clear that, where no review is sought, the final date of the conviction is ten business days from the entry of the judgment of conviction, which is the deadline for filing a notice of appeal under Fed.R.App.P. 4(b)(1)." German v. United States, 2002 WL 1558402, at *1 (S.D.N.Y. July 3, 2002) (Rakoff, J.) (citing authority); see also Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000) (conviction becomes final on the day the time to appeal expires). Accordingly, Tineo's conviction became final no later than June 9, 1998. Under subsection (1) of the AEDPA, he therefore had until June 9, 1999 to file his § 2255 habeas petition. Tineo, however, failed to file his petition until May 1, 2001, nearly two years late, and it is therefore clearly untimely under subsection (1).
Subsection (2) of the AEDPA is inapplicable because Tineo's papers do not allege any impediment caused by the government. Similarly, subsection (3) does not apply because Tineo fails to assert any newly recognized right, and I too find none.
Under subsection (4), the one-year statute of limitations begins to run on the date that "the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." Wims, 225 F.3d at 188 (emphasis in original). This date stands regardless of whether the petitioner actually discovers the relevant facts at a later date. Id. With regard to Tineo's motion, the principle inquiry to determine timeliness under subsection (4) is therefore whether a duly diligent person in Tineo's circumstances could have discovered the facts supporting his claim prior to May 1, 2000 — one year before the motion was actually filed. See id. at 189-90.
Clearly all of the facts underlying the four claims asserted by Tineo could have been discovered through the exercise of due diligence well before the expiration of the statute of limitations. With respect to his first ground for relief, Tineo contends that his guilty plea was entered unknowingly and involuntarily because the district court failed to explain the charges against him, he did not understand the nature of the charges, and he was coerced by his attorney, David Wikstrom, Esq., into pleading guilty. While I need not reach the merits of Tineo's claims, I note that his allegations are belied by the transcript of his plea allocution. Judge Patterson filly explained the nature of the charges against Tineo, the legal elements and factual basis that the government was required to prove, and the maximum term of imprisonment carried by each charge. See Plea Tr. at 5-15. Additionally, in response to Judge Patterson's question as to whether anyone had attempted to force him to plead guilty, Tineo responded, "No, sir." Plea Tr. at 5. Tineo clearly pleaded guilty to each charge. See Plea Tr. at 11, 13. In any event, Tineo, fails to provide any reasonable explanation as to why it took him more than three years to discover the facts underlying the allegations with respect to his plea allocution at which he personally attended.
With respect to his second ground for relief, Tineo claims certain facial deficiencies in the indictment, in particular, that the charges contained in the indictment lacked the requisite specificity under Fed.R.Crim.P. 7. It hardly needs stating that a duly diligent person in Tineo's circumstances would not have needed more than three years to discover the necessary facts to challenge the alleged facial insufficiency of his indictment.
Tineo similarly fails to justify the late filing of his petition with respect to his third claim for relief: ineffective assistance of counsel. Specifically, Tineo alleges that his lawyer erroneously permitted him to pled guilty to both counts in the indictment, coerced him to plead guilty, failed to prevent the introduction of certain evidence at sentencing, and neglected to file a direct appeal. See Petition at 9-11. A duly diligent person in Tineo's shoes would not have needed more than three years to discover the alleged ineffectiveness of counsel, including whether his attorney had failed to file a direct appeal, especially since the last day permitted to file a notice of appeal was June 9, 1998.
As for Tineo's last ground for relief, that the district court erred in denying his motion to suppress his statements to law enforcement agents made at his arrest, in addition to other evidence, it goes without saying that Tineo knew or should have been aware of the facts in support of this claim at the time he filed his motion to suppress on June 9, 1997.
Therefore, Tineo's motion must be denied as untimely unless he can show a basis to toll the statute of limitations.
Equitable Tolling
Tineo's late filing, however, is additionally not saved under the doctrine of equitable tolling. The Circuit has adopted the doctrine of equitable tolling in the context of AEDPA's statute of limitations provisions. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Equitable tolling is only to be applied in "rare and exceptional" circumstances. Id. To qualify, a petitioner must demonstrate that (1) extraordinary circumstances prevented the filing of his petition on time, and (2) he acted with reasonable diligence throughout the period he seeks to toll. Id. Tineo fails to show either element.
In his reply, Tineo contends that the AEDPA's one-year time limit runs from some time in April 2001, the date on which "petitioner discoved [sic] all the facts that he was violated on his guilty plea as well in the redaction of his indictment. . . ." Petitioner's Reply at 1. In a letter dated March 3, 2001, Tineo requested from the Court the transcripts of his guilty plea and sentence as part of his assertion that he conducted due diligence in attempting to discover the facts underlying his claims. Tineo's argument is without merit. Under the AEDPA, the statute of limitations does not run from the date on which a petitioner began due diligence to support his claim, but rather from the date a petitioner is on notice of the facts that would support a claim. See Youngblood v. Greiner, 1998 WL 72681, at *4 n. 4 (S.D.N.Y. Oct. 13, 1998) (noting that AEDPA newly discovered evidence provision runs "from the date a petitioner is on notice of the facts which would support a claim, not from the date on which the petitioner has in his possession evidence to support his claim) (Cote, J.); Brown v. Keane, 1998 WL 148334, at *3 (S.D.N.Y. Mar. 30, 1998) (finding that AEDPA limitations period was not tolled while petitioner "gathered transcripts and other documents necessary to file the current petition" since petitioner knew of the factual predicate for the claims from the time he raised them in state court); see also Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998) (noting that newly discovered evidence provision "does not convey a statutory right to an extended delay . . . while a habeas petitioner gathers every possible scrap of evidence that might . . . support his claim").
Tineo offers no explanation as to why he did not seek to review the transcripts until almost three years after his conviction. The petitioner has failed to provide any justification that might explain his delay and his petition is therefore dismissed as time-barred.
I note too that even if Tineo could have somehow been found to have timely filed his petition, which he did not, all of his claims, save perhaps that for ineffective assistance of counsel, are barred by his failure to raise them in a direct appeal. See United States v. Frady, 456, U.S. 152, 165 (1982) (stating that a § 2255 motion may not be used as a substitute for a direct appeal); Abbamonte v. United States, 160 F.3d 922, 924 (2d Cir. 1998) (noting that an issue generally cannot be presented in a § 2255 motion if it could have been raised on direct appeal, whether it was actually raised on appeal or not).
CONCLUSION
For the reasons discussed above, Tineo's motion to vacate, set aside, or correct his sentence is DENIED and the petition is dismissed. The Clerk of the Court is instructed to close this case and remove it from my docket.
SO ORDERED.