Opinion
Civil Action No. 98-57 (JBS)
February 10, 2000.
Joyce C. London, Esquire, New York, NY., and Howard M. Barman, Esquire, Garces Grabler, Trenton, N.J., Attorneys for Petitioner.
Robert J. Cleary, United States Attorney, By: Deborah J. Gannett, Assistant United States Attorney, United States Attorney's Office, Newark, N.J., Attorney for Respondents.
OPINION
This is an action brought by petitioner Robert Libutti for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Libutti, a federal prisoner serving 60 months imprisonment imposed by this Court on December 2, 1994, now moves the Court to vacate his sentence as to Count One (evasion of payment of income taxes) on the grounds that he was denied effective assistance of counsel at both sentencing and appeal when his lawyer failed to object to an allegedly incorrect calculation of his Sentencing Guidelines base offense level. He further moves the Court to vacate his sentence in its entirety on the ground that it was imposed in violation of the Eighth Amendment of the United States Constitution due to his ongoing health problems.
The primary issues to be decided for the purposes of this petition are (1) whether Libutti's petition was filed beyond the one-year limitation period of 28 U.S.C. § 2255, and, if so, whether it should nevertheless be considered because of extraordinary circumstances equitably tolling § 2255's statute of limitations; and (2) whether the allegedly poor quality of care that Libutti would receive while in prison contradicts this court's expectation at sentencing, in violation of the Eighth Amendment. For reasons discussed below, the Court finds this petition is timely as to petitioner's Eighth Amendment ground, and that it is untimely and not equitably tolled with respect to petitioner's Sentencing Guideline calculation ground. On the merits, the Court will deny petitioner's Eighth Amendment ground.
BACKGROUND
Petitioner was the subject of one of the largest prosecutions for evasion of payment of federal income taxes in the history of this District, with total tax deficiencies calculated at $2,036,561.07. (Resp't's Ex. A, December 14, 1994 Sentencing Tr. at 54:12-13; Ex. D, Presentence Investigation Report at 18.) He also engaged in bank fraud causing losses of $1.25 million to a bank, in conspiracy with the bank's president, Theodore Kruckel.
Until his imprisonment, Libutti was a thoroughbred horse broker, consultant, and gambler, and enjoyed great success and income from the operation of his stable Buck Chance Stable. He had significant problems with the Internal Revenue Service, however, and in the early 1980s, a civil proceeding to determine his tax liability was tried in tax court. His liability was determined, and a payment schedule was set, but Libutti still refused to pay. In the years that followed, Libutti earned millions, including $3 million in 1987 and $1 million in 1988, but made no payments on his tax returns for those years. Moreover, he sheltered his assets so that auditors could not identify them for attachment, while living a lavish lifestyle.
In addition to his IRS troubles, in 1986, Libutti also ran afoul of bank regulators by exceeding the limits for loans to a single borrower. Having taken so many loans that he had exceeded allowable limits, Libutti and Urban National Bank ("UNB") President Theodore Kruckel, a personal friend of Libutti's, set up a fraudulent scheme to allow Libutti to take out additional sums to pay down his existing loans. Libutti and Kruckel met with James Roberts, an unemployed car salesman, who agreed to act as a stand-in for Libutti — signing for a loan and then handing to Libutti the $1.25 million loan proceeds. Roberts signed for the loan on September 15, 1986, listing Libutti's racehorse Groovy as collateral. Libutti used some of the proceeds to pay down outstanding loans, gave a portion to Kruckel, and kept the rest. He ultimately defaulted upon the entire $1.25 million loan.
After this scheme came to light, Libutti was charged by indictment on January 14, 1994. Count One charged that in or around July 1986 until the filing of the indictment, Libutti evaded the payment of taxes for the years 1970, 1971, and 1988 in violation of 26 U.S.C. § 7201. Counts Two and Three charged the willful failure to pay taxes for the years 1987 and 1988 in violation of 26 U.S.C. § 7203. Count Four charged conspiracy to commit bank fraud in violation of 18 U.S.C. § 371, and Count Five charged bank fraud in violation of 18 U.S.C. § 1344.
Following a month-long jury trial in this Court, Libutti was found guilty on all Counts. After several postponements, Libutti, who suffers from an acute panic disorder, claustrophobia, and cardiac disease, asked for and received permission to be sentenced in absentia, citing his poor physical and mental health as reasons. United States v. Libutti, 1994 WL 774647 at *2-*7 (D.N.J. Dec. 23, 1994).
