Opinion
05 Civ. 3974; 99 Cr. 1112 (LAP).
May 1, 2007
OPINION AND ORDER
Petitioner Francisco Gonzalez-Ramos ("Petitioner"), by his pro se petition for a writ of habeas corpus pursuant to 28 U.S.C § 2254, seeks an Order vacating the sentence imposed following his conviction by this Court on July 11, 2000, on the basis of his guilty plea.
Petitioner, by his amended petition dated August 17, 2006, claims that his counsel at sentencing, Frank McClain-Sewer, Esq., rendered ineffective assistance by failing to file a notice of appeal on Petitioner's behalf. In addition, Petitioner argues that: (i) the Indictment was legally invalid, (ii) an AUSA committed fraud upon the Court by leading the Court to believe that the Indictment was obtained from the grand jury, (iii) Petitioner was, and continues to be, entitled to the benefit of the safety valve statute, and (iv) the enhancement imposed at sentencing, based on the Court's fact-finding, violated his Sixth Amendment Right to a jury trial.
STATEMENT OF FACTS
A. The Apartment Fire and Initial Investigation
This case arises out of a fire which broke out at 1490 Metropolitan Avenue, Apartment 4H in the Bronx on August 21, 1999. In the course of responding to the fire, firefighters discovered what appeared to be a significant quantity of narcotics in a closet in the bedroom of the apartment. Officers from the New York City Police Department ("NYPD") who had been dispatched to the fire scene eventually recovered approximately 91 kilograms of cocaine in brick-shaped packages. The officers also recovered the following items: an electronic scale; two boxes of money wrappers; a .40 caliber magazine and rounds of ammunition; a video camera and four videotapes; and two photo albums depicting an Hispanic man, later identified as Petitioner, and an Hispanic woman. (Presentence Report ("PSR") ¶¶ 9-12).
Searches of the fire scene by NYPD detectives revealed the following additional items, among others: a Drug Enforcement Administration ("DEA") voucher reflecting the seizure of $116,000 cash from an individual in Cincinnati, Ohio; identification documents in the name of "Paul Banks;" a receipt reflecting the purchase of two electronic money counters; handwritten ledgers of the sort commonly employed by dealers to record drug transactions; and parking tickets for a 1996 Nissan Quest van, New York license plate number X680CR. (Id.)
Shortly after responding to the scene of the apartment fire, NYPD detectives interviewed the occupants of neighboring apartments to solicit information concerning the occupants of 1490 Metropolitan Avenue, Apartment 4H. The neighbors were shown certain of the photographs of Petitioner and the Hispanic woman from the photo albums found at the scene of the fire. They confirmed that Petitioner and the female were the occupants of Apartment 4H, as did a review of the videotapes recovered from the apartment after the fire, which depicted both Petitioner and the Hispanic woman in the apartment. (PSR ¶¶ 12-13).
B. The Follow-Up Investigation and CW-1
In the course of further investigation, NYPD detectives contacted the DEA's Cincinnati, Ohio field division and learned that on August 8, 1999, an individual was arrested in Cincinnati, Ohio on a traffic violation and that $116,000 was recovered in a search of that individual's vehicle. The individual ("CW-1") eventually agreed to cooperate with the Government and informed investigators that the $116,000 was an intended payment to a Mexican man named "Paul" in New York City for a large marijuana transaction. CW-1 stated that for more than one year, he/she had regularly traveled to Philadelphia and New York to purchase large quantities of marijuana from "Paul," "Paul's" girlfriend and other Mexicans working with "Paul." CW-1 indicated that he/she would arrange each marijuana transaction by paging "Paul" using a pager number "Paul" had given him/her. CW-1 would then drive to Philadelphia or New York and meet with "Paul," his girlfriend, and his associates at a prearranged site. During these meetings, "Paul" would deliver to CW-1 hundreds of pounds of marijuana to be taken to Cincinnati to be sold by CW-1. At the same time, CW-1 would deliver to "Paul" thousands of dollars as payment for previously delivered marijuana loads. The smallest amount CW-1 ever delivered to "Paul" on one occasion was approximately $30,000. The largest amount was approximately $200,000. CW-1 advised the Government that he/she had purchased more than 1,200 pounds of marijuana from "Paul" in this way, at an average price of $700 per pound, since approximately 1998.
