Opinion
01 C 4184
November 16, 2001
This is a § 2255 petition by a prisoner convicted before Judge Williams (who now sits on the Court of Appeals). He lost his appeal on July 10, 1999 and his petition for certiorari. So the obvious question is whether he is too late. And it is a question that petitioner seeks to answer by saying he is to be excused because he is "non-English speaking" and because the federal prison did not have an adequate law library. The 2255 petition itself is weightless. Thus, it does not matter whether he was somehow prevented from filing it in a timely manner. His challenge to his conviction is based upon his trial counsel's failure to raise Singleton objections, but the panel decision in Singleton is not consistent with the law in this circuit and, as it turned out, not consistent with the law in its own circuit. Defense counsel cannot be criticized for failing to raise the matter. His attack on the sentencing process is based on trial counsel's failure to ask for a departure on several grounds. But here too the petition fails. Departures based on waiver of deportation and deportable alien status are not well accepted in this Circuit and are, in any event, never mandatory. While such departures may be made, it is not required that competent counsel move for them. Besides there is no reason to believe that they would have been granted. The trial judge said that "Miranda gave false testimony about a material matter . . . with the wilful intent to provide false testimony." I could not find prejudice for failure to move for a departure in a case where the trial judge has found that the petitioner was a liar.
The factual question of petitioner's language skills has been submitted to me on affidavits. Two are from the institution staff who attest that on reading tests, petitioner reads English at an 8th grade level, that he has not had difficulties in communicating with his Unit Manager and that he has never sought translation assistance within the institution. The petitioner's affidavit comes from his writ writer who says that he could not understand what petitioner said to him and that petitioner could not understand what the writ writer said. The writ writer notes that a prison tutor understood about half the words he heard and read in English. Even accepting the writ writer's declaration, there is no reason to believe that petitioner did not understand that he needed to file his petition within a year. Indeed a careful reading of the papers does not support an inference that he did not know about the year time limit. His argument is that his English was not good enough to draft a petition. But lack of legal ability and lack of skill in language have not been held to excuse non-compliance with the time limits. Even English speaking inmates may lack legal skills. And petitioner does not deny that he failed to request translation assistance. He seeks to explain his failure to do so because "he would be laughed out of the presence of any staff who was asked to assist . . ." This, he says, is true because staff has an interest is keeping the inmate population large in order to keep their jobs. This argument is fantasy — I doubt that there are any prison employees who, after the last twenty or so years, have any concern that there will be too few inmates. Prisons are over crowded and, if staff has any incentive, it would be to reduce the population and their workloads. I find thaf petitioner does not so severely lack English that his failure to file on time is excused. Even if he did, his failure to ask for translation assistance defeats his excuse for late filing.
I also note that he does not say that the issues which he wanted to raise were unknown to him. The 2255 petition process does not require elaborate legal research, and petitioner does not say that he was ignorant of the fact that a key witness against him was a cooperator or that he thought his lawyer had done a fine job in sentencing him.
I dismiss the petition.