Summary
noting that the courts in the Southern District have "unanimously found" that a "lack of familiarity with the legal system" does not merit equitable tolling
Summary of this case from Ford v. KamalOpinion
03 Civ. 3755 (RPP), 91 Cr. 827 (RPP)
October 2, 2003
James B. Comey, Southern District of New York for United States
OPINION AND ORDER
Defendant-Petitioner Mike Huang ("Huang") brings the current petition pro se pursuant to 28 U.S.C. § 2255, claiming (1) the Court's denial of his motion to dismiss the indictment after grant of a mistrial placed him in double jeopardy; (2) his trial counsel was ineffective; and (3) his sentence was illegal. Because Huang filed his petition nearly ten years after his conviction was affirmed, Huang's petition is time-barred and therefore denied.
Background
On September 27, 2001, Huang and two other co-defendants were arrested and charged with kidnapping and interstate and foreign travel or transportation in aid of racketeering enterprises in violation of 18 U.S.C. § 1201(c) and 18 U.S.C. § 1952, respectively. A jury trial on these charges began in January 1992. During trial it developed that an uncertified interpreter had been utilized and was not interpreting properly. On motion from Movant's counsel, a mistrial was declared on January 27, 1992. Thereafter, the Court denied the defendant's motion barring a retrial on double jeopardy grounds, and, upon interlocutory review, the Second Circuit upheld the decision with respect to defendant and one other defendant who had moved for a mistrial, but reversed as regards the two non-moving defendants.United States v. Huang, 960 F.2d 1128 (2d Cir. 1992). Huang also moved for severance, which motion was denied. The second trial commenced on May 11, 1992. On May 22, 1992, the jury delivered a verdict of guilty on two counts of kidnapping and one count of interstate and foreign travel or transportation in aid of racketeering enterprises. On November 6, 1992, Huang was sentenced to 235 months imprisonment with 5 years supervised release. Huang appealed, and the Second Circuit affirmed on April 27, 1993. U.S. v. Huang, 993 F.2d 1533 (2d Cir. 1993).
On May 27, 2003, over ten years after his appeal had been denied, Huang filed the current motion pursuant to 28 U.S.C. § 2255, claiming (1) violation of his Fifth Amendment right to due process when his motion barring a retrial was denied; (2) denial of effective assistance of counsel; and (3) improper determination of his sentence. On June 9, 2003, the Court issued an order requesting the government to respond to the petition. Both Movant and Respondent responded to the order.
Discussion
In 1996 Congress passed The Anti-Terrorism and Effective Death Penalty Act (AEDPA). One of the provisions of AEDPA limited when prisoners could file habeas corpus petitions under 28 U.S.C. § 2255. Accordingly, 28 U.S.C. § 2255 now states:
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. Additionally, the Second Circuit has held that there is a one-year grace period from April 24, 1996 until April 24, 1997 for prisoners whose convictions were final before AEDPA went into effect.Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
The first provision of the portion of 18 U.S.C. § 2255 quoted above is relevant here. The statutory time limit runs from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255. When a defendant does not file a petition for a writ of certiorari to the Supreme Court, the judgment becomes final when "the petitioner's time to seek a writ of certiorari from the Supreme Court has expired." Then v. United States, 126 F. Supp.2d 727, 730 (S.D.N.Y. 2001). A petitioner has ninety days from the date the Court of Appeals renders its decision to seek a writ of certiorari from the Supreme Court. Sup.Ct. R. 13.1.
In this case, the Second Circuit rejected Huang's appeal of his conviction April 27, 1993, and it became final ninety days later on July 27, 1993. Because his conviction became final before 1996 when AEDPA went into effect, the one-year grace period established by Ross applies. Huang filed his petition in May 2003, over six years after the statutory time limit.
Huang asserts that the statutory time limit should be equitably tolled, because he did not speak English and did not understand federal law when the time limit began to run. The Second Circuit has joined other circuits in holding that the statutory time limit of 28 U.S.C. § 2255 is a statute of limitations and not a jurisdictional bar. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). The Second Circuit has also determined that the one year time period of AEDPA may be subject to equitable tolling. Smith, 208 F.3d at 17.See also Calderon v. U.S. Dist. Ct. for the C.D. of CaL., 128 F.3d 1283, 1289 (9th Cir. 1997) ("Every relevant signal — from the Act's plain language, to its legislative history, to its structure-points in the same direction: [the] one year timing provision is a statute of limitations subject to equitable tolling, not a jurisdictional bar.");Martinez v. Kuhlman 1999 WL 1565177 at *4 (S.D.N.Y. 1999);Torres v. Miller 1999 WL 714349 at *6 (S.D.N.Y. 1999).
