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denying § 2255 petition where the court was "not . . . required to determine whether Petitioner's vacated state conviction would change his criminal history category from II to I because such a determination would be a meaningless academic exercise where it would have no effect on Petitioner's sentence"
Summary of this case from United States v. AndersonOpinion
00 Civ. 407 (RCC).
July 11, 2005
MEMORANDUM ORDER
Hector Aristis Almanzar-Duran ("Petitioner") amended his petition under 28 U.S.C. § 2255 to seek resentencing based on the vacatur of a prior state-court conviction that was used to enhance his federal sentence, and the Court set a resentencing date. The parties have since submitted briefs to the Court regarding whether resentencing is appropriate in light of the Supreme Court's recent decision in Johnson v. United States, 125 S. Ct. 1571 (2005). For the following reasons, the Court holds that, following Johnson, Petitioner's motion to amend is untimely and resentencing is not appropriate.
I. BACKGROUND
The facts relevant to Petitioner's vacatur of his state-court conviction and subsequent motion to amend his petition under 28 U.S.C. § 2255 are as follows. In August 1993, Petitioner was arrested after a police officer from the Thirtieth Precinct of the New York City Police Department ("Thirtieth Precinct") retrieved a bag of cocaine next to which Petitioner had been standing, and Petitioner attempted to bribe the officer with $5,000 to give the cocaine back. The following month, Petitioner pleaded guilty in New York State court to attempted criminal possession of a controlled substance in the third degree. In November 1993, Petitioner was sentenced to five years' probation by the state court. In April 1994, a number of officers from the Thirtieth Precinct were arrested and charged with criminal offenses, including accepting bribes and robbing cash and cocaine from neighborhood drug dealers. The Thirtieth Precinct was dubbed the "Dirty Thirty" by the media. Many defendants who had been arrested by officers in the Thirtieth Precinct moved successfully to vacate their convictions, and a number of them filed civil lawsuits against the City of New York under 42 U.S.C. § 1983 to recover damages for their arrests and incarceration. Petitioner, who was on probation during the time of the arrests and media coverage of the "Dirty Thirty" scandal, did not move to vacate his state-court conviction, nor did he file a lawsuit under § 1983.
In May 1994, Petitioner was involved in a narcotics transaction with an undercover agent of the Drug Enforcement Administration. Petitioner evaded arrest for the May 1994 narcotics transaction for more than a year until his arrest in September 1995. The following month, Petitioner was indicted on federal narcotics charges. In December 1995, the Government filed a prior felony information to reflect Petitioner's 1993 state-court conviction. On January 26, 1996, Petitioner was convicted, after a jury trial held before then — District Judge Sonia Sotomayor, for conspiring to distribute and possess with intent to distribute approximately four kilograms of cocaine in violation of 21 U.S.C. § 846. The judgment of conviction was entered in March 1997, and Petitioner was sentenced to a term of 168 months' incarceration and eight years' supervised release. The sentence was predicated on an offense level of 34 and a criminal history category of II under the United States Sentencing Guidelines. Petitioner was placed in criminal history category II based on additional criminal history points assigned because the 1994 federal offense was committed while Petitioner was on probation for the 1993 state offense.
Petitioner timely appealed, raising various ineffective-assistance-of-counsel claims. On December 17, 1997, the Second Circuit upheld Petitioner's conviction. United States v. Ganzales, 131 F.3d 132 (2d Cir. 1997) (summary order). Petitioner's conviction became final on April 20, 1998, when the Supreme Court denied his petition for writ of certiorari. See Duran v. United States, 523 U.S. 1078 (1998).
On December 13, 1999, Petitioner filed a petition under 28 U.S.C. § 2255, seeking to vacate his sentence on the grounds of an entirely new ineffective-assistance-of-counsel argument: that his trial counsel was ineffective for failing to convince Petitioner to accept an alleged plea offer from the Government, an offer that the Government disputes was ever made. While the § 2255 petition was sub judice, Petitioner filed two separate applications to amend his § 2255 petition. In January 2001, Petitioner sought amend the petition to add claims relating to the Supreme Court's decision in Apprendi v. United States, 530 U.S. 466 (2000).
On December 26, 2001, Petitioner moved to amend the petition for a second time, seeking resentencing based on a reduced criminal history category of I to reflect dismissal of the state-court indictment against him. The New York State Supreme Court, New York County, dismissed the 1993 state-court indictment against Petitioner on December 12, 2001, after Petitioner had moved to vacate the conviction in October 2001 — approximately eight years after Petitioner's state-court conviction and more than four years after the entry of the judgment of conviction of Petitioner in the federal case, but before Petitioner's second application to amend his then-pending § 2255 petition. Although the New York County District Attorney's Office did not claim that Petitioner was innocent of the 1993 narcotics offense for which he had been charged and convicted, the Office joined in Petitioner's motion by affidavit out of concern that Petitioner's constitutional rights may have been violated by the arresting officers of the Thirtieth Precinct who had since been prosecuted for perjury and other illegal acts as part of the "Dirty Thirty" scandal. In his second application to amend his § 2255 petition, Petitioner argued that the vacated conviction provided an invalid basis for enhancing his sentence.
The Government moved to dismiss Petitioner's § 2255 petition and requested that the Court deny Petitioner's two applications to amend the petition on the ground that all were time-barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). The Government argued that although generally "a defendant may seek a resentencing on his federal conviction after successfully attacking a prior state conviction that enhanced the federal sentence," Petitioner was "procedurally barred from making such a request." (Letter from the Gov't to the Court of 02/22/02 at 16.)
On May 1, 2002, the Court held that Petitioner's initial § 2255 petition was time-barred and denied Petitioner's first application to amend to add Apprendi claims as futile. Duran v. United States, Nos. 94 Cr. 300 (RCC) 00 Civ. 407 (RCC), 2002 WL 867864, at *3-8 (S.D.N.Y. May 3, 2002). The Court granted Petitioner's second motion to amend the petition, however, to add claims premised on the vacatur of the prior state conviction, and ordered the Government to respond to those claims on their merits. Id. at *8-9. Specifically, the Court found that Petitioner's second motion to amend his § 2255 petition was timely under the limitations period of 28 U.S.C. § 2255 ¶ 6(4) or alternatively under the doctrine of equitable tolling. Id.
On February 17, 2005, the Court denied Petitioner's motion for a new trial but scheduled Petitioner's resentencing on the ground that the Government had conceded that resentencing was appropriate to reflect the vacatur of the state-court narcotics conviction. By letter dated April 15, 2005, the Government sought to adjourn Petitioner's resentencing date so that the parties could brief the impact of the Supreme Court's April 4, 2005 decision in Johnson v. United States, 125 S. Ct. 1571 (2005), on the matter at hand.
By letter dated June 17, 2002, the Government noted that Petitioner's prior conviction impacted his sentencing on the federal charge by increasing his criminal history category from I to II, acknowledged that a § 2255 petition was "the appropriate vehicle by which such requests for resentencing should be made," and "concede[d] that the petitioner may be entitled to be resentenced in light of the vacatur of his state conviction" under then-existing precedent. (Letter from the Gov't to the Court of 06/17/02 at 11.) By letter dated July 18, 2002, the Government reiterated its position that "the vacatur of Almanzar-Duran's 1993 conviction . . . may warrant a resentencing." (Letter from the Gov't to the Court of 07/18/02 at 5.)
II. DISCUSSION
A. Limitations Period Under the Antiterrorism and Effective Death Penalty Act
Under the AEDPA, a federal prisoner filing a § 2255 petition must do so within a one-year statute of limitation that runs 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 constitutional 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 ¶ 6(1)-(4). There is no dispute that, if the § 2255 petition here were governed by the statutory provision set forth in subsection (1), it would be untimely, and Petitioner does not argue that either subsection (2) or (3) applies. Petitioner does contend, however, that the statutory provision set forth in subsection (4) governs the commencement of the limitations period for his second motion to amend his § 2255 petition.
B. "New Facts" and "Due Diligence" Under the Johnson Decision
The Supreme Court held in Johnson v. United States, 125 S. Ct. 1571 (2005), that notice of a state court's order vacating any conviction that had been used to enhance a federal sentence is a new "fact" that triggers a renewed one-year limitations period in which to seek collateral review of the federal sentence under § 2255 ¶ 6(4). The rule is qualified, however, by the condition that the petitioner "is obliged to act diligently to obtain the state-court order vacating [the] predicate conviction." 125 S. Ct. at 1582. A petitioner's prevacatur diligence is measured from the date of entry of the petitioner's later federal judgment, and Johnson held that an unexplained 21-month delay between the date of judgment and the petitioner's steps to obtain a state-court order vacating his predicate conviction was not "diligent" as a matter of law. Id. In sum, a petitioner cannot obtain collateral review under the renewed limitations period of § 2255 ¶ 6(4) on the basis of vacatur of a predicate state-court conviction unless he can show that he used due diligence in seeking the vacatur itself. Id.
In support of his position that his second motion to amend his § 2255 petition is timely under Johnson, Petitioner argues that he acted with due diligence in attacking the 1993 state-court conviction that was used to enhance his 1997 federal sentence. But Petitioner waited approximately 54 months after judgment was entered in the federal case against him and approximately 41 months after his federal conviction became final before seeking to vacate the state-court conviction. Again, an unexplained 21-month delay in obtaining a state-court order vacating a predicate conviction is not "diligent" as a matter of law.Johnson, 125 S. Ct. at 1582; see also Wilson v. United States, No. 03-3581, 2005 WL 1540254, at *3 (7th Cir. July 1, 2005) (applyingJohnson and holding that if "an unexplained 21-month delay is too long; an unexplained 38-month delay also must be too long");United States v. Griffin, No. 03-15546, 2005 WL 1208541, at *2 (11th Cir. May 11, 2005) (holding that, following Johnson, a three-year delay between the date of a petitioner's federal conviction and the date the petitioner sought vacatur of a predicate state-court conviction was unreasonable). Petitioner's counsel offers various explanations for Petitioner's delay, none of which is satisfactory under the AEDPA.
One offered explanation for Petitioner's delay is that he was proceeding pro se and did not realize that he could challenge his state conviction before initiating a collateral proceeding. (See Letter from Petitioner's Counsel to the Court of 05/13/05 at 3.) The Court rejects this argument. In Johnson, the Supreme Court explicitly rejected the petitioner's attempts to explain his delay on the ground that he was proceeding pro se and lacked the sophistication to understand the procedures, noting that the Court had "never accepted pro se representation alone or procedural ignorance as an excuse when a statute's clear policy calls for promptness." 125 S. Ct. at 1582.
A second explanation for Petitioner's delay advanced by Petitioner's counsel is that Petitioner "was in prison, cut-off from the news freely available in the outside world" such that "[i]t is sophistry to suggest that [Petitioner], sitting in a Fort Dix federal prison cell in southern New Jersey, should be held to have known about police corruption in the 30th precinct of New York, realized its ramifications pertained to him and acted upon this information." (Letter from Petitioner's Counsel to the Court of 05/13/05 at 3.) The Court also rejects this argument. Petitioner was clearly aware, at the time of his arrest in 1993, of the facts that ultimately served as the basis for Petitioner's 2001 motion to vacate his state-court conviction. For one, Petitioner was on probation when news of the Dirty Thirty scandal was widely publicized in the New York metropolitan area, not in prison.
But beyond media coverage and any speculation as to whether Petitioner was or should have been aware of corruption in the Thirtieth Precinct because of such media coverage, Petitioner has made it clear that he had first-hand knowledge of the corruption in the Thirtieth Precinct and its relevance to his case as early as the time of his arrest in 1993. In his September 2001 affidavit in support of his notice to vacate his state-court conviction, for example, Petitioner explains that, not only was he cognizant of the corruption in the Thirtieth Precinct as early as 1993, he had actively participated in drug transactions with at least one officer of the precinct, Officer Ekerson. (See Aff. Petitioner of 09/24/01 at 3-4.) Petitioner's affidavit makes clear that Petitioner was fully aware, well before he was convicted in federal court, of the facts that — eight years later — formed the basis of his motion to vacate his state-court conviction, namely purportedly false statements in the state complaint against him and of drug trafficking by Officer Ekerson.
In challenging his state-court conviction in 2001, Petitioner did not contest that he had been involved in a narcotics transaction with Officer Ekerson. Rather, he raised a technical challenge to his conviction (based on the fact that a different officer, i.e., not Officer Ekerson, had sworn out the complaint against him) coupled, curiously, with an argument that the conviction should be vacated on the ground that his arrest was the product of his attempt to shortchange Officer Ekerson during the clearly illegal drug transaction in which he admitted participating. (See Aff. Petitioner of 09/24/01 at 4.) In the affidavit, Petitioner confirmed his awareness of the fact that, "Ekerson and others were arrested and charged with corruption and bribery in relation to drugs and fram[ing] drug dealers." (Id.)
Petitioner further argues that, under the law of the case, Petitioner's motion to amend his § 2255 petition is timely. The Court also rejects this argument. The doctrine of law of the case "posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case," Arizona v. California, 460 U.S. 605, 618 (1983), and "when a court has ruled on an issue, that decision should generally be adhered to by that court in subsequent states in the same case, unless cogent and compelling reasons militate otherwise," United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002) (internal quotation marks and citation omitted). "Cogent and compelling reasons" include "an intervening change of controlling law." United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000) (internal quotation marks and citation omitted). For the reasons set forth herein, the Johnson decision is controlling and precludes resentencing in this case. And to the extent that Petitioner's law-of-the-case argument rests on the Court's May 2002 ruling regarding equitable tolling, Petitioner misreads the Court's findings as they apply under Johnson. The Court held in its May 2002 opinion that the delay between the date of vacatur of Petitioner's state-court conviction and the date of Petitioner's second motion to amend (to reflect the vacatur), a mere "matter of weeks," presented a "compelling case for equitable tolling." Duran, 2002 WL 867864, at *9. But the Court made no finding as to Petitioner's diligence between the date that the federal judgment was entered and the time that he sought the vacatur of his state-court conviction — the period highlighted by Johnson as that during which a petitioner must proceed with diligence. See 125 S. Ct. at 1582.
Applying Johnson, Petitioner's second motion to amend was not timely under § 2255 ¶ 6(4). Petitioner's lack of diligence in challenging his 1993 state-court conviction after federal judgment was entered against him in 1997 precludes him from amending his § 2255 petition to challenge the use of the vacated conviction in computing his 1997 federal sentence. Regardless, even if Petitioner's amendment had been timely made underJohnson, it would have failed on the merits.
C. Petitioner's Sentence Did Not Represent a Complete Miscarriage of Justice
Section 2255 provides a prisoner in federal custody a remedy to attack his federal sentence "upon the ground that the sentence was imposed upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States," 28 U.S.C. § 2255 ¶ 1, but collateral relief under § 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes `a fundamental defect which inherently results in a complete miscarriage of justice,'"United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (emphasis added) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
Even if Petitioner's motion to amend his § 2255 petition was timely, Petitioner would not be able to illustrate that his sentence, as predicated on an offense level of 34 and a criminal history category of II — and resulting in a sentencing range of 168 to 210 months' imprisonment — represented a complete miscarriage of justice. Petitioner was sentenced to a term of 168 months' incarceration, a term also within the 151- to 188-month range yielded by an offense level of 34 and a reduced criminal history category of I. And even if Petitioner's vacated state conviction were to change his criminal history category from II to I, the Court would have sentenced him to a 168-month sentence to reflect the seriousness of the offense for which Petitioner was convicted. The Second Circuit has noted that "when a dispute at issue has no bearing on the determination of the sentence duration, district courts need not rule on disputes concerning . . . the appropriate criminal history category." United States v. Borrego, 388 F.3d 66, 68-70 (2d Cir. 2004). That is, even if the Court were to accept Petitioner's second motion to amend his § 2255, That is, even if the Court were to accept Petitioner's second motion to amend his § 2255, the Court would not be required to determine whether Petitioner's vacated state conviction would change his criminal history category from II to I because such a determination would be a "meaningless academic exercise" where it "would have no effect on [Petitioner's] sentence." See id.
The Second Circuit has ruled that, in other contexts, guideline disputes that would not have affected the defendant's ultimate sentence need not be adjudicated on appeal. See United States v. Shuster, 331 F.3d 294, 296 (2d Cir. 2003) (noting that "[o]ne example is where a sentence falls within . . . adjacent overlapping ranges . . ., the parties challenge some adjustment that would affect which of the two ranges is applicable, and the sentencing judge makes clear that the same sentence would have been imposed whichever one of the two ranges applied"); United States v. Larson, 112 F.3d 600, 606 (2d Cir. 1997) (ruling that a challenge to which of two criminal history categories was States v. Mayo, 14 F.3d 128, 132 (2d Cir. 1994) (ruling that a challenge to which of two criminal history categories was appropriate need not be adjudicated where the same sentence would have been imposed in any event); United States v. Bermingham, 855 F.2d 925, 931 (2d Cir. 1988) (noting that "disputes about applicable guidelines need not be resolved where the sentence falls within either of two arguably applicable guideline ranges and the same sentence would have been imposed under either guideline range").
III. CONCLUSION
For the foregoing reasons, Petitioner's motion to amend his § 2255 petition to vacate, set aside, or correct his sentence is DENIED as untimely. The Clerk of the Court is directed to close this case and remove it from the Court's active docket.
So ordered.