As discussed further below, CW-1 identified Petitioner and the Hispanic woman, pictured in a photograph recovered from the fire at 1490 Metropolitan Avenue, as "Paul" and his girlfriend.
CW-1 further stated that after the $116,000 was seized, he/she traveled to New York and provided "Paul" with a copy of a DEA voucher reflecting the seizure so that "Paul" could explain the loss of the money to his bosses in Mexico. CW-1 furnished DEA agents with the pager number he/she used to contact "Paul" for the purpose of engaging in narcotics transactions. He/she also identified a photograph of Petitioner and the Hispanic woman recovered from the fire at 1490 Metropolitan Avenue as that of "Paul" and his girlfriend.
In later interviews, CW-1 informed the Government that on one occasion, Petitioner advised another co-conspirator ("CC-1") and him/her that he (Petitioner) was expecting to receive a significant quantity of cocaine and asked CW-1 and CC-1 whether they or anyone they trusted was interested in purchasing kilogram quantities of cocaine at a price of $23,000 per kilogram. They declined.
CW-1 also indicated that Petitioner told him/her, in substance, that he regularly had to drive from New York to Chicago to deliver cocaine.
C. Petitioner's Arrest and Post-Arrest Statements
On September 3, 1999, NYPD detectives placed a call to the pager number for Petitioner which CW-1 had furnished. A responsive page was received and traced to the telephone number of a motel in Queens. NYPD detectives then established surveillance in the area of the motel, and identified a 1996 Nissan Quest van, New York license plate number X680CR, parked in the motel parking lot. This license number matched the vehicle which was the subject of the parking tickets found at the scene of the fire at 1490 Metropolitan Avenue. Shortly after the officers established surveillance, they saw Petitioner leaving the motel with an Hispanic man later identified as David Vega. Vega placed some items in the rear of the vehicle and returned to the motel. Petitioner later entered the driver's side of the vehicle and attempted to drive away. At that point, the officers moved in and placed Petitioner under arrest. A search of Petitioner's van performed after his arrest revealed, among other items, more than $400,000 in U.S. currency, handwritten ledgers which appeared to reflect drug transactions, and false identification documents.
After being advised of his constitutional rights, Petitioner made several post-arrest statements. Among other things, he stated that he made up the name "Paul Banks" and that his real name is Francisco Ramos. He also stated that he did not know anything about a fire or about 91 kilograms of cocaine. He admitted, however, that he was at 1490 Metropolitan Avenue, Apt. 4H eight or nine times or maybe ten or twenty times but that he did not live there. Later, Petitioner stated that he could get the arresting officers promoted because he could pick up more money that day and could find out more information about a 3,000 kilogram delivery of cocaine.
A further search of the van following Petitioner's arrest revealed two sets of keys. Each set included a key which opened the door to 1490 Metropolitan Avenue, Apartment 4-H.
D. The Indictment
On June 29, 2000, Superseding Indictment S1 99 Cr. 1112 (LAP) was filed, charging Petitioner in three counts with: conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine and more than 50 kilograms of marijuana, in violation of Title 21, United States Code, Section 846 (Count One); possession with intent to distribute more than five kilograms of cocaine, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B) (Count Two); and maintaining a place for the purpose of distributing cocaine, in violation of Title 21, United States Code, Section 856 (Count Three).
E. Petitioner's Motion to Suppress Post-Arrest Statements
In a pretrial motion, Petitioner moved to suppress his post-arrest statements. In support of that motion, he submitted an affidavit claiming that the officers who arrested him never advised him of his constitutional rights. (Gonzalez-Ramos Suppression Aff.).