Huang claims his lack of education in federal legal proceedings and lack of access to a Chinese-English interpreter during imprisonment are circumstances that permit equitable tolling of the statute of limitations. As a general rule, "equitable tolling applies only in the `rare and exceptional circumstance[ ] . . . In addition, the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll." Smith v. McGinnis, 208 F.3d at 17 (2d Cir. 2000) (quoting Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999)). "[N]either a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling. . . . It is irrelevant whether the unfamiliarity is due to illiteracy or any other reason." Turner 117 F.3d at 392. See also Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000) (noting petitioner/appellant did not contest district court's ruling that inability to communicate in English was not a circumstance warranting equitable tolling).
Huang was suppled with a Chinese interpreter at all times during the court proceedings.
The district courts in the Southern District have unanimously found that inability to speak English and lack of familiarity with the legal system are not "rare and exceptional" circumstances, and thus are not grounds for equitable tolling. German v. United States, 209 F. Supp.2d 288, 293 (S.D.N.Y. 2002) (holding that lack of a Spanish law library and inability to understand English do not support equitable tolling); Duran v. United States, 2002 WL 867864 at *5 (S.D.N.Y. 2002) (failing to find Spanish-speaker's lack of familiarity with the English language a circumstance that would warrant equitable tolling); Zhang v. United States, 2002 WL 392295 at *3 (S.D.N.Y. 2002) (holding that lack of a legal assistance program at federal correctional institution and lack of law librarians who speak movant's native language of Chinese are not circumstances warranting equitable tolling); Ortiz v. Greiner, 2002 WL 265144 at *3, (S.D.N.Y. 2002) (holding that movant's lack of legal assistance and inability to speak English were not circumstances warranting equitable tolling); Tan v. Bennett, 2001 WL 823869 at *2 (S.D.N.Y. 2001) (finding that district courts in the Second Circuit "and elsewhere have unanimously held that lack of English proficiency is insufficient to justify the equitable tolling of the one-year limitations period"). Many prisoners are not familiar with the federal legal system and do not speak English. Duran, 2002 WL 867864 at *5 (acknowledging that most inmates could claim lack of familiarity with the English language). To toll the statute of limitations for all such prisoners while they learn English and educate themselves in the law, would defeat the limiting purpose of AEDPA. Fennel v. Artuz, 14 F. Supp.2d 374, 377 (S.D.N.Y. 1998).
In view of the unanimity of this district in finding that lack of education in the federal legal system and not speaking English do not constitute "rare and exceptional" circumstances, Huang's petition is not subject to equitable tolling and violates the AEDPA statute of limitations.
In any event, Huang's petition lacks merit. His first allegation is that he was subjected to double jeopardy. The Court's dismissal of Huang's motion to dismiss the indictment on the grounds of double jeopardy was affirmed by the Court of Appeals.United States v. Huang, 960 F.2d 1128 (2d Cir. 1992). Supported by U.S. Supreme Court and Second Circuit case law, the Court of Appeals held that a defendant's motion for a mistrial is not a bar to re-prosecution under double jeopardy, unless there is evidence of judicial or prosecutorial intent to provoke a mistrial. Id. at 1133 (citing United States v. Jorn, 400 U.S. 470, 485 (1971);Oregon v. Kennedy, 456 U.S. 667, 673 (1982); and United States v. Rivera, 802 F.2d 593, 599 (2d Cir. 1986)). The Court of Appeals found that any inadequacies in translation by an interpreter were not intentionally caused by the judge or the U.S. Attorneys, and thus there was no intentional misconduct on the part of the prosecution or the court. Huang at 1134. The issue was fully addressed on appeal and Huang presents no new issues.
Movant makes no showing of his second claim, ineffective assistance of counsel.
Movant's third claim is that he received a sentence enhancement above and beyond the required level. He rightfully states in his motion that the Sentencing Guidelines call for a base-level of twenty-four for kidnapping, the crime of which he was convicted, 18 U.S.C. § 1201(c). U.S. Sentencing Guidelines Manual § 2A4.1 (Nov. 2002). However, there were other factors that required enhancements of the sentence. Six points were added because of his request for ransom. (Sentencing Hr'g Trs. at 29-30) and USSG § 2A4.1(b)(1). Two points were added because of the serious bodily injury sustained by the victim. (Sentencing Hr'g Trs. at 30) and USSG § 2A4.1 (b)(2)(B). Two points were added because of the use of a weapon and three points (rather than the pre-sentencing report's recommended four) were added for the Movant's leadership role in the crime. (Sentencing Hr'g Trs. at 30) and USSG § 3Bl. 1(b). This makes for a total of 37 points and the defendant was sentenced accordingly. The addition of points for use of the weapon, the Movant's leadership role, and the victim's injuries were vigorously discussed in open court at the sentencing hearing on October 29, 1992. Huang's lawyer also addressed these three sentencing issues in his appeal and the Second Circuit affirmed the sentence. United States v. Huang, No. 92-1674, slip op. at 3-4 (2d Cir. Apr. 27, 1993). As the Movant was sentenced appropriately according to the guidelines, his third claim has no merit.
Conclusion
For the forgoing reasons, Huang's petition is denied.