Libutti, through counsel, sought downward departures under U.S.S.G §§ 5H1.1, 5H1.3, and 5H1.4 (based on age, claustrophobia disorder, and cardiac condition), and under U.S.S.G. § 5K2.13 (based on reduced metal capacity through compulsive gambling disorder), and under U.S.S.G. § 5K2.0 (for alleged governmental failures to have seized defendant's gambling funds and refusal to entertain offer in compromise). See United States v. Libutti, supra, 1994 WL 774647 at *7-*16. The court heard testimony and considered the reports of experts in the fields of cardiology and psychiatry, as well as testimony regarding the capability of the Bureau of Prisons to provide care for an individual with his physical and mental health problems. The court granted a downward departure pursuant to §§ 5H1.3 5H1.4, finding that defendant's combination of physical and mental conditions presented an extraordinary situation in which prison life may be significantly harder to endure.Id. at **10. Departures upon the other grounds were denied. Id. at *11-*16.
On December 2, 1994, this Court sentenced Libutti to a total of sixty months imprisonment. The Court downwardly departed from the presumptive Guidelines range of 51-63 months on Counts One, Two, and Three on the basis of Libutti's various illnesses to reach a total sentence of thirty-six months. For the pre-guidelines bank fraud offenses charged in Counts Four and Five, Libutti was sentenced to twenty-four months imprisonment to run consecutive to the sentence imposed for Counts One, Two and Three. He also was sentenced to three years supervised release, restitution to UNB of $250,000, a fine of $50,000, and a special assessment of $200.
Libutti was sentenced to thirty-six months for Count One, and twelve months each for Counts Two and Three with the sentences for Counts Two and Three to be served concurrently with the sentence on Count One. Thus, the total guideline sentence was thirty-six months.
Libutti contends that, after his conviction, he consulted with his attorneys regarding available post-conviction remedies, and was advised that a notice of appeal would be filed on his behalf to appeal his conviction to the Third Circuit. He was also advised that in the event that the appeal failed and the Supreme Court denied review, he could then file a collateral attack on the sentence by way of a § 2255 motion. (Petitioner's Br. at 8.) His attorneys also advised him — correctly under then-controlling law — that there was no time limit on § 2255 motions, and that such motion could be brought any time. Id.
Libutti, through his attorneys, filed a notice of appeal on December 23, 1994, and the Third Circuit affirmed his convictions on November 17, 1995. United States v. Libutti, 72 F.2d 124 (3d Cir. 1995) (Table). His petition for rehearing en banc was denied on January 25, 1996, and his petition for certiorari to the Supreme Court was denied on April 1, 1996.United States v. Libutti, 517 U.S. 1121 (1996).
The execution of Libutti's sentence of December 2, 1994, was stayed pending appeal, and, after his appeal was denied, was further stayed pending his petitions for rehearing en banc and for certiorari. During this stay, Libutti underwent medical treatment for his heart problems, and psychiatric counseling and medication for his panic attacks and claustrophobia. After his conviction became final with the denial of certiorari, this Court directed Libutti to surrender to authorities on May 3, 1996. The reporting date was postponed for further medical treatment, eventually including bypass surgery. He was released from the hospital on July 21, 1996. During the next six months, Libutti recuperated at home, and eventually surrendered voluntarily to the Bureau of Prisons Medical Facility at FMC Rochester on January 27, 1997. After prison physicians deemed Libutti fit for normal confinement, he was then transferred from FMC Rochester to LSCI Allenwood, Pennsylvania on February 12, 1997.
Almost one year after arriving at LSCI Allenwood, Libutti filed the present application for § 2255 relief on January 20, 1998.