After holding a suppression hearing on May 12, 2000, the Court denied Petitioner's motion to suppress. In doing so, the Court credited the testimony of one of the arresting officers who testified that after being placed under arrest, Gonzalez-Ramos was advised of his rights, orally, and acknowledged that he understood those rights and agreed to answer the officers' questions (May 12, 2000, Tr. Ex. 3 at 8-11), and that Petitioner was advised of his rights a second time, both orally and in writing, and that he acknowledged having been advised of his rights and his willingness to answer questions by signing an advice of rights form, which was also introduced at the hearing. (May 12, 2000, Tr. Ex. 3 at 20-23; Advice of Rights Form).
F. The Pre-Trial Plea Negotiations
On several occasions during the pre-trial process, Petitioner indicated his intention to plead guilty. Each time he did so, the Government tendered Petitioner a plea offer, either orally or in writing. On at least one occasion, the Court scheduled Petitioner's plea. Each time, however, Petitioner ultimately rejected the plea offer and appeared ready to take the Government to trial. (Government's November 21, 2000 sentencing letter at 6).
On July 7, 2000, ten days before the scheduled July 17, 2000 trial in this case and after having previously rejected the Government's earlier plea offers, Petitioner once again advised the Government that he intended to plead guilty. The Government urged him to plead guilty that day or the next, July 8, 2000. It explained that if he did not enter his plea at that time, significant resources would have to be expended to bring in three witnesses from California to testify at a pretrial hearing scheduled for July 12, 2000. (Government's November 21, 2000 sentencing letter at 6).
In response, Petitioner advised the Government that he would not be prepared to plead guilty until July 11, 2000 at the earliest — one day before the scheduled hearing and six days before the July 17, 2000 trial date. In a letter dated July 7, 2000, a copy of which was forwarded to Petitioner's counsel, the Government articulated its intent to oppose any motion by the defendant for a reduction in offense level based on acceptance of responsibility. The Government then continued with its pretrial preparations, which included transporting the three witnesses from California and preparing those witnesses for the July 12 hearing. By July 11, 2000, the Government's pre-trial preparations were substantially complete. (Government's November 21, 2000 sentencing letter at 6).
G. Petitioner's Guilty Plea
On July 11, 2000, Petitioner pleaded guilty to all counts of the Superseding Indictment without the benefit of a plea agreement. In his plea allocution, Petitioner admitted that his real name was Benjamin Delgado. (July 11, 2000 Tr. at 2). He also admitted to his participation in the sale of more than 1,200 pounds of marijuana in connection with the charged conspiracy. (Id. at 14-15).
H. Petitioner's Safety-Valve Proffer
On September 26, 2000, Petitioner participated in a safety valve proffer with the Government. Among other things, he disclosed having been previously involved in the distribution of more than 3,000 pounds of marijuana in California. (Proffer Report at 1-3). He also admitted that he lived in the apartment at 1490 Metropolitan Avenue with a Mexican man named Joe Lopez, and that he and Lopez sold large quantities of marijuana out of the apartment to customers in New York, Ohio and Pennsylvania. (Proffer Report at 4-5). Petitioner identified CW-1 as one of those customers. (Proffer Report at 4-5). He also described in detail how he arranged the delivery of hundreds of pounds of marijuana to his customers and picked up thousands of dollars in profits from earlier marijuana sales. (Proffer Report at 4-5). And he explained that at one point he and Lopez expected to be supplied with 30 tons of marijuana from the Arellano-Felix organization, one of Mexico's most notorious drug cartels. (Proffer Report at 5). Petitioner informed investigators that Lopez's partner, Ismael LNU, worked for the Arellano-Felix cartel. (Proffer Report at 5).
Petitioner claimed to have been informed by Lopez that he and Lopez could receive large shipments of cocaine from the Arellano-Felix organization. (Proffer Report at 5). He claimed that it was Lopez who arranged for the 91 kilograms of cocaine to be delivered to the apartment at 1490 Metropolitan Avenue. (Proffer Report at 5). He admitted that he knew the cocaine was to be delivered to the apartment and that he had offered to sell some of the cocaine to several of his customers. (Proffer Report at 5). He also admitted discussing with Lopez how they could make money selling the cocaine, receiving it at a cost of $13,000 per kilogram and selling it at a cost of $23,000 per kilogram. (Proffer Report at 5). Petitioner claimed that he was out of town meeting with a potential drug supplier when the fire occurred and that he only discovered the fire after he returned to New York. (Proffer Report at 6). Petitioner admitted that at Lopez's request he took a member of the Arellano-Felix organization to the apartment to take pictures of the fire scene. (Proffer Report at 6). The Arellano-Felix representative, a Mexican man, was sent by the organization to investigate the loss of the cocaine. (Proffer Report at 6). Petitioner admitted that after showing the cartel representative the fire scene, he drove him to a hotel where the representative made calls to Mexico discussing the value of the cocaine lost and the possibility that Lopez had set the fire. (Proffer Report at 6).
