Opinion
99 Cr. 1020 (RPP), 01 Civ. 6675 (RPP)
January 2, 2002
Manuel Antonio Perez DeJesus, Reg. No. 48378-054, Fort Dix, NJ., Petitioner Pro Se.
Mary Jo White, United States Attorney Southern District of New York, ATTN: David Siegal, New York, NY.
OPINION AND ORDER
Petitioner Manuel Antonio Perez DeJesus moves the Court pursuant to 28 U.S.C. § 2255 to vacate his sentence and order a new sentence contending he was denied due process. For the following reasons, Petitioner's motion is denied.
Petitioner was charged with illegal re-entry, in violation of 8 U.S.C. § 1326 (a) and (b)(2), in a one count indictment filed with the Court on September 30, 1999. On December 27, 1999, the Government sent Petitioner's attorney a letter written pursuant to United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991) setting forth its position regarding the application of the Sentencing Guidelines to Petitioner's case. Petitioner's sentencing range, as calculated in the Government's Pimentel letter was 46 to 57 months' incarceration taking into consideration a 16-level increase as required pursuant to U.S.S.G. § 2L.1.2(b)(1)(A) for Petitioner's criminal
That indictment read: From at least on or about December 26, 1998 up to and including on or about February 18, 1999, in the Southern District of New York and elsewhere, MANUEL ANTONIO PEREZ de JESUS, . . . the defendant, being an alien, unlawfully, unwilfully, and knowingly did enter, and was found in, the United States after having been deported from the United States subsequent to a conviction for the commission of an aggravated felony, to wit, a conviction on or about April 17, 1986, in the Supreme Court for the State of New York, New York County, for criminal sale of a controlled substance in the second degree, and without having obtained the express consent of the Attorney General of the United States to reapply for admission.
conviction for an aggravated felony. During Petitioner's plea allocution on January, 6, 2000, Petitioner acknowledged on the record both the existence of his April 17, 1987 felony conviction in Supreme Court, New York County for criminal sale of a controlled substance in the second degree, and his review of both the indictment and the Government'sPimentel letter with his attorney and a court certified Spanish interpreter. (1/6/00 Tr. 2, 4, 9-10.) On March 6, 2000, the Court sentenced Petitioner to 34 months' incarceration, 5 months of which were to be served concurrently with his remaining sentence for his State parole violation, to be followed by 3 years of supervised release. (Judgment at 2.)
Petitioner did not appeal his conviction or sentence. On June 20, 2001, Petitioner filed this § 2255 motion arguing that he was denied due process because the prosecutor did not submit a 21 U.S.C. § 851 information for enhancement of the sentence. The Government filed a response on October 4, 2001 opposing Petitioner's motion. Petitioner did not file a reply.
Significantly, Petitioner did not appeal his conviction following his plea of guilty. "A motion under § 2255 is not a substitute for an appeal." United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998) (citations omitted). When a criminal defendant has procedurally forfeited his claim by failing to raise it on direct review, "he is barred from raising the claim in a subsequent § 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom or that he is 'actually innocent' of the crime of which he was convicted." DeJesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998). Petitioner, while acknowledging the procedural bar to his motion caused by his failure to appeal, does not attempt to show "cause" and "prejudice" to avoid that bar.
Even if Petitioner was able to establish both cause and prejudice for his procedural default, his petition is also time-barred because it was not filed within one year of the time his conviction became final. Petitioner's sentence became final on March 16, 2000, ten days after the day the judgment was entered, because he did not file a notice of appeal within the ten day period to file a motion of appeal. He received notice of the ten day period from the Court at the time of sentence. Petitioner's § 2255 petition was not filed until June 20, 2001, well over the one-year time period had run. Therefore, since the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") requires a petition attacking a conviction to be filed within one year from the date the conviction becomes final, the petition is time-barred. 28 U.S.C. § 2255 (1); see Cordero v. United States, 1999 WL 637230, at *1 (S.D.N.Y. Aug. 19, 1999).
There are some circumstances that warrant a later date for the initiation of the limitations period under § 2255, none of which are availing here. Petitioner does not allege any newly removed impediment to his filing a § 2255 petition that would apply under subsection (2) nor does he allege any newly discovered facts that would apply under subsection (4). Section 2255(3) extends the statute of limitations until one year after "the date on which the right asserted [in the Petition] 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." As recognized by the Second Circuit inForbes v. United States, 262 F.3d 143, 145 (2d Cir. 2001), the opinionApprendi v. New Jersey, 530 U.S. 466 (2000) does not state it has a retroactive effect, nor has the Supreme Court since indicated thatApprendi has retroactive effect on cases on collateral review. The Supreme Court has interpreted § 2255(3) to require that the Supreme Court itself hold a new rule is retroactive to cases on collateral review. See Tyler v. Cain, 533 U.S. 656 (2001). Since Petitioner is unable to meet any of the requirements of § 2255 that would extend his date of initiation of the limitations period beyond March 6, 2000, his § 2255 petition is time-barred.
Petitioner contends that he was denied and received ineffective assistance of counsel for the failure of counsel not to raise the issue now brought. To succeed on such a theory, Petitioner must: (1) show that counsel's conduct fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) "affirmatively prove prejudice." Strickland v. Washington, 466 U.S. 668, 688, 693 (1984). The court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. "[T]he failure to make a meritless argument does not rise to the level of ineffective assistance." United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995).
Petitioner has not demonstrated either that his counsel was ineffective or any prejudice from counsel's failure to raise the arguments he raises in this § 2255 motion. Petitioner argues that his sentence is unconstitutional because his commission of an "aggravated felony" prior to his deportation was not separately placed in the record via a "prior felony information" pursuant to 21 U.S.C. § 851 to apprise Petitioner, Petitioner's lawyer or the Court of the prior convictions for enhancement purposes. There was no requirement that a Title 21 "prior felony information" be filed in Petitioner's case where he was convicted of an offense under Title 8. See, e.g., United States v. Whitaker, 938 F.2d 1551, 1552 (2d Cir. 1991) ("a § 851(a)(1) notice is required only where the statutory minimum or maximum penalty under Part D of Title 21 is sought to be enhanced, not where a defendant, by virtue of his criminal history, receives an increased sentence under the Sentencing Guidelines within the statutory range.") (emphasis in original); United States v. Metro, 421 F. Supp. 428, 430 (S.D.N.Y. 1976) ("Section 851 deals only with persons who stand convicted 'of offenses under this part.' 'This part' means Part D of . . . 21 U.S.C. § 841-51 ."). Therefore, the Government was not required to make a 21 U.S.C. § 851 filing, and Petitioner's counsel was not ineffective for failing to raise a meritless argument. See United States v. Javino, 960 F.2d 1137, 1145 (2d Cir.), cert. denied, 506 U.S. 979 (1992). Petitioner testified in Court that he had read or had read to him in Spanish the Government's letter written pursuant to United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991) which provided him with notice of how Petitioner's prior conviction would affect his sentencing under the Sentencing Guidelines. (1/6/00 Tr., 4.)
Petitioner's § 2255 motion is denied.
IT IS SO ORDERED.