DISCUSSION
Title 28 U.S.C. § 2255 permits a prisoner in custody under sentence of federal court to move the court to correct an erroneous sentence. See Hill v. United States, 368 U.S. 424, 426 (1962). Under § 2255, the sentencing court is authorized to discharge or re-sentence a defendant if it concludes that it "was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." See Hill, 368 U.S. at 426-27 (quoting 28 U.S.C. § 2255). However, "[s]ection 2255 does not afford a remedy for all errors that may be made at trial or sentencing." United States v. Essig, 10 F.3d 968, 977 n. 25 (3d Cir. 1993) (citing United States v. Addonizio, 442 U.S. 178 (1979)). The Supreme Court has found that a claim of legal error, unlike a claim of jurisdictional or constitutional error, is not cognizable under § 2255, unless the alleged legal error raises a "fundamental defect which inherently results in a complete miscarriage of justice." Addonizio, 442 U.S. at 185 (quoting Hill, 368 U.S. at 428).
A. Statute of Limitations Under 28 U.S.C. § 2255
Soon after the Supreme Court denied Libutti's certiorari petition, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") took effect. AEDPA, which was signed into law on April 24, 1996, included a one-year period of limitation for filing a motion under § 2255.
Under the time limitations prescribed by AEDPA a petitioner seeking relief pursuant to § 2255 may move the court which imposed a sentence to vacate, set aside or correct the sentence, within one year of 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 . . . is removed . . .;
(3) the date on which the right asserted was initially 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.
Because of concerns over the retroactive effect of AEDPA, the Third Circuit has provided a "grace period" for habeas petitions, holding that prisoners whose convictions became final before the effective date of AEDPA had until April 24, 1997 to file petitions for relief. Morris v. Horn, 187 F.3d 333 (3d Cir. 1999) (citing Burns v. Morton, 134 F.3d 109 (3d Cir. 1998)). Thus, because Libutti's conviction became final with the denial of certiorari shortly prior to the enactment of AEDPA, he had until April 24, 1997 to file within AEDPA's time limit with respect to his claim of error in guideline calculation at sentencing on December 2, 1994. Because Libutti's petition was not filed until January 20, 1998, it is untimely filed and under § 2255 should be dismissed with prejudice unless equitable tolling has occurred.
His claim for relief based upon the Eighth Amendment is timely, however, because his first day of imprisonment (January 27, 1997) would be the trigger date under § 2255(4), supra, since that was the first date on which the facts of the allegedly deficient Bureau of Prisons medical system became known to him, allegedly giving rise to a claim that his sentence violates the Eighth Amendment.
B. Equitable Tolling
The Court must determine whether petitioner's guideline-related claim is nonetheless timely due to equitable tolling. Libutti argues that, despite this untimely filing, the circumstances leading up to the filing of his petition were extraordinary, and should lead the Court to equitably deem his petition timely filed. In support of this argument, he correctly notes that the Third Circuit, in accord with several other Circuit Courts of Appeals, held in Miller v. New Jersey State Department of Corrections, 145 F.3d 616 (3d Cir. 1998), that the time limitation provided in § 2255 does not serve as a jurisdictional bar, but rather that equitable tolling sometimes may be appropriate. The Court of Appeals has cautioned, however, that such relief should be granted only sparingly. Specifically, the court stated that equitable tolling is appropriate "only when the principles of equity would make rigid application of a limitation period unfair." Miller, 145 F.3d at 618-19 (3d Cir. 1998) (citations omitted). Generally, this "unfairness" will occur only "when the petitioner has in some extraordinary way . . . been prevented from asserting his or her rights." Id. Finally, "the petitioner must show that he or she exercised reasonable diligence in investigating and bringing [the] claims. . . . Mere excusable neglect is not sufficient." Id.
Since deciding in Miller that § 2255's limitation period may be tolled, the Third Circuit has elaborated on what may constitute "extraordinary circumstances" authorizing tolling in habeas cases. In a recent opinion on the issue, the court looked to the equitable tolling concepts used in Title VII cases to explain that equitable tolling "`may be appropriate if . . . the defendant has actively misled the plaintiff' . . . when a claimant received inadequate notice of her right to file suit . . . or where the court has misled the plaintiff into believing that she had done everything required of her." Jones v. Morton, F.3d, No. 98-5230, 1999 WL 970797, slip. op. at 10 (3d Cir. October 25, 1999) (citations omitted). In the end, however, courts must be sparing in their use of equitable tolling. Id., slip. op. at 11 (quoting Seitzinger v Reading Hosp. Med. Ctr, 165 F.3d 236 (3d Cir. 1999)).