These statements were confirmed by independent evidence developed during the Government's investigation. As to certain other matters raised in the proffer, however, Petitioner provided false or incomplete information. (Proffer Report at 6). He eventually cured false or incomplete statements after being confronted by the Government with evidence to the contrary. While the effort to arrive at the truth was at times strained and the proffer did not unfold in the ideal manner, the Government nevertheless concluded that Petitioner satisfied his obligations under Title 18, United States Code, Section 3553(e).
I. The Presentence Report
The PSR calculated a base offense level of 36. (PSR ¶ 26). The PSR recommended a two-level reduction pursuant to Section 2Dl.l(b)(6) because Petitioner met the requirements of the safety-valve provision. (PSR ¶ 27). However, Probation also recommended a two-level increase in the offense level for obstruction of justice due to Petitioner's false statements to police officers at the time of his arrest. (PSR ¶ 30). Finally, the PSR recommended a two-level reduction in the offense level for acceptance of responsibility, based on the defendant's plea allocution, but stated that an additional one-level reduction was not warranted because Petitioner did not enter his guilty plea in a timely manner as required in Section 3El.l(b)(2). Thus, the PSR calculated the total offense level to be 34, which, because the defendant was in Criminal History Category I, yielded an applicable Guidelines range of 151-188.
J. Petitioner's Attempts To Cooperate
After Petitioner pleaded guilty, but prior to his sentencing, Petitioner's attorney contacted the Government on his client's behalf in an effort to persuade the Government to provide Petitioner with an opportunity to cooperate and, potentially, receive the benefit of a 5K.1 letter. Eventually, the Government agreed to meet with Petitioner and arranged for him to make monitored telephone calls from its Office. In addition, Petitioner's sister provided information to the Government about the whereabouts of one of Petitioner's co-conspirators. Ultimately, however, Petitioner's cooperation did not result in substantial assistance, and the Government declined to proceed further. Nevertheless, the Government agreed that Petitioner's offense level should be reduced by three points for his acceptance of responsibility (as opposed to the two-level reduction that had been recommended by Probation and previously endorsed by the Government).
K. Petitioner's Sentencing
On April 2, 2002, this Court sentenced Petitioner, principally, to 135 months imprisonment. This Court accepted the findings in the PSR but, based on the Government's recommendation, applied an additional one-level reduction to the total offense level for acceptance of responsibility. Consequently, the Court calculated Petitioner's total offense level to be level 33 and the applicable Guidelines range to be 135 to 168 months.
ARGUMENT
Ineffective Assistance Claim Is Both Time-Barred And Meritless A. Applicable Law
1. Ineffective Assistance On AppealIn order to determine whether counsel's assistance was ineffective, "[f]irst, the defendant must show that counsel's performance was deficient. This requires showing that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, "the defendant must show prejudice from counsel's performance. Id.
The standard set forth under Strickland v. Washington applies to claims that counsel failed to file a notice of appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000). Thus, "when counsel fails to file a requested appeal, a defendant is entitled to [a new] appeal without showing that his appeal would likely have had merit." Peguero v. United States, 526 U.S. 23, 28 (1999). "This is so because 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. at 477. "In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken . . . [i]f counsel has consulted with the defendant . . . [c]ounsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal." Id. at 478. Moreover, "counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Id. at 480. Where counsel fails to consult with the defendant in such cases, in order to meetStrickland's prejudice prong, "a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal he would have timely appealed." Roe v. Flores-Ortega, 528 U.S. at 484.
