Opinion
01 Civ. 796 (TPG), 97 Cr. 56 (TPG)
November 22, 2002
OPINION
James Mitchell moves under 28 U.S.C. § 2255 to set aside his conviction or correct his sentence. The Government has answered. The motion is denied and dismissed.
Mitchell was charged in a multi-count RICO indictment with numerous violent crimes, including murder and armed robbery. Mitchell and the Government entered into a plea agreement dated August 14, 1997, in which Mitchell agreed to plead guilty to Count 10 of the Superseding Indictment, charging him with a particular robbery during which one victim was killed and another victim seriously injured. It was stipulated in the plea agreement that under the Sentencing Guidelines the offense level applicable to Count 10 was 40 and that Mitchell's criminal history category was III, resulting in a Guideline range of 360 months to life. However, since the statutory maximum for Count 10 was 240 months, this became the stipulated sentence.
Although the plea agreement precluded motions for departures, Mitchell submitted a pro se motion seeking a departure from the stipulated sentence because he claimed that he did not intend to kill anyone during the robbery. This motion was the subject of extensive discussion at the sentencing on June 4, 1998. The court concluded that the felony murder doctrine applied, and further ascertained that Mitchell had a full understanding that the sentence under the applicable statute and guidelines would be 240 months. The court then imposed this sentence.
Mitchell filed a notice of appeal. His counsel filed an Anders brief, stating that there were no non-frivolous issues to be raised on appeal.See Anders v. California, 386 U.S. 738 (1967). On January 14, 1999 the Court of Appeals granted the Government's motion for summary affirmance and issued its mandate. Mitchell filed certain further motions, which were finally denied by the Court of Appeals on June 10, 1999.
On June 22, 2000 Mitchell filed with the Pro Se Clerk's Office an application to file an untimely Section 2255 Motion. There were certain subsequent filings with that Office. The date of filing of the § 2255 motion is deemed to be June 22, 2002.
The main ground of the § 2255 motion needs certain preliminary explanation. Although not articulated fully, the claim is evidently based on Fed.R.Cr.P. 11(e)(1)(B). This subdivision of Rule 11 provides that the attorney for the Government and the attorney for the defendant may agree that upon entry of a guilty plea, the Government will recommend, or agree not to oppose, the defendant's request for a particular sentence or sentencing range. Rule 11(e)(2) goes on to provide that, if the agreement is of the type specified in subdivision (e)(1)(B), at the time of the guilty plea the court "shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw the plea." In the present motion, Mitchell contends that his plea was involuntary because the Court did not give this advice.
Mitchell makes certain other arguments in the current motion. He asserts that his plea was involuntary because there was no factual proffer on behalf of the Government. He further asserts that he did not receive the benefits of acceptance of responsibility in accordance with the Sentencing Guidelines. Finally, he contends that his counsel was ineffective in failing to make the above arguments.
The Government's response is that the motion should be denied because it is untimely and because, in any event, the arguments are without merit. The Government is correct in both respects.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") requires that motions seeking relief from federal convictions must be filed within one year of the date on which the judgment in the underlying case becomes final. 28 U.S.C. § 2255. There is some difference of view in the courts about when this finality occurs. But the latest possible date is when the time for seeking certiorari from the Supreme Court expires. In the present action this occurred 90 days after January 14, 1999, when the Court of Appeals granted the motion for summary affirmance and issued the mandate. The 90 days expired April 14, 1999. Mitchell's § 2255 application is deemed to have been filed June 22, 2000. This is obviously more than one year following April 14, 1999.
Mitchell seeks to excuse the delay by stating in an affirmation that his counsel assured him in early April 2000 that he had filed a petition, but Mitchell learned on June 16, 2000 that his counsel had failed to do so.
There are numerous cases indicating that the one-year limitation in the AEDPA should be enforced strictly, and that tolling of the statute will be allowed only in rare and exceptional circumstances. See, e.g., Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Mitchell's perfunctory attempt to pass blame onto the carelessness of his attorney is not sufficient to toll the statute. The motion is barred by the statute of limitation.
It is, however, appropriate to state also that, on the merits, the motion is wholly without basis.
Earlier in this opinion the court quoted the provisions in the Criminal Rules apparently relied on by Mitchell in his argument that the court omitted certain advice to him at the time of his guilty plea. These Criminal Rule provisions are not applicable to the present case. There was no agreement that the attorney for the Government would recommend, or agree not to oppose, the defendant's request for a particular sentence or sentencing range, the kind of agreement referred to in subdivision 11(e)(1)(B) of Rule 11.
The plea agreement in the present case involved what is described in the next subdivision of the Rule — i.e., (e)(1)(C), which speaks of an agreement by the Government "that a specific sentence or sentencing range is the appropriate disposition of the case." The plea agreement Mitchell entered into specified that a sentence of 240 months was the appropriate disposition of the case. This was not the kind of "recommendation" dealt with in subdivision (e)(1)(B). Under the specific language of subdivision (e)(2), the kind of advice referred to by Mitchell is only required in cases involving (e)(1)(B). It is not required in cases under (e)(1)(C). There may seem to be a rather fine distinction between the recommendation referred to in (e)(1)(B) and the agreement referred to in (e)(1)(C), but the rule makes that distinction.
It should also be added that the court did not reject what was presented to the court — i.e., an agreed upon or stipulated sentence, The court imposed the precise prison term of 240 months which was stipulated in the plea agreement as being the correct term.
As to the argument that there was no factual proffer on behalf of the Government, the essential element of the guilty plea was the factual admission by Mitchell. Mitchell made such an admission.
Regarding the benefits of acceptance of responsibility, Mitchell is simply incorrect. He was given the maximum three-level reduction.
Since Mitchell's arguments have no merit, it follows that his counsel was not ineffective in failing to advance them.
The motion is denied and dismissed.
The moving party has not made a substantial showing of the denial of a constitutional right. Therefore a certificate of appealability will not issue. 28 U.S.C. § 2253.
In respect to the in forma pauperis statute, the court certifies that an appeal would not be taken in good faith. 28 U.S.C. § 1915 (a)(3).