Opinion
No. 00 Civ. 8820 (JFK), No. 89 Cr. 644-2 (JFK)
February 14, 2003
JOSE CARLOS SANCHEZ-BUTRIAGO, White Deer, PA for Petitioner, Pro Se.
JAMES B. COMEY, United States Attorney, S.D.N.Y., New York, New York, Of Counsel: AUSA Daniel P. Margolis, For the Respondent.
OPINION AND ORDER
Before the Court is Petitioner Jose Carlos Sanchez-Butriago's ("Sanchez-Butriago") petition to vacate, set aside or correct his conviction and sentence, pursuant to 28 U.S.C. § 2255 (" § 2255"). For the reasons that follow in this Opinion and Order, Sanchez-Butriago's petition is denied.
BACKGROUND
On October 23, 1991, following a trial, Sanchez-Butriago was convicted on six counts: operating a continuing criminal enterprise ("CCE") (Count Nine), in violation of 21 U.S.C. § 848(a); conspiracy to import more than one kilogram of heroin (Count One), in violation of 21 U.S.C. § 963; importation of more than one hundred grams of heroin (Count Two), in violation of 21 U.S.C. § 960(a)(1) and 960(b)(2)(A); conspiracy to distribute more than one kilogram of heroin (Count Four), in violation of 21 U.S.C. § 846; distribution of more than 100 grams of heroin (Count Six), in violation of 21 U.S.C. § 841(b)(1)(B); and conspiracy to transfer narcotics outside the United States (Count Ten), in violation of 18 U.S.C. § 371. Sanchez-Butriago was sentenced by this Court to 240 months' imprisonment on the CCE count (Count Nine), 121 Months on Counts One and Four, 60 months on Counts Two and Six, and 48 months on Count Ten. All sentences are to be served concurrently, and followed by a five-year term of supervised release.
On October 20, 1992, Sanchez-Butriago filed a brief appealing his conviction. Shortly after filing his brief, Sanchez-Butriago expressed an interest in cooperating with the government. In order to explore this possibility, Assistant Butriago's counsel, David J. Goldstein ("Goldstein"), entered into a written stipulation, dated November 25, 1992, withdrawing Sanchez-Butriago's appeal without prejudice and permitting him to reinstate his appeal within 120 days. Rebay and Goldstein subsequently entered into a second written stipulation extending the deadline for Sanchez-Butriago to reinstate his appeal by another 120 days to June 25, 1993. Rebay, Goldstein and Sanchez-Butriago discussed the possibility of the defendant cooperating, but these discussions failed to lead to a meaningful result. The last time Rebay, Sanchez-Butriago and Goldstein met to discuss the defendant's cooperation was February of 1996.
On October 8, 1998, Sanchez-Butriago moved to reinstate his withdrawn appeal. On November 25, 1998, Assistant United States Attorney Ira Feinberg ("Feinberg"), then the chief of the Appeals Unit, submitted an affirmation opposing the filing of the brief on the grounds that it was time barred. Sanchez-Butriago contended, as he does now, that he was told by Goldstein that in order to avoid constantly extending the filing deadline every 120 days, he and Rebay had orally agreed that Sanchez-Butriago could enter his appeal at any time in the future. Feinberg's affirmation avers that he spoke with Rebay and she did not recall having entered into any such agreement with Goldstein. Feinberg also submits that Rebay told him that entering into an oral agreement would have been contrary to her regular practice of documenting any such agreement in writing. Goldstein submitted an affidavit in support of Sanchez-Butriago's instant motion. Goldstein stated that discussions he had had with Rebay had led him to believe the government would allow Sanchez-Butriaqo to reinstate his appeal at a later date not conditioned on a specific period of time.
According to Feinberg's affirmation, Rebay had left the United States Attorney's office more than two-years prior to Sanchez-Butriago filing his motion for reinstatement of his appeal.
On December 18, 1998 the Second Circuit denied Sanchez-Butriago's motion to reinstate his appeal. On October 26, 1998, Sanchez-Butriago moved the Second Circuit to recall its mandate dismissing his appeal. On December 21, 1999, the Second Circuit issued an Order stating that because the appeal was terminated on December 23, 1992, and Sanchez-Butriago's motion to reinstate his appeal had been denied, the court no longer had jurisdiction to act in the matter. Sanchez-Butriago filed the instant petition on November 2, 2000.
The date on which the Second Circuit sent an Order to the district court approving the withdrawal of Sanchez-Butriago's appeal.
Discussion
The Antiterrorism and Effective Death Penalty Act of 1996, codified at 28 U.S.C. § 2244 ("AEDPA"), imposes a one year statute of limitations on § 2255 motions filed after April 24, 1996. See Lindh v. Murphy, 532 U.S. 320 (1997). This limitation period begins to run against a petitioner on the latest of the following four dates:
(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.
23 U.S.C. § 2244(b)(2). Because Sanchez-Butriago was convicted prior to AEDPA's enactment, he was afforded a grace period of one year from AEDPA's effective date to file his habeas petition. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). Thus, the statute of limitations on Sanchez-Butriago's petition expired on April 24, 1997.
In limited circumstances the one-year limitation period for filing a § 2255 petition is subject to equitable tolling. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Equitable tolling only applies, however, in "rare and exceptional circumstance[s]" where a petitioner can show that "extraordinary circumstances prevented him from filing his petition on time." Id. Furthermore, a petitioner "seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll." Id.
Sanchez-Butriago contends that the limitation period should be tolled because, "Counsel's deficiency created circumstances that were beyond petitioner's control and prevented him from timely filing this § 2255." Pet. Brief at 8-9. Generally, the error of an attorney is not grounds for the equitable tolling of AEDPA's one-year limitation period.See D'Angelo v. Basilon, 2002 WL 550974, at *2 (S.D.N.Y.) (Hellerstein, J.). Unfortunately, the error of an attorney is not "extraordinary" or "rare and exceptional." Nor is an attorney's error likely to be something that would prevent a petitioner from filing within the one-year limitation period. See Raynor v. Dufrain, 28 F. Supp.2d 896, 900 (S.D.N.Y. 1998) (Conner, J.).
Even if the Court were willing to accept petitioner's claim that his attorney's error prevented the filing of this § 2255 petition, which the Court is not inclined to do, the petition is still time barred. When calculating the lapse of time for the purposes of the one-year limitation period, time is tolled while a legitimate and appropriately filed motion or appeal is pending. When the appeal is resolved, the limitation period commences from whence it left off prior to the motion or appeal being filed. The one-year limitation period does not begin anew. See Smith 208 F.3d at 17.
Assuming arguendo that Sanchez-Butriago's conviction was not final until the Second Circuit denied his motion to reinstate his appeal, and that he was unable to file his habeas corpus petition until the Second Circuit had rendered its decision; Sanchez-Butriago's petition is still untimely. The Second Circuit denied the motion to reinstate on December 18, 1998. Sanchez-Butriago did not file the instant petition until November 2, 2000. From the day the Second Circuit ruled to the filing of this petition, 684 days passed. Well in excess of the 365 day limit for filing. Once the court of appeals refused to reinstate the appeal, Sanchez-Butriago should have recognized that his conviction was final and that the limitation period had commenced.
There is some discrepancy in the papers of both parties as to whether the instant petition was filed on November 2, 2000 or the following day. As the papers are dated November 2, 2000 and the point of this part of the discussion is to afford the petitioner the benefits all possible doubts, the Court will use November 2, 2000 as the filing date.
That Sanchez-Butriago filed a motion to recall the court of appeals's mandate has no bearing on the calculation of the one — year limitation period. The limitation period is not tolled whenever a petitioner files any sort of motion. Were it tolled so easily, a petitioner could repeatedly file motions, ones with little to no chance of success, and effectively eviscerate AEDPA's statute of limitations. See Raynor, 28 F. Supp.2d at 898. Yet, even if the Court tolled the time during which the motion to recall the mandate was pending, Sanchez-Butriago's petition is still untimely. From the date on which the Second Circuit denied the motion to reinstate the appeal, to the day the motion to recall the mandate was filed, October 26, 1999, 312 days passed. Were the time from the day the motion to recall the mandate was filed to the day it was refused tolled, Sanchez-Butriago would have had 53 days remaining to file a § 2255 petition. Sanchez-Butriago waited 316 days, however, to file the instant petition.
Petitioner raises two separate ineffective assistance of counsel claims. First, he claims that his trial counsel was ineffective because he did not call a witness that the defendant believed should have been called. The second is that appellate counsel failed to file an appeal before the limitation period for filing one expired. Since this petition is time barred there is no need to address these claims.
Conclusion
Pro se defendants cannot be expected to navigate the chicanes of the legal system as cleanly as a trained lawyer would. Thus, Courts are expected to give pro se defendants greater latitude than they would trained lawyers, and afford them the benefit of the doubt when at all possible. See Haines v. Kerner, 404 U.S. 519 (1972). Compliance with statutes of limitations, however, is not something on which the Courts are given much discretion or defendants great latitude. Certainly not when a defendant's petition is filed nearly nine months after the expiration of even the most liberal and generous calculation of the limitation period. To ignore the expiration of the one-year limitation period would run contrary to the purpose of a statute of limitations and undermine the intent of Congress in enacting AEDPA and 28 U.S.C. § 2244(d).Sanchez-Butriago's § 2255 petition is dismissed as untimely. The Court orders this case closed, and directs the Clerk of the Court to remove it from the Court's active docket.