2. The Statute of Limitations Under The AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), established a one-year statute of limitations for motions filed under Section 2255. See 28 U.S.C. § 2255. The one-year limitations period begins to 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.
When a defendant, alleging ineffective assistance of counsel based on counsel's failure to file a notice of appeal, claims that the statute of limitations under the AEDPA should be tolled under § 2255(4) because the facts supporting the claim could not have been discovered within one year of when the judgment of conviction became final "[t]he proper task . . . is to determine when a duly diligent person in petitioner's circumstances would have discovered that no appeal had been filed." Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000). The relevant inquiry should focus on "when the factual predicate of a claim could have been discovered," as opposed to "the date on which the petitioner has in his possession evidence to support his claim." Rodriguez v. People of the State of New York, 2003 WL 289598, *15 (S.D.N.Y. Feb. 11, 2003) (collecting cases). "The statute does not require the maximum feasible diligence, only due, or reasonable diligence." Id. at 190, n. 4; accord, e.g., Aron v. United States, 291 F.3d 708, 712 (11th Cir. 2002) ("Due diligence . . . does not require a prisoner to undertake repeated exercises in futility or to exhaust every imaginable option, but rather to make reasonable efforts.").
Thus, the "due diligence" standard constitutes "an objective test, equating 'due' with 'reasonable diligence.'" Rodriguez v. People of the State of New York, 2003 WL 289598, at *17 (quotingWims v. United States, 225 F.3d at 190 n. 4). This test requires courts to consider certain external requirements such as, for example "the conditions of [the petitioner's] confinement." Wims v. United States, 225 F.3d at 190-91. But "courts should not consider such subjective factors as the petitioner's intelligence, education, language skills, or mental stability."Rodriguez, 2003 WL 289598, at *17. See e.g. Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) ("[t]ime begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance.").
Accordingly, because "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. at 476, a petitioner is not required "to check up on his counsel's pursuit of an appeal . . . the very day on which [petitioner's] conviction becomes final absent appeal," Wims v. United States, 225 F.3d at 190. However, "a duly diligent person" does not require "three and a half years . . . to discover that counsel had not filed a notice of appeal. . . ." Zapata v. United States, Nos. 90 Cr. 943, 99 Civ. 00085, 2000 WL 1610801 at *3 (S.D.N.Y. Oct. 27, 2000); see Tineo v. United States, 2002 WL 1997901 at *2 (S.D.N.Y. Aug. 29, 2002) ("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."); Gonzalez v. United States, 02 Civ. 2733, 2002 WL 31512728 at *4 (S.D.N.Y. Nov. 8, 2002) ("a 46-month delay" does not comport with a "reasonable concept of due diligence" even accounting for "a petitioner's pro se status and the realities of prison life.");Plowden v. Romine, 78 F.Supp.2d 115, 119 (E.D.N.Y. 1999) (denying equitable tolling of § 2244(d)(1), because petitioner's 17-month delay in checking on status of state appeal proved lack of diligence); Montenegro v. United States, 248 F.3d 585, 590-93 (7th Cir. 2001) (declining to decide whether § 2255 petitioner actually requested attorney to file direct appeal, but affirming decision that petition was time barred because, among other things, the fact "[t]hat an appeal had not been filed was a matter of public record, which reasonable diligence could have unearthed."), overruled on other grounds, Ashley v. United States, 266 F.3d 671 (7th Cir. 2001);Rodriguez v. People of the State of New York, 2003 WL 289598 at 19 ("it was simply not 'reasonably diligent' for [Petitioner] to wait over 18 months before inquiring into the status of his appeal.").
B. Discussion
1. Gonzalez-Ramos's Petition Is Time-Barred
a. Similar Habeas Petitions Have Been Time-Barred
Petitioner, relying on Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000), argues that his petition should not be time-barred because, under Wims, he was not required to "check up on his counsel's pursuit of an appeal." (Petitioner's September 4, 2006 Rebuttal to the Government's Reply at 2). Thus, Petitioner argues, Wims is on "all fours" with his case and compels the Court to adjudicate the merits of his claim. Petitioner's reliance on Wims, however, is unavailing.
