Opinion
05 Civ. 5952 (SAS). 02 Cr. 1039 (SAS).
February 20, 2008
Petitioner (Pro Se): Bao Deng Chen #53661-054, Low Security Correctional Institute-Allenwood White Deer, PA
For Respondent: Michael M. Rosensaft, Assistant United States Attorney, United States Attorney's Office, New York, NY
OPINION AND ORDER
I. INTRODUCTION
Bao Deng Chen, incarcerated and proceeding pro se, is moving to vacate, set aside or correct his sentence pursuant to section 2255 of title 28 of the United States Code ("section 2255"). Additionally, Chen contends that he is entitled to an evidentiary hearing in order to demonstrate that he requested, and his trial counsel failed to file, an appeal. This Court ordered Chen to show cause as to why his motion should not be dismissed as untimely. For the reasons set forth below, Chen's motion is denied as untimely.
II. BACKGROUND
A. Procedural Background
In 2002, Chen was charged in a four-count Indictment. The charges were conspiracy to commit hostage taking, hostage taking, conspiracy to commit alien smuggling, and alien smuggling. Following a jury trial, Chen was convicted of all four counts. He was sentenced to sixty-three months imprisonment on September 2, 2003. No appeal was ever filed and Chen's conviction became final on or about September 12, 2003, after the ten day limitations period set forth in Federal Rule of Appellate Procedure 4(b) expired.
See Petitioner's Memorandum of Law in Support of the Order to Show Cause ("Pet. Mem.") at 2; Government's Response to Pet. Mem. ("Gov't Mem.") at 1-2.
See Pet. Mem. at 2.
See April 3 Order at 1.
On June 8, 2005, Chen filed a section 2255 motion claiming that his sentence was improper and that he was entitled to collateral relief under the Supreme Court's decisions in Blakely v. Washington, United States v. Booker, and Crawford v. Washington. Chen's motion was dismissed by this Court on the ground that it was time barred.
See 542 U.S. 296 (2004).
See 543 U.S. 220 (2005).
See 541 U.S. 36 (2004).
See Chen v. United States, No. 05 Civ. 5952, 2005 WL 3288022, at *2-3 (S.D.N.Y. Dec. 2, 2005). Even if Chen's sentence somehow violated Blakely, Booker, or Crawford, which it did not, he was not entitled to relief because those decisions are not applicable retroactively on collateral review. See id. at *3.
In response to Chen's appeal the Second Circuit vacated this Court's dismissal and remanded the case with instructions that Chen be provided "notice and an opportunity to be heard with respect to the timeliness" of his motion. On March 29, 2007, following the Second Circuit's Order, Chen moved for an evidentiary hearing on whether his section 2255 motion was timely filed. On April 3, 2007, I directed Chen to show cause as to why his section 2255 motion should not be dismissed as untimely.
Order, Chen v. United States, No. 06-1164-pr (2d Cir. Feb. 27, 2007) (citing Acosta v. Artuz, 22 F.3d 117, 124-25 (2d Cir. 2000)).
See Petitioner's Pro Se Motion for Evidentiary Hearing on Whether Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 Was Timely Filed at 1.
See 4/3/07 Order to Show Cause ("April 3 Order").
B. Current Order to Show Cause
Chen claims that after being sentenced, he requested that his trial counsel, Francisco Celedonio, file a notice of appeal on any grounds that Celedonio could find. Chen contends that Celedonio assured him that he would file an appeal. However, following that meeting, Chen had no further contact with Celedonio. He alleges that he made several telephone calls and sent letters to Celedonio about the appeal but received no responses. He also claims that because he was not in contact with his attorney he "had no way of knowing whether trial counsel had fulfilled his request to file an appeal." Chen now requests an evidentiary hearing in order to present letters he sent to Celedonio that will show that he exercised due diligence in attempting to communicate with his attorney.
See Pet. Mem. at 1.
See id.
See id. at 1.
Id. at 2.
See id. at 4.
Celedonio asserts in an affidavit that he met with Chen on September 10, 2003, and told him the disadvantages of filing an appeal. Celedonio further explained that the favorable rulings made at trial, and the favorable treatment from this Court at sentencing, made an appeal unwise. Celedonio asserts that by the end of the meeting, Chen agreed with him that no appeal would be filed. Celedonio also asserts that following that meeting, he did not receive any phone calls or letters in which Chen stated that he wanted to appeal.
See 7/23/07 Affidavit of Francisco Celedonio, Esq. ("Celedonio Aff.") ¶ 3, Ex. C to Gov't Mem.; see also Chen, 2005 WL 3288022, at * 1-2 (explaining the reasoning underlying Chen's sentence). Chen was given a two-level increase for obstruction of justice, to which he did not object, and a seven-level downward departure based on aberrant conduct and family circumstances. This placed Chen in a guideline range of 63-78 months. I sentenced Chen to the lowest level within that range, 63 months. See id.
See Celedonio Aff. ¶ 3.
See id. ¶ 4.
III. LEGAL STANDARD
A. Section 2255
Section 2255 allows a convicted person held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. Accordingly, collateral relief under section 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court or an error of law or fact that constitutes 'a fundamental defect which inherently results in a complete miscarriage of justice.'"
See 28 U.S.C. § 2255.
United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Accord United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989) ("Habeas corpus relief is generally available only to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.").
B. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") introduced for the first time a statute of limitations with respect to the filing of habeas corpus petitions. Pursuant to AEDPA, an application for a writ of habeas corpus is subject to a one-year period of limitation which runs from the latest of:
Pub.L. No. 104-132, 110 Stat. 1214.
See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998).
(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 or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
In Clay v. United States, the Supreme Court held that a conviction becomes final when the Supreme Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." "[A]n unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires."
537 U.S. 522, 527 (2003).
Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005) (citing Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (finding that "an unappealed federal criminal judgment becomes final ten days after it is entered")).
Where there is an alleged failure to file a timely notice of appeal, a court must determine "when a duly diligent person in petitioner's circumstances would have discovered that no appeal had been filed." A petitioner is not expected to conduct "maximum feasible diligence" — only "due" or "reasonable" diligence is required. Moreover:
Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000).
Id. at 190 n. 4.
[s]ection 2255(4) is not a tolling provision that extends the length of the available filing time by excluding certain periods that post-date the start of the limitations clock from the calculation of how much time has run. Rather, it resets the limitations period's beginning date, moving it from the time when the conviction became final . . . to the later date on which the particular claim accrued.
Id. at 190.
Additionally, the Second Circuit has noted that "the date on which the [2255(4)] limitations clock began to tick is a fact-specific issue the resolution of which depends, among other things, on the details of [petitioner's] post-sentence conversation with his lawyer and on the conditions of his confinement in the period after [conviction became final absent appeal]."
Id. at 190-91.
IV. DISCUSSION
Chen's conviction became final on or about September 12, 2003. Thus, in order to be timely Chen would have had to file his section 2255 motion on or about September 12, 2004. However, Chen filed his section 2255 motion nearly nine months later, on June 8, 2005, which is more than twenty months after his conviction became final.
Chen argues that the reason his motion was filed beyond the one-year time limit is because his attorney failed to file an appeal, despite his request that he do so. For this argument to succeed, Chen must show that he exercised due diligence in discovering that no appeal was filed and then filed his section 2255 motion within one year of that discovery. Thus, Chen must prove that even though he exercised due diligence, he was unable to discover, prior to June 8, 2004, that no appeal had been filed. An evidentiary hearing on this matter is not necessary because, even accepting everything that Chen says as true, his petition remains untimely because of his lack of reasonable diligence.
For purposes of this motion, I construe the record in the light most favorable to Chen, and assume, arguendo, that Chen requested that an appeal be filed. Thus, there is no need for an evidentiary hearing on the timeliness issue because I find, as a matter of law, that Chen failed to exercise due diligence in discovering that no appeal had been filed.
Chen last met with his attorney on September 12, 2003. After that, he claims he sent several letters to Celedonio to which he received no response and made several phone calls which Celedonio did not accept. Having lost contact with his attorney since September 12, 2003, a reasonably diligent prisoner should have been able to discover, within the statutory one-year period, that no appeal had been filed. Waiting nearly twenty months to file his petition, during which Chen had no contact with his attorney and made no other efforts to ascertain the status of his appeal, does not demonstrate due diligence. At some point, reasonable diligence required that Chen take affirmative steps to ascertain the status of his appeal, beyond just sending letters and making phone calls which were not returned. Accordingly Chen should have been able to discover, with reasonable diligence, that no appeal had been filed prior to June 8, 2004.
It is generally true that "a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice." Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). But here, when Chen claims that he did not receive any responses to his phone calls and letters and did not meet with his attorney for over eight months, the general rule set forth in Flores-Ortega is inapplicable. See Delacruz v. United States, No. 06 Civ. 5666, 2006 WL 2129335 (S.D.N.Y. July 31, 2006) (holding a section 2255 petition untimely when petitioner claimed that he instructed his trial counsel to file an appeal, but did not hear from him and filed his section 2255 motion twenty months after being sentenced).
See Montenegro v. United States, 248 F.3d 585, 593 (7th Cir. 2001) ("that an appeal had not been filed was a matter of public record, which reasonable diligence could have unearthed"), abrogated on other grounds by Ashley v. United States, 266 F.3d 571 (7th Cir. 2001); United States v. Barrett, No. 04-C-0855-C, 2005 WL 978105, at * 1-2 (W.D. Wis. Apr. 26, 2005) ("It is not always easy for laypeople to learn the status of their court proceedings, but this does not mean that they are excused from doing so. . . . 'Due diligence' does not mean whenever the movant happened to find out; rather, it requires a showing that the movant has been in active pursuit of the information he needs. . . . The lack of any appeal from his conviction was evident on this court's docket, which is a public record.").
See Barrett, 2005 WL 978105, at *2 ("Defendant's four unsuccessful efforts to reach his counsel between April and October 2003 do not show due diligence.").
V. CONCLUSION
For the foregoing reasons, Chen's section 2255 motion is denied as untimely. The remaining issue is whether to grant a certificate of appealability ("COA"). For a COA to issue, petitioner must make a "substantial showing of the denial of a constitutional right." A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely that reasonable jurists could debate whether "the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Petitioner has made no such showing. Accordingly, I decline to grant a certificate of appealability. The Clerk of the Court is directed to close this motion [document number 57 on the criminal docket sheet] and this case.
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Accord Middleton v. Attorneys Gen. of the States of New York and Pennsylvania, 396 F.3d 207, 209 (2d Cir. 2005) (denying COA where reasonable jurists could not debate whether the district court's dismissal of the petition was correct).
SO ORDERED: