Opinion
04 Civ. 2222 (RWS).
December 23, 2004
CHARLES WATSON, a/k/a Jean Bernier, Clinton Correctional Facility, Dannemora, NY, Petitioner Pro Se.
HONORABLE DAVID N. KELLEY, United States Attorney for the Southern District of New York Attorney for Respondent New York, NY, By: ELIE HONIG, Assistant US Attorney Of Counsel.
OPINION
Petitioner Charles Watson, a/k/a Jean Bernier ("Watson"), presently in custody and subject to a sentence imposed by this Court, seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The government has opposed the petition, which is denied for the reasons set forth below.
Prior Proceedings and Background
Watson was named in a seven-count indictment filed in this district on October 4, 1990 charging him with robbery of two different banks, including the Chase Manhattan Bank, as well as use of a firearm during commission of the robberies and possession of a firearm on three separate occasions. Following a bench trial, Watson was convicted on December 4, 1990 of two counts of bank robbery in violation of 18 U.S.C. § 2113, two counts of using a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c), and three counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g).
In June 1991 Watson was sentenced to a term of thirty-five years' imprisonment. This term of imprisonment includes five separate sentences of ten years' imprisonment related to the two robbery counts and the three firearm possession counts, to be served concurrently, as well as five years' imprisonment for the first count of using a firearm during the commission of a crime of violence, to be served consecutive to the initial ten-year sentence, and an additional twenty years' imprisonment for the second such violation, to be served consecutive to both the initial ten-year sentence and the subsequent five-year sentence.
On January 22, 1992 the United States Court of Appeals for the Second Circuit affirmed Watson's conviction and sentence. See United States v. Bernier, 954 F.2d 818 (2d Cir. 1992). Watson had argued to the Court of Appeals that "[n]either the language of section 924(c) nor the intent of Congress supports imposition of the enhanced [20-year] sentence for the second of two simultaneous convictions under the statute." Id. at 819. Although the Court of Appeals noted that this argument "raises an issue of first impression in this Circuit," the Court held that "[t]he plain language of the statute . . . means that the enhanced 20 year penalty must be imposed notwithstanding the simultaneity of the second conviction." Id.
Watson had also argued to the Court of Appeals that "he was denied the effective assistance of counsel at trial, in violation of his Sixth Amendment rights." Id. The Court of Appeals held that his ineffective assistance claim was "without merit." Id.
The United States Supreme Court denied Watson's petition for a writ of certiorari on May 24, 1993. See Bernier v. United States, 508 U.S. 941 (1993).
More than ten years later, Watson, proceeding pro se, has petitioned to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Watson's petition was received by the Pro Se Office of this district on February 19, 2004 and filed on March 19, 2004. In his petition, Watson contends that he received ineffective assistance of counsel because (1) "[d]uring the plea bargaining process, counsel . . . did not correctly advise petitioner of the sentence he was exposed to for a second conviction pursuant to 924(c), at the time 20 years"; (2) counsel advised Watson to sign a stipulation that the Chase Manhattan Bank was subject to coverage by the Federal Deposit Insurance Corporation (the "FDIC") at the time of the robbery, although counsel had not investigated whether the bank was in fact covered by the FDIC; and (3) "[t]he three convictions of 922(g) and sentences violate the double jeopardy clause for the same weapon" and "counsel at sentencing was ineffective for not objection to the two additional sentences for 922(g) possession." (Petition at 5-5A.) According to the petition, Watson is presently serving a state sentence and a detainer for service of his federal sentence has been filed.
Watson's first two claims concern his counsel at trial; the third claim concerns his counsel at sentencing, who also represented Watson on his direct appeal.
The government filed opposition to Watson's petition on May 14, 2004, asserting that Watson's ineffective assistance claims are time-barred and that, even if they were not, Watson has not satisfied the standard set forth for such claims in Strickland v. Washington, 466 U.S. 668 (1984).
On April 8, 2004 Watson applied for counsel to be appointed pursuant to 18 U.S.C. § 3006A(g), which application was denied with leave to renew. Following submission of the government's opposition to Watson's petition, Watson's renewed request for appointed counsel was granted, and counsel was appointed in July 2004. In the interim, Watson, proceeding pro se, submitted a reply to the government's opposition. Upon receipt of this reply on June 18, 2004, and in the absence of any supplemental submission by Watson's appointed counsel, the matter is deemed fully submitted as of June 18, 2004.
Discussion
In addressing the present petition, the Court is mindful that Watson was proceeding pro se in submitting both his petition and his reply papers, and his submissions will therefore be liberally construed and read to raise the strongest arguments they suggest. See, e.g., Abrahamson v. United States, No. 03 Civ. 4677 (RWS), 2004 WL 885830, at *1 (S.D.N.Y. Apr. 26, 2004); United States v. Erdil, 230 F. Supp. 2d 292, 297 (E.D.N.Y. 2002).
Section 2255 of Title 28 of the United States Code provides, in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.28 U.S.C. § 2255. A petitioner may not employ a § 2255 petition to relitigate claims already raised and considered on direct appeal. See United States v. Sanin, 252 F.3d 79, 83 (2d Cir.) (per curiam), cert. denied, 534 U.S. 1008 (2001); United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). In addition, a petitioner generally may not assert a claim in a § 2255 petition that he or she failed to raise on direct appeal unless the petitioner shows cause for the omission and prejudice resulting therefrom. See Bousley v. United States, 523 U.S. 614, 621-22 (1998); Perez, 129 F.3d at 260-61; United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995). This rule of procedural default does not extend to claims of ineffective assistance of counsel, which "may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003).
Procedural default is not the only hurdle faced by § 2255 petitioners. Section 105 of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, went into effect on April 24, 1996 and imposed a requirement that relief under § 2255 must be sought within one year of the petitioner's conviction becoming final or within one year of certain other enumerated events. Thus, by statute, the one-year 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.
With respect to petitioners whose convictions became final prior to the effective date of the AEDPA, the Court of Appeals for our circuit held in Mickens v. United States, 148 F.3d 145 (2d Cir. 1998), and Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), that due process required, for certain petitioners, the imposition of a grace period to file § 2255 petitions in light of the newly created statute of limitations. The Court of Appeals thus held that a federal prisoner whose conviction became final before the AEDPA became effective had one year from the AEDPA's effective date to file a § 2255 motion, or until April 24, 1997. See Ross, 150 F.3d at 103; Mickens, 148 F.3d at 147-48; accord Muniz v. United States, 236 F.3d 122, 124 (2d Cir. 2001) (per curiam).
Watson's conviction became final on May 24, 1993, when the United States Supreme Court denied Watson's petition for a writ of certiorari to the Second Circuit. See Bernier v. United States, 508 U.S. 941 (1993). Accordingly, under Mickens andRoss, Watson had until April 24, 1997 to file a petition pursuant to 28 U.S.C. § 2255. Unless Watson demonstrates that the one-year statute of limitations shall be calculated here pursuant to subsections (2), (3) or (4) of § 2255, his petition is time-barred inasmuch as it was filed nearly seven years after the grace period articulated in Mickens and Ross ended, and may not be considered on its merits. As Watson has not suggested that he was prevented from making a motion pursuant to § 2255 by governmental action in violation of the Constitution or laws of the United States or that his claims depend on facts belatedly brought to light, subsections (2) and (4) of § 2255 have no application here.
Watson has offered several arguments as to why his claims are not time-barred. First, he contends that his ineffective assistance claims were not raised on direct appeal because, prior to the decision in Massaro, "the Second Circuit did not entertain ineffective assistance of counsel claims on habeas corpus." (Petition at 6.) In an addendum to his reply papers Watson also questions whether Massaro enables Watson to file a § 2255 petition under the subsection of § 2255 that permits a petition within a year of a Supreme Court decision and whetherMassaro represents a substantive interpretation of a statute, and thus is not subject to the retroactivity concerns of Teague v. Lane, 489 U.S. 288 (1989), pursuant to Bousley v. United States, 523 U.S. 614 (1998). Watson further questions whether the application of the one-year statute of limitations, as applied to him, is a violation of the Suspension Clause of the United States Constitution, citing Rosa v. Senkowski, No. 97 Civ. 2468 (RWS), 1997 WL 436484 (S.D.N.Y. Aug. 1, 1997), and whether the savings clause of § 2255 would allow him to raise his claims pursuant to 28 U.S.C. § 2241. Finally, Watson queries whether the application of the one-year statute of limitations is "impermissibly retroactive" when applied to a petitioner, such as Watson, whose conviction predates the AEDPA. (Petitioner's Addendum to Reply at 1.) Each of Watson's arguments shall be addressed in turn.
Contrary to Watson's suggestion, ineffective assistance claims were permitted in § 2255 petitions prior to the Supreme Court's issuance of Massaro. See, e.g., Chang v. United States, 250 F.3d 79, 84 (2d Cir. 2001) (considering claims of ineffective assistance of counsel brought in a § 2255 petition); United States v. Pena, 233 F.3d 170, 174 (2d Cir. 2000) (noting that a court hearing a claim of ineffective assistance of counsel on direct appeal may "decline to hear the claim, permitting the appellant to raise the issue as part of a subsequent § 2255 petition"). Indeed, before Massaro, the rule in the Second Circuit was that ineffective assistance claims could be brought in § 2255 petitions regardless of whether the claims had first been asserted on direct appeal, except in those cases where (1) the petitioner was represented by new appellate counsel on direct appeal and (2) the ineffective assistance claim was based solely on the trial record. See Billy-Eko v. United States, 8 F.3d 111, 114-15 (2d Cir. 1993), abrogated by Massaro, 538 U.S. at 507-08. In these latter cases, petitioners seeking to raise ineffective assistance claims under § 2255 not previously raised on direct appeal were required to satisfy the cause-and-prejudice standard. See Billy-Eko, 8 F.3d at 115-16. Massaro abrogated the rule of Billy-Eko, thereby enabling petitioners who had not argued ineffective assistance of counsel claims on direct appeal to raise such claims in a § 2255 petition regardless of whether the claims could have been raised on direct appeal. See Massaro, 538 U.S. at 504.
Watson was not barred from asserting his present ineffective assistance claims in a § 2255 petition by the pre-Massaro rule of the Second Circuit. First, Watson raised ineffective assistance claims on direct appeal, which claims were considered and found "to be without merit" by the Second Circuit.Bernier, 954 F.2d at 819. Any bar to Watson bringing those same claims in a subsequent § 2255 petition would have resulted from the rule that claims previously considered may not be relitigated, see, e.g., Sanin, 252 F.3d at 83, not from the limitation on ineffective assistance claims articulated inBilly-Eko and rejected in Massaro. Moreover, to the extent that Watson's present claims vary from his earlier ineffective assistance claims raised on direct appeal, two of the three claims asserted in the petition concern advice given by his trial counsel (and thus depend on matter not part of the record developed at trial), and the third claim concerns the assistance provided by new counsel at sentencing, the same counsel who represented Watson on direct appeal. In view of these factors, the narrow Billy-Eko limitation on bringing ineffective assistance claims in a collateral attack would not have applied to any of the three claims. See Billy-Eko, 8 F.3d at 115. Since Watson was not procedurally barred by virtue of the rule set forth in Billy-Eko, the abrogation of that rule byMassaro therefore has no bearing on his case.
Even if the contrary were true, Massaro does not announce a new, substantive rule of constitutional law such as might alter the limitations period for filing a § 2255 petition, see 28 U.S.C. § 2255(3). Cf. Fountain v. United States, 357 F.3d 250, 254 (2d Cir. 2004) (construing Massaro as interpreting a "procedural default rule"), petition for cert. filed, 73 U.S.L.W. 3146 (U.S. Aug. 25, 2004) (No. 04-294); Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003) (explaining that "Massaro is not a constitutional decision").
Watson has questioned whether the application of the one-year statute of limitations, as applied to him, is a violation of the Suspension Clause, citing Rosa v. Senkowski, No. 97 Civ. 2468 (RWS), 1997 WL 436484 (S.D.N.Y. Aug. 1, 1997), aff'd on other grounds, 148 F.3d 134 (2d Cir. 1998) (per curiam). InRosa, decided before the Second Circuit had issued Mickens and Ross, this Court held that dismissing as time-barred a habeas petition brought pursuant to 28 U.S.C. § 2254 eleven months after the effective date of the AEDPA would violate the Suspension Clause of the United States Constitution. See Rosa, 1997 WL 436484, at *4-11.
The Suspension Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const., art. I, § 9, cl. 2.
The reasoning in Rosa has not been followed by other courts of this district, see Rhodes v. Senkowski, 82 F. Supp. 2d 160, 174 (S.D.N.Y. 2000) (collecting cases), and has been implicitly rejected by the Court of Appeals for this circuit.See Rodriguez v. Artuz, 161 F.3d 763, 764 (2d Cir. 1998) (per curiam), aff'g on opinion below 990 F. Supp. 275 (S.D.N.Y. 1998) (declining to follow Rosa). Indeed, the Court of Appeals has specifically held that the application of the statute of limitations established by the AEDPA is not a per se violation of the Suspension Clause. See Weaver v. United States, 195 F.3d 123, 125 (2d Cir. 1999) (per curiam); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 113 (2d Cir. 2000). "Thus, the Suspension Clause is not automatically implicated every time a petitioner's first § 2255 petition is denied as time-barred. . . ." Villanueva v. United States, 346 F.3d 55, 61 (2d Cir. 2003), cert. denied, 124 S. Ct. 2895 (2004). Other than a facial challenge to the limitations period imposed by the AEDPA, which is rejected in light of the authorities just identified, no other grounds from which a Suspension Clause challenge might be inferred are evident in Watson's papers.
Watson has queried whether the savings clause of § 2255 would allow him to raise his claims pursuant to 28 U.S.C. § 2241. The savings clause to which Watson refers provides that,
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.28 U.S.C. § 2255 (emphasis supplied). Where relief under § 2255 appears "inadequate or ineffective to test the legality of [a prisoner's] detention," the prisoner may seek relief under 28 U.S.C. § 2241. See Love v. Menifee, 333 F.3d 69, 73 (2d Cir. 2003) (citing Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997)), cert. denied, 124 S. Ct. 1478 (2004).
As the Court of Appeals has explained, however, § 2255 is "inadequate or ineffective" only when "the petitioner cannot, for whatever reason, utilize § 2255, and . . . the failure to allow for collateral review would raise serious constitutional questions." Triestman, 124 F.3d at 377; accord Jiminian v. Nash, 245 F.3d 144, 147 (2d Cir. 2001). Section 2255 is not "inadequate or ineffective" "whenever its gatekeeping provisions bar review of a petitioner's claim." Love, 333 F.3d at 73;see also Poindexter v. Nash, 333 F.3d 372, 378 (2d Cir. 2003), cert. denied, 124 S. Ct. 1486 (2004). In other words, "`serious constitutional questions' are not raised when AEDPA prevents a prisoner from raising a claim that he or she could have raised on direct review or in an earlier section 2255 motion." Love, 333 F.3d at 73 (quoting Jiminian, 245 F.3d at 147-48). "Thus, § 2241 review is not available in every case where § 2255 review is unavailable, but is possible `in those extraordinary instances where justice demands it.'" Yu v. United States, No. 99 Civ. 10272 (RWS), 2000 WL 1844763, at *3 (S.D.N.Y. Dec. 15, 2000) (quoting Triestman, 124 F.3d at 378).
To date, the Court of Appeals for this circuit has only recognized one type of case where serious constitutional questions are present: "cases involving prisoners who (1) can prove `actual innocence on the existing record,' and (2) `could not have effectively raised [their] claim[s] of innocence at an earlier time.'" Cephas v. Nash, 328 F.3d 98, 104 (2d Cir. 2003) (quoting Triestman, 124 F.3d at 363) (footnote omitted and alterations in original); see also Adams v. United States, 372 F.3d 132, 135 (2d Cir. 2004) (noting that the appellant was not entitled to bring a petition under § 2241 in lieu of § 2255 since the "petition does not raise serious constitutional questions because appellant has not alleged actual innocence and all of his arguments could have been raised — or in some cases actually were raised — in prior proceedings").
Watson's papers demonstrate that all of his claims could have been brought in an earlier petition under § 2255, and he has made no claims of actual innocence or otherwise raised a serious constitutional question. See, e.g., Poindexter, 333 F.3d at 380 (concluding that the petitioner's "claim of ineffective assistance of counsel was not based on any viable assertion that he is innocent of the instant offenses" and observing that "a petitioner who does not seek an opportunity to prove his innocence but instead seeks a benefit he asserts he would have received if he had pleaded guilty, simply is not making a claim of innocence") (internal quotations marks and citation omitted). Accordingly, there is no basis to construe Watson's petition as arising under § 2241 by virtue of the savings clause of § 2255.
Finally, Watson has queried whether the application of the one-year statute of limitations is impermissibly retroactive when applied to a petitioner, such as Watson, whose conviction predates the AEDPA. It was precisely to alleviate such retroactivity concerns that a one-year grace period for the filing of § 2255 petitions following the effective date of the AEDPA was established in Mickens and Ross. See, e.g., Rhodes, 82 F. Supp. 2d at 173 (explaining that "because Rhodes was afforded the full one-year to file his habeas petition after the AEDPA's effective date, applying the limitations period to his petition does not present retroactivity concerns or violate his due process rights").
As subsections (2), (3) and (4) of 28 U.S.C. § 2255 are not applicable here for the reasons set forth above and no circumstances suggesting that Watson is otherwise entitled to equitably tolling of his claims have been demonstrated, see generally Green v. United States, 260 F.3d 78, 82-83 (2d Cir. 2001), Watson's petition must be denied as untimely, having been filed more than a decade after his conviction became final and nearly seven years after the grace period set forth in Mickens and Ross expired. Consequently, the merits of Watson's claims shall not be reached.
Conclusion
For the reasons set forth above, Watson's petition is denied as time-barred. As Watson has not made a substantialshowing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore, 209 F.3d at 111-13.
It is so ordered.