In Wims, the Court of Appeals noted that identifying the date on which a duly diligent person in the petitioner's circumstances would have discovered his counsel's failure to appeal is a "fact-specific issue" depending upon, among other things "the conditions of [the petitioner's] confinement." Id. at 190-91. Thus, the Wims Court held that, taking into account the reality of conducting legal research in the prison system, filing a habeas petition five months after the expiration of the one year statute was "not so clearly unreasonable that it plainly appears from the face of appellant's petition and supporting papers that he is barred from habeas relief." Wims v. United States, 225 F.3d at 191.
The Court of Appeals' reluctance to preclude, on its face, a habeas petition filed seventeen months after the date of conviction became final, however, is not on "all fours" with Petitioner's failure to file his petition until thirty-six months after his conviction became final. To the contrary, as indicated above, when faced with similar delays by prisoners in filing habeas petitions, courts in this district and elsewhere have repeatedly found those petitions to be time-barred. Unlike the five-month delay in Wims (beyond the one-year limitations period), the twenty-four-month delay in this case is, on its face, "clearly unreasonable" and should, alone, operate to bar Gonzalez-Ramos from habeas relief. This is the approach followed in Tineo v. United States, 2002 WL 1997901, at *2 (denying a petitioner's habeas claim on grounds that "[a] duly diligent person in [the petitioner'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."); see Gonzalez v. United States, 2002 WL 31512728, at *4 (finding a 34 month delay beyond the one year statute of limitations to be unreasonable) ("Even taking into account petitioner's pro se status and the realities of prison life, I cannot in good conscience find that a 46-month delay comports with a reasonable concept of due diligence.").
In Zapata v. United States, Nos. 90 Cr. 943, 99 Civ. 00085, 2000 WL 1610801 (S.D.N.Y. Oct. 27, 2000), the petitioner, after having pleaded guilty to certain drug related charges and receiving a sentence of 135 months' imprisonment (like the petitioner in this case), filed a habeas petition alleging that his counsel rendered ineffective assistance by failing to file a timely notice of appeal. Zapata v. United States, 2000 WL 1610801, at *2. The Court ordered Zapata to show cause as to why his habeas petition, filed three and a half years after his judgment became final, was not barred by the statute of limitations included in § 2255. Id. at *1. In response, the Government submitted a letter brief arguing that the motion was time-barred. Relying upon Wims, Judge Schwartz undertook to determine "when a duly diligent person in Zapata's circumstances would have discovered the facts demonstrating the alleged ineffective assistance of counsel." Id. at *2. The Court noted that "[a] convicted defendant need not immediately 'check up' on whether counsel has timely filed a notice of appeal," Id. (quoting Wims, 225 F.3d at 190). However, the Court found that "nonetheless . . . a duly diligent person in Zapata's circumstances would not have needed three and a half years . . . to discover that counsel had not filed a notice of appeal. . . ."Id; see also Rodriguez v. People of the State of New York, 2003 WL 289598 at 19 ("it was simply not 'reasonably diligent' for [Petitioner] to wait over 18 months before inquiring into the status of his appeal."); Plowden v. Romine, 78 F.Supp.2d 115, 119 (E.D.N.Y. 1999) (denying equitable tolling of § 2244(d)(1), because petitioner's 17-month delay in checking on status of state appeal proved lack of diligence).
Although the petition in Zapata was originally filed under 28 U.S.C. § 2241, the District Court directed that it be construed as a motion under § 2255.