In the present motion, Libutti argues that his lawyer's faulty advice led him to miss the April 24, 1997 deadline under AEDPA. Libutti maintains that he first focused on post-conviction relief remedies after he was discharged from FMC Rochester and transferred to LSCI Allenwood in February 1997. Only at that time, Libutti asserts, did he become aware of the new time constraints on § 2255 motions. Newly conscious of the time limitation, he maintains, he retained Robert Fettweiss, Esquire, about how best to attack his sentence on a § 2255 motion. (Petitioner's Br. at 8-9.) Libutti asserts that Mr. Fettweiss agreed to draft a § 2255 motion attacking his sentence on the grounds that, contrary to the assurances made to the Court at sentencing, the Bureau of Prisons ("BOP") was unable to provide Libutti adequate medical care. According to Libutti, Mr. Fettweiss informed him that, because it only became apparent on January 27, 1997 (the date upon which he entered custody) that the BOP was allegedly unable to provide the needed care, he had until January 27, 1998 to file a § 2255 motion on this basis. Later, Mr. Fettweiss thought better of filing such a motion, and instead submitted a request to the BOP for compassionate release pursuant to 18 U.S.C. § 4205, 18 U.S.C. § 3582 and 28 C.F.R. § 571.60 et seq. The BOP denied this request on June 17, 1997. Seven months after the failure of his request for compassionate release, Libutti filed the present petition for § 2255 relief.
It is significant that Mr. Fettweiss was actually involved with this case at a much earlier stage than petitioner suggests. The Court had contact with and correspondence from Mr. Fettweiss beginning as early as January 9, 1997. On that date, Mr. Fettweiss sent the Court a detailed letter requesting an additional postponement of the scheduled surrender date of January 27, 1997. As evidenced by this letter, Mr. Fettweiss already was working on Libutti's behalf for at least a month before Libutti surrendered to federal authorities for transport to FMC Rochester. The Court also notes that Diarmuid White, Esquire, wrote several letters on behalf of Libutti to the Court beginning in September 1996. Mr. White and Mr. Fettweiss had each participated in hearings with the court and prosecution pertaining to seeking further delays of Libutti's imprisonment. Thus, Libutti had counsel representing him for all or part of the six-month period between his release from the hospital in July 1996 and his surrender date of January 27, 1997. There is no indication that Libutti instructed his attorneys to draft a § 2255 motion during this period, when his time to do so was running, and when his incentive to attack his sentence was greatest.
Libutti argues that in reliance on Mr. Fettweiss's advice, he believed that he had until January, 1998 to file a § 2255 motion, and "promptly set about to retain an attorney to assist him in this matter." (Petitioner's Supplemental Ltr. Br. at 4.) Thus, Libutti argues, as soon as he had recovered from his critical heart surgeries, he "diligently set about taking the necessary steps to pursue his post-conviction relief." He concludes that the delays surrounding the filing due to his health problems and his attorney's advice constitute "exceptional circumstances" which excuse his untimely filing of this attack upon his Guideline calculation and sentencing. This argument fails for several reasons.
First, to the extent that Mr. Fettweiss advised Libutti about the time frame for a healthcare-related § 2255 motion arising under the Eighth Amendment, his advice was correct. Mr. Fettweiss advised Libutti that, because it only became apparent on January 27, 1997 (the date upon which Libutti entered custody) that the BOP was unable to provide proper care, he had until January 27, 1998 to file a § 2255 motion on this basis. AEDPA's time limitation provides that the petition should be filed within one year of "the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255. Thus, Mr. Fettweiss properly advised Libutti as to the time frame within which he should have filed a § 2255 motion as it related to his health care needs, and this petition is timely upon that ground.
There is no indication, however, that they ever discussed the present motion to vacate based on a miscalculation of Libutti's base sentencing level under the Guidelines. As Libutti's discussions with Mr. Fettweiss did not encompass the error in sentencing alleged in the present petition, Mr. Fettweiss's advice did not prejudice Libutti's ability to file a § 2255 motion on this claim. Because Libutti was not hindered by his attorney's advice regarding the time of filing the sentencing error claim, therefore, equity does not require tolling of the time limitation with respect to this claim.
Second, even assuming arguendo that the Libutti has accurately recounted Mr. Fettweiss's advice concerning the timing of a healthcare-related § 2255 motion, and that this advice erroneously also influenced Libutti not to file a challenge based on sentencing guidelines error, the Court's research shows that errors of counsel generally do not constitute "extraordinary circumstances" triggering equitable tolling of that statute.
Libutti has filed no affidavits in support of his rendition of the facts.
In Kapral v. United States, 166 F.3d 565 (3d Cir. 1999), the Court of Appeals considered whether to toll § 2255's limitations provision for the reason that petitioner's lawyer failed to file his petition within the Burns deadline of April 24, 1996. The petitioner in Kapral contended that, because the clerk's office incorrectly told his lawyer that the petition would be considered filed as of date of mailing (April 17th) rather than date of receipt (April 29th), the principles of equity should deem his motion filed at the earlier of the two dates. Kapral, 166 F.3d at 568 n. 1. The Court rejected this argument, finding that, petitioner's counsel was "an experienced practitioner who should have known or verified the elementary rules that govern the filing of a § 2255 motion." Id. For this reason, the court found that although the discrepancy was but one week, and despite the representation of the clerk's office as to the filing deadline, equity did not deem petitioner's motion filed on the earlier of the two dates because counsel's reliance on the information from the clerk's office was not reasonable.
Consistent with this holding in Kapral, therefore, this Court is extremely reluctant to toll the filing date on account of an error of counsel. It is well-established that a habeas petition in a non-capital case does not have the right to effective assistance of counsel "when attacking a conviction that has long since become final upon exhaustion of the appellate process," Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), and it follows that erroneous or incomplete advice of post-conviction counsel regarding a filing deadline will not normally serve to enlarge the deadline by equitable tolling. Moreover, there is no indication in this case that the government actively misled Libutti or his counsel, that Libutti received inadequate notice of his right to file suit, or that the Court has misled the Libutti into believing that he had done everything required of him. Absent any of these equitable factors articulated in Jones v. Morton, supra, therefore, the Court finds that a purported error of counsel is not a proper reason to toll § 2255's period of limitation with respect to any error occurring in connection with his sentencing.
Similar reasoning can be found in the unpublished decisions of several District Courts finding that errors of counsel do not toll the time limit within which a habeas petition must be filed. See Posada v. Schomig, 64 F. Supp.2d 790, 796 (C.D.Ill.) (holding that misleading advice of appellate counsel does not establish an extraordinary circumstance justifying tolling and that it was petitioner's responsibility to timely file his petition); Armand v. Strack, No. CV 98-6650(RJD), 1999 WL 167720 at *4-*5 (E.D.N Y Feb. 19, 1999) (holding flawed legal advice from prison paralegal regarding filing deadline does not toll statute).
Additionally, the Ninth Circuit decision that Libutti cites in support of his argument that error of counsel constitutes an extraordinary circumstance justifying tolling, Calderon(Beeler), is inapposite. See Calderon v. United States District Court (Beeler), 128 F.3d 1283 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc),cert. denied, U.S., 119 S.Ct. 1377 (1999). In that case, the Ninth Circuit Court of Appeals affirmed the District Court's decision to grant a petitioner's motion to toll § 2255's time limitation due to extraordinary circumstances. The District Court granted a motion to extend time for filing a petition under 28 U.S.C. § 2254 after finding exceptional circumstances justifying tolling where a death-row inmate's attorney had worked on a habeas petition but left the state for other employment, leaving behind only unusable work product. Id. at 1288-89.
This case is distinguishable from Calderon(Beeler) for several reasons. Fundamentally, Calderon(Beeler) is a capital case in which there is a federal statutory right to counsel for state and federal prisoners seeking federal post-conviction relief, see 21 U.S.C. § 848(q). There is no such right to adequate counsel in a non-capital § 2255 case such as the present one. Moreover, this case is unlike Calderon(Beeler) in that there was never a request to extend the time for filing — Libutti simply missed the April 24, 1997 filing deadline with respect to his Guidelines-related claim and now requests retroactive tolling. Second, unlike the situation in Calderon(Beeler), there is nothing to indicate that Libutti's attorney left Libutti without the ability to pursue his claims as planned. Mr. Libutti indeed engaged a series of attorneys, beginning with his trial counsel, to pursue appeals following his sentencing on December 2, 1994. Instead, Libutti and Mr. Fettweiss could have filed a § 2255 motion but apparently decided not to, and instead filed what was ultimately an unsuccessful request for compassionate release. Finally, rather than a situation like that ofCalderon(Beeler) where the inmate had virtually no work product on which to base a petition after his lead attorney left the state, the record in this case reflects that at the time Libutti purportedly retained a new lawyer to help him prepare his § 2255 motion in late 1997 or early 1998, there was no work being done on a habeas petition. Thus the change of counsel did not delay the completion of work being done on the petition.
As shown by the discussion above, an attorney's acts or omissions only rarely amount to a circumstance sufficiently extraordinary to toll the time limit for filing habeas petitions. Thus, even assuming that Mr. Fettweiss's advice regarding the Eighth Amendment/medical care ground somehow caused Libutti to also miss the filing deadline applicable to the Guideline calculation ground, this does not amount to an extraordinary circumstance.
The Court is also unpersuaded by Libutti's argument that he was prevented from timely filing due to circumstances beyond his control — namely his failing physical and mental health. While the Court does not doubt that petitioner's recovery from two heart surgeries was slow and painful, and that he was impeded by the prescription drugs he was taking to treat his on-going anxiety disorders, the Court finds that health did not prevent Libutti from contesting the Guideline calculation employed in his December, 1994 sentencing before the deadline for doing so expired on April 24, 1997.
Indeed, any assertion that Libutti was too incapacitated to file is belied by his own arguments. As stated in petitioner's brief, following his surgeries, Libutti's "entire focus was on staying alive and attempting to obtain further stays of his sentence." (Petitioner's Br. at 24.) Clearly, if Libutti was able to focus on obtaining further delays in the execution of his sentence, he was at that point choosing to focus on procedures other than those necessary for attacking his sentence by way of a § 2255 motion. While this negligence is certainly understandable, it does not rise to the level of an exceptional circumstance excusing Libutti's late filing. He used attorneys many times during the year preceding the April 24, 1997 filing deadline to seek continued stays of the 1994 sentence itself. Finally, the Court finds unpersuasive Libutti's argument that he should be excused from the time limitation included in § 2255 because he was unaware of the time limitations accompanying the passage of AEDPA. There is no indication that Libutti received information from the Court, court staff, or a government employee that he had unlimited time in which to file a petition under § 2255. Rather, he simply states that he should be excused from the filing deadline because he was relying on the then-correct advice of counsel in 1994 that he had unlimited time in which to file under § 2255. The one-year grace period following AEDPA's enactment in 1996 was meant to give ample opportunity to acclimate to this restriction upon time to file a § 2255 petition. Absent misleading information, then, Libutti's claim amounts to a claim of ignorance of the law. This argument is without merit, as ignorance of the law does not justify equitable tolling of a statute of limitations. School Dist. of City of Allentown v. Marshall, 657 F.2d 16, 21 (3d Cir. 1981). More to the point, this District has already noted equitable tolling is not available to habeas petitioners claiming ignorance of the limitations period established by AEDPA.Fadayira v. United States, 30 F. Supp.2d 772, 781 (D.N.J. 1998) (citations omitted).
In sum, there are no exceptional circumstances present which justify tolling the statute of limitations. For this reason, Libutti's of ineffective assistance of counsel for failure to object to the alleged sentencing error is untimely filed.
C. Sentencing Guidelines Base Offense Level Error
Having resolved that Libutti's Sixth Amendment claims pertaining to guideline calcuations are untimely, the Court notes parenthetically that, even assuming that Libutti's counsel erred by not objecting to the calculated base offense level, Libutti was not necessarily prejudiced by this failure. At the very least, the current circumstances do not present an extraordinary situation where a miscarriage of justice will otherwise result if the one-year limitations period is not tolled.
The gravamen of the sentencing error argument is that, when preparing the Presentence Report, the Probation Department should have employed the 1993 Sentencing Guidelines Manual rather than the 1994 Manual. Under the 1993 guidelines, Libutti maintains, the base offense level should have been set at seventeen (17) rather than twenty (20), and that his total overall guidelines score should therefore be reduced from twenty-four (24) to twenty-one (21). This figure is arrived at because, if re-sentenced on these charges, Libutti still would receive a two-point enhancement under 1993 Guidelines Manual 2T4.1(L) for using "sophisticated means . . . to impede discovery", and an additional two-point enhancement under 3B1.1(c) for participation as a "leader and organizer in the criminal activity" as applied in the original Presentence Report. Even if he were to be re-sentenced under the proffered base offense level, therefore, Libutti's overall guidelines score would be twenty-one (21). This score would put his presumptive sentence at thirty-seven (37) to forty-six (46) months on Count One. At the original sentencing, Libutti was sentenced to thirty-six (36) months. Thus, despite the purported base offense level error, Libutti actually received a downward departure even from the presumptive sentence for his crime under the alleged recalculation.
Although in 1994 the Court did depart from the presumptive sentence of fifty-one (51) to sixty-three (63) months down to thirty-six (36) months, there is no guarantee that the Court would downwardly depart to the same extent it did in 1994.
The sentence then, as now, would lie at the upper end of the range absent a departure for mental and physical health reasons under U.S.S.G. §§ 5H1.3 5H1.4. At that time, the Court departed from the presumptive sentence only because of Libutti's then-pressing health problems. During the sentencing hearing, this Court noted that Libutti's health was the sole reason for his relatively light sentence of 36 months on Counts One, Two and Three:
If it weren't for Mr. Libutti's medical conditions, the sentence that he would have received would have been at the upper edge of the guidelines range with respect to the tax counts, which would have been on Counts I, II, and III, approximately 63 months.
I have taken into account, however, the severity and the unusual nature of his medical condition. I disagree with the suggestions by his doctors that even one day in prison will be a death sentence. That's just not so.
. . . .
So, the extent of the downward departure is going to reflect that it starts from the upper edge of the guidelines [range]. There can be no more serious tax offense than this one. If a 63 month sentence was meant for anyone, it was meant for Robert Libutti.
The departure, though, has been demonstrated. The defendant has carried his burden of showing that there is a combination of conditions that should be taken into account under the existing sentencing guidelines. And so with regard to the sentence on counts I, II, and III . . . there is going to be a period of incarceration of 36 months.
(Resp't's Ex. A, December 2, 1994 Sentencing Tr. at 56:18 to 58:10 (emphasis added).)
The Court finds that Libutti's current health problems do not present the same unusual combination of conditions facing the Court in December 1994, when his physical deterioration was life-threatening, as was his refusal to accede to appropriate medical intervention. Indeed, as indicated by the fact that Libutti has been treated successfully for his most emergent health problems, the record demonstrates that Libutti is in better health today than he was when sentenced in 1994. Moreover, while the Libutti's time spent in prison since 1997 surely has been unpleasant, he has demonstrated that he is able to tolerate confinement. Moreover, five years after the sentence was imposed upon him, Libutti has still not uttered one word of contrition for his tax crimes. For these reasons, even if it assumes arguendo that petitioner's guidelines claim is timely and that resentencing is appropriate, if the Court were to re-sentence him today, Libutti might not qualify for a departure on health grounds given his treatable medical conditions and the relatively short time (less than two more years) remaining to be served. Accordingly, this is not a situation where the limitations period of § 2255 should be equitably tolled with respect to the guidelines issue in Count One to prevent a miscarriage of justice.
The Court is informed that Libutti still has partially obstructed arteries, needs a pacemaker, and suffers from a hernia. (Petitioner's Supplemental Ltr. Br. at 1-2.)
D. Eighth Amendment Claims
In addition to his ineffective assistance of counsel claims, Libutti argues that this Court should, pursuant to either 28 U.S.C. § 2255 or § 2241, grant him relief based on the fact that the BOP provided the Court inaccurate information about its ability to provide Libutti with adequate medical care.
With respect to the timeliness of filing on this issue, the Court agrees with petitioner that, even using due diligence, the facts supporting Libutti's inadequate care claim could not have been discovered until he began his term of imprisonment on January 28, 1997. For this reason, the Court finds that the present petition, filed January 20, 1998, was timely with respect to the Eighth Amendment claim.
Turning to the merits of Libutti's Eighth Amendment claim, Libutti first argues that, because the Court based its 1994 decision to imprison Libutti in significant part on the BOP officials' inaccurate testimony that the BOP would be able to provide Libutti with proper cardiac rehabilitation, the Court now should vacate his sentence as the Court's sentence was premised on false impressions. Second, Libutti argues that because it is now apparent that Libutti cannot receive adequate medical care, this Court's sentence is in violation of the Eighth Amendment andEstelle v. Gamble, 429 U.S. 97 (1976), and should be vacated as unconstitutional.
With respect to Libutti's claim that his sentence was based on misinformation, Libutti argues the Court was not informed of the truth — that Libutti would have to be shackled and transported for treatment, aggravating his claustrophobia and panic disorders. Had the Court known it was virtually impossible for him to receive prescribed medical follow up treatment, Libutti asserts, "it is questionable whether this Court would or could have imposed a term of imprisonment." (Petitioner's Br. at 33-34.) In sum, Libutti argues that had the Court been given the correct information, he would not have been imprisoned.
The record before the Court repudiates Libutti's argument that the Court was misled when sentencing Libutti. At the pre-sentencing hearing on September 8, 1994, BOP Official Dr. John Dignam testified that FMC Rochester had a contract with the Mayo Clinic, and that any prisoners requiring complicated treatment "are taken physically to the Mayo Clinic for care". (Respondent's Ex. B, September 8, 1994 Sentencing Tr. at 156:13-14.) The Court was certainly aware that Libutti would have to be "taken physically" to the Mayo Clinic in a manner consistent with BOP security needs, and that the physical circumstances surrounding Libutti's continuing medical and psychiatric care might require that Libutti be transported in handcuffs. Moreover, even assuming that this fact was not made evident during the sentencing hearings, it would not have influenced the Court to depart downward more than it did. Thus, the purportedly inaccurate information provided by the BOP does not rise to the level of an omission or falsehood compelling the Court to vacate or set aside Libutti's sentence. The Court was indeed informed of degrees of restraint which would be necessary during Libutti's imprisonment of a significantly greater kind, such as lockdowns in cells and prison buildings, which could only be marginally alleviated in the prison environment.
Next, Libutti argues that the BOP is now unable to provide adequate care and should have admitted as much to the Court at Libutti's sentencing. As a preliminary matter, it seems doubtful that the Court would have jurisdiction over the quality of care claim at all, as it is more akin to a claim brought with respect to prison conditions under 42 U.S.C. § 1983 than an attack on a sentence under 28 U.S.C. § 2255. See Estelle v. Gamble, 429 U.S. 97, 105 (1973) ("[D]eliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983.")
Even assuming that this claim is properly brought under § 2255, however, the record before the Court does not show that Libutti is receiving inadequate care in violation of the Eighth Amendment. According to correspondence from Libutti's attorney, he has now completed a course of chemotherapy which involved five treatments a month for six months. This treatment has put his colon cancer into remission. (Ltr. of Joyce C. London, Esq. dated September 8, 1999.) Such intensive and regular treatment suggests anything but willful indifference to Libutti's medical needs in violation of Estelle v. Gamble, 429 U.S. 97 (1976). Moreover, Libutti's doctors at FMC Rochester have continued to monitor his cardiac care, and will if "absolutely required" perform the needed care. Id. Counsel for petitioner suggests, however, that, because the BOP is unwilling to perform the surgery except in dire circumstances, the prison doctors' decision not to operate constitutes grounds for vacating Libutti's sentence.
The Court declines this invitation to appraise the medical judgment of BOP physicians. Simply put, a prisoner's disagreement with a prison doctor's professional judgment does not constitute deliberate indifference to medical needs in violation of the Eighth Amendment. See White v. Napoleon, 897 F.2d 103, 108-09 (3d Cir. 1990.)
Because Libutti has not established that prison officials acted in conscious disregard of his health care needs, and because there is no evidence that Libutti's care is inadequate, the Court will deny his petition on this ground.
CONCLUSION
For the reasons expressed in this Opinion, the court denies Libutti's petition for § 2255 relief. The accompanying Order is entered.
ORDER
THIS MATTER having come before the Court on the application of petitioner Robert Libutti for writ of habeas corpus pursuant to 28 U.S.C. § 2255 and in the alternative pursuant to 28 U.S.C. § 2241, and the court having considered the submissions of the parties, and for the reasons set forth in the accompanying Opinion;
IT IS on this __________ day of February, 2000, hereby ORDERED that Libutti's petition for § 2255 relief, and in the alternative § 2241 relief, is DENIED, and;
IT IS FURTHER ORDERED that no certificate of appealability shall issue under 28 U.S.C. § 2253(c)(1), petitioner having failed to make a substantial showing of the denial of a constitutional right.