Petitioner, who, like Zapata, was sentenced to a prison term of 135 months after pleading guilty to drug charges, has failed to demonstrate that he could not have discovered his counsel's failure to file a notice of appeal more than one year prior to the date on which he filed his petition, through the exercise of due diligence. Petitioner claims he learned of the timeliness requirement for filing a notice of appeal from "prison law clerks," "just" prior to filing his habeas petition. (Id.). However, "[i]gnorance of the law (or court procedures) . . . does not make it reasonable to wait over two years to determine the status of an appeal." Rodriguez v. People of the State of New York, 2003 WL 289598, at 18; see, e.g., Smith v. McGinnis, 208 F.3d 13, (2d Cir. 2000) (petitioner's pro se status in state collateral proceedings did "not merit equitable tolling"); Gillyard v. Herbert, 01 Civ. 3427, 2003 WL 194692 at *3 (S.D.N.Y. Jan. 30, 2003) (petitioner's pro se status, and concomitant ignorance of the law, did not equitably toll the AEDPA) (collecting cases); Francis v. Miller, 198 F.Supp.2d 232, 235 (E.D.N.Y. 2002) (petitioner's pro se status and ignorance of law did not equitably toll AEDPA); Rhodees v. Senkowski, 82 F.Supp.2d 160, 172 n. 7 (S.D.N.Y. 2000) (collecting cases). Thus, like in Zapata, Gonzalez, Tineo, and Rodriguez, Petitioner's 36 month delay is similarly unreasonable.
See Rodriguez v. People of the State of New York, 2003 WL 289598 at 12 (noting that under Wims v. United States, "the Court must answer two questions: (1) on what date would a duly diligent person in petitioner's circumstances have discovered that no appeal had been filed (the 'Due Diligence Discovery Date'), and (2) did [the petitioner] file his habeas petition within one year after the Due Diligence Discovery Date.").
b. Petitioner's Claim That He Could Not Have Discovered His Counsel's Alleged Ineffective Assistance Earlier is Unsupported
The facts that Petitioner sets forth in support of his petition actually undermine it. For example, he asserts that prison law clerks advised him, only in April 2005, of the timeliness requirement for filing notices of appeals. This claim, however, suggests that Petitioner knew that a notice of appeal had not been filed and that his appeal was not pending, sometime before learning of the timeliness requirement. In any event, Petitioner's statement regarding what he learned from the prison law clerks explains neither when Petitioner learned that a notice of appeal had not been filed nor when he learned that his appeal was not pending.
Furthermore, the question of when Petitioner actually learned his appeal was not pending, or that a notice of appeal had not been filed, is immaterial. As stated above, the pertinent question is whether a diligent person in Petitioner's circumstances would have discovered that no appeal had been filed more than a year prior to the date on which Petitioner's petition was filed. The answer to that question is yes. The status of Petitioner's appeal was a matter of public record. Had Petitioner been exercising reasonable diligence, he would have obtained a docket sheet and determined the status of his appeal, including whether or not a notice of appeal had been filed. A diligent person in Petitioner's circumstances would not have required two years in addition to the one year provided under the statute of limitations to execute the simple task of obtaining and checking a docket sheet. See Montenegro v. United States, 248 F.3d at 593 ("That an appeal had not been filed was a matter of public record, which reasonable diligence could have unearthed."); cf. Mandarino v. United States, No. 98 Civ. 490 (LBS), 1998 WL 729703, at *2 (S.D.N.Y. Oct. 16, 1998) (granting respondent's motion to dismiss for untimeliness, without an evidentiary hearing, in part because petitioner should have discovered that petition for certiorari had been denied by consulting case reporters.); see also Hizbullahankhamjon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) ("[E]ven assuming that the alleged deprivation of access to his legal materials and the law library constituted an 'extraordinary circumstance' warranting equitable tolling, petitioner cannot show that this extraordinary circumstances prevented him from filing a timely habeas petition."). Accordingly, the delay in this case was unjustified, and the petition is denied as time-barred.
c. Petitioner's Claims About His Interactions With Counsel Are Internally Inconsistent
Petitioner also claims that his attorney informed him during a prison visit, that the financial cost of an appeal would be approximately $20,000 and that Petitioner replied that he did not have the money to do the appeal (Petitioner's June 1, 2005 Affidavit at ¶¶ 4-5), suggesting that this was the reason why counsel abandoned his representation of Petitioner and neglected to file a notice of appeal. However, in his August 17, 2006 submission, Petitioner explains that he and counsel reached an agreement pursuant to which he would pay $5,000 and then pay the remaining $15,000 as time progressed. (Petitioner's Brief, dated August 17, 2006 at 7). Thus, Petitioner now concedes that McClain-Sewer did, in fact, continue to represent him — indeed, he did so until as recently as April 8, 2005, just days before the instant petition was filed. (Petitioner's June 1, 2005 Affidavit at ¶ 6, Appendix A).
Petitioner also claims that Appendix A to his June 1, 2005 Affidavit, a letter dated April 8, 2005, from McClain-Sewer to Petitioner's family, is evidence that McClain-Sewer was continuing to mislead Petitioner into believing that he was representing him on appeal. (See Petitioner's June 1, 2005 Affidavit at ¶ 6, Appendix A). This claim is flatly contradicted by the express language of the April 8, 2005 letter. In that letter, McClain-Sewer specifically states that Petitioner's6 case "became final before the new Supreme Court cases were decided" and that the argument he was developing would have to be "sophisticated and specific because the Court of Appeals has already held that some of these Supreme Court cases cannot be applied retroactively, meaning to cases like Ben's which became final before the new Supreme Court cases were decided." (Id., Appendix A). Here, McClain-Sewer is discussing work on a brief in support of a habeas petition, not an appeal. In the preceding paragraph of that letter, in a reference relating to the case McClain-Sewer was handling for Petitioner's brother, McClain-Sewer explicitly refers to his brother's "habeas brief." Thus, the context and language of this letter fails to support Petitioner's claim that his attorney failed to file a notice of appeal and then misled him into believing that he was, in fact, handling his appeal.7 Accordingly, Petitioner's petition is denied as time-barred.
Petitioner's Remaining Claims Are Time Barred And Meritless
In his August 17, 2006 submission, Petitioner raises four additional claims. First, he claims that the Superseding Indictment in which he was named is legally invalid because it was not returned by a grand jury in accordance with Federal Rule of Criminal Procedure 6(f). (August 17, 2006 Brief at 11). Second, Petitioner claims that an AUSA committed fraud on the Court by leading the Court to believe that the Superseding Indictment in this case was returned by a grand jury. (Id. at 14). Third, Petitioner claims that he continues to be entitled to the full benefit of the safety valve. (Id. at 17). Fourth, Petitioner argues that he received an illegal sentence based on the two-level obstruction enhancement the Court applied because the enhancement was based on judicial fact finding, in contravention of United States v. Booker, 125 S. Ct. 738 (2005). (Id. at 20).
All of these claims are time-barred. Petitioner's judgment of conviction was entered on April 5, 2002 and modified on April 9, 2002. Given that no appeal was filed, the judgment became final on April 19, 2002. As a consequence, Petitioner's time to file a habeas petition expired on April 19, 2003. These claims, raised for the first time in Petitioner's August 17, 2006 submission — more than two years later than permitted under the statute — are therefore untimely and must be dismissed. Raphaela v. United States, 02 Civ. 6255, 2004 WL 203012 (S.D.N.Y. Feb. 3, 2004).
Petitioner's claim that the Superseding Indictment was not returned by a grand jury is false. Indictments are returned only when the grand jury foreperson appears, in Magistrate Court, with a copy of a signed indictment and a True Bill, and affirms as much in open court. The True Bill may be made public only pursuant to a Court order. Petitioner seems to believe that the Superseding Indictment must itself be a True Bill, which is not the case.
Petitioner's related claim that an AUSA misled the Court to believe the Superseding Indictment was valid when, allegedly, it was not, is (in light of the foregoing) necessarily meritless.
As to Petitioner's claim that he was entitled to the "full benefit" of the safety valve, Petitioner did, in fact, receive a two-level departure, which constituted the "full benefit" to which he was entitled. See PSR ¶ 27; U.S.S.G. § 2Dl.l(b)(6) (1998 edition of the Guidelines Manual).
Finally, because Petitioner was sentenced in April 2002, his case became final long before the Supreme Court's Booker decision was issued in 2005. Consequently, Booker, which is not retroactively applicable to final judgments, see Guzman v. United States, 404 F.3d 139 (2d Cir. 2005), has no bearing on this case.
CONCLUSION
For the reasons set forth above, it is hereby ORDERED that the Petition is dismissed.The Clerk of the Court shall mark this action closed and all pending motions denied as moot.
As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c); see Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED: