Opinion
01 Civ. 4539 (HB), 96 Cr. 1145 (HB)
August 29, 2002
OPINION ORDER
Francisco Teodoro Azcona ("Azcona") brings this petition pursuant to 28 U.S.C. § 2255 to vacate and set aside or correct his sentence entered by this Court on August 21, 1997. Azcona alleges that (1) the Court failed to notify him during the plea hearing that the type and quantity of narcotics were elements of the offense that the government was required to prove at trial; (2) the Court lacked jurisdiction to impose a sentence based on a quantity of narcotics greater than that charged in the indictment or based on the defendant's managerial or supervisory role in the offense; (3) his counsel was ineffective for advising him to stipulate in the plea agreement that the offense included between three and ten kilograms of heroin and that he acted in a managerial or supervisory role in the offense; and (4) that his conviction violated the Constitution because the type and quantity of narcotics were not charged in the indictment as elements of the offense. For the following reasons, the motion is DENIED and the petition is dismissed.
I. BACKGROUND
On December 10, 1996, Azcona and eight co-defendants were indicted on two counts of conspiracy to distribute one and more kilograms of heroin in violation of 21 U.S.C. § 846. Azcona pleaded guilty on May 2, 1997, to count one pursuant to a plea agreement in which the government agreed not to further prosecute him for the other conduct described in the indictment. The plea agreement included, among other terms: (1) an agreed-upon Sentencing Guidelines range of 168-210 months; (2) an agreement by both parties not to seek a departure or adjustment outside of the agreed-upon Guidelines range, and; (3) a waiver by Azcona of his right to appeal, or otherwise litigate under 28 U.S.C. § 2255, any sentence imposed within or below the stipulated Guidelines range. See Plea Agreement, at 4-6.
On August 21, 1997, I sentenced Azcona to 168 months imprisonment, a five year term of supervised release, and a mandatory $100 special assessment. Azcona did not file an appeal. On April 7, 2001, Azcona filed the instant petition.
While the petition was not filed with this court until May 29, 2001, Azcona had delivered his petition to prison authorities on April 7, 2001. It is this earlier date that Azcona's petition is deemed to have been filed. See Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir. 2001) (noting the "prison mailbox" rule); see also Fed.R.App.P. 25(a)(2)(C) ("A paper filed by an inmate confined in an institution is timely filed if deposited in the institution's internal mail system on or before the last day for filing.").
II. DISCUSSION
A. Azcona's petition is untimelyPursuant to the 1996 enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), an application for a writ of habeas corpus is subject to a one-year period of limitation which 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 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.
Azcona's petition is clearly untimely under § 2255(1). Azcona pled guilty on May 2, 1997, and was sentenced on August 21, 1997. His judgment of conviction was entered on September 30, 1997. Azcona's conviction therefore became final ten business days later on October 14, 1997, since he failed to appeal the judgment — a right that he waived in the plea agreement. See Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000) (conviction becomes final on the day the time to appeal expires); see also German v. United States, 2002 WL 1558402, at *1 (S.D.N.Y. July 3, 2002) (Rakoff, J.) ("Case law is clear that, where no review is sought, the final date of the conviction is ten business days from the entry of the judgment of conviction, which is the deadline for filing a notice of appeal under Fed.R.App.P. 4(b)(1).") (citing cases). Azcona therefore had until October 14, 1998, to file a timely habeas under § 2255(1) but failed to do so until nearly two-and-a-half years later.
Azcona had an opportunity in his reply papers to address the untimeliness of his petition, an argument raised by the government in its opposition. Azcona fails to provide any reasonable or meritorious justification as to why it took him nearly four years after his conviction to file his petition. He does not claim that the government impeded the filing of his motion for habeas relief under § 2255(2), nor does he allege pursuant to § 2255(4) that the facts supporting his claims could not have been discovered through the exercise of due diligence until after the limitations period had expired. Azcona seeks to explain his untimely petition under § 2255(3), which delays commencement of the one-year limitations period until "the date on which the right asserted [in the motion] 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." 28 U.S.C. § 2255 (3). Azcona asserts several claims based on the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000). Accordingly, he argues that Apprendi constitutes a newly recognized right that should serve to save his petition under § 2255(3). Without reaching the issue of the retroactivity of Apprendi, I find that Apprendi is inapposite to Azcona's case.
To qualify under § 2255(3), the recognized right must apply retroactively to cases on collateral review. The Second Circuit recently heard arguments regarding the retroactivity of Apprendi, but has yet to render its decision. See Beatty v. United States, 293 F.3d 627, 631 n. 3 (2d Cir. 2002) (citing United States v. Luciano (Parise), No. 01-1198 (2d Cir. argued Jan. 28, 2002)). The Supreme Court has also not ruled on this issue. See Forbes v. United States, 262 F.3d 143, 146 (2d. Cir. 2001) (per curiam) (denying petitioner leave to file a second § 2255 motion since "no pronouncement has yet been made by the Supreme Court on the retroactivity of Apprendi" and petitioner is therefore "unable to meet the pertinent requirement of § 2255"). However, courts in this Circuit have held against finding Apprendi retroactive with respect to § 2255 motions. See e.g., Donaldson v. United States, 2002 WL 1839213, at *3 (S.D.N.Y. August 6, 2002) (McCurn, J.) ((finding that Apprendi "is not retroactively applicable to cases on collateral review"); Vega v. United States, 2002 WL 1788015, at *3 (S.D.N.Y. August 2, 2002) (Keenan, J.) ("[C]ourts in the Southern District of New York have held that the Apprendi rule . . . is inapplicable retroactively to cases on collateral review) (citing cases).
In Apprendi, the Supreme Court held that, "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. However, "[t]he constitutional rule of Apprendi does not apply where the sentence imposed is not greater than the prescribed statutory maximum for the offense of conviction." Thomas v. United States, 274 F.3d 655, 664 (2d Cir. 2001). Azcona pleaded guilty to one count of conspiring to distribute heroin in violation of 21 U.S.C. § 846, the statutory penalty for which is not more than twenty years' imprisonment. See 21 U.S.C. § 841 (b)(1)(C).
Petitioner's sentence of 168 months in prison did not exceed the statutory maximum and Apprendi therefore does not apply. See United States v. Garcia, 240 F.3d 180, 183 (2d Cir. 2001). Azcona's petition is thus untimely under § 2255(3) and barred by the AEDPA's statute of limitations.
B. Azcona's failure to appeal
Even if Azcona's petition were not untimely, all of his claims, save perhaps that for ineffective assistance of counsel, are barred by his failure to raise them on direct appeal. See United States v. Frady, 456 U.S. 152, 165 (1982) (stating that a § 2255 motion may not be used as a substitute for a direct appeal); Abbamonte v. United States, 160 F.3d 922, 924 (2d Cir. 1998) (noting that an issue generally cannot be presented in a § 2255 motion if it could have been raised on direct appeal, whether it was actually raised on appeal or not).
While Azcona's claim of ineffective assistance of counsel may survive notwithstanding his failure to raise it on appeal; see Bloomer v. United States, 162 F.3d 187, 192 (2d Cir. 1998) (noting that claims of ineffective assistance in certain circumstances may be raised for the first time in § 2255 habeas petition), his claim is nonetheless without merit. Azcona asserts that his counsel was ineffective because he permitted Azcona to stipulate in the plea agreement to the amount of drugs involved, three to ten kilograms of heroin, and that Azcona played a managerial or supervisory role in the offense.
To prevail on a claim of ineffective assistance of counsel, a petitioner must (1) show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) "affirmatively prove prejudice." See Strickland v. Washington, 466 U.S. 668, 687-88, 693-94 (1984). In the context of a guilty plea, petitioner must show that "but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001).
Petitioner fails to meet either prong of the Strickland test. Azcona's stipulation to the amount of heroin and his role in the offense were terms of the plea agreement from which he received significant benefit. For instance, the government agreed to a Sentencing Guidelines range of 168 to 210 months, a more lenient prison term than what he likely would have received had he been convicted at trial. Additionally, petitioner allocuted that he was satisfied with his counsel's performance, (Plea Tr. at 5), and that he understood the terms of the plea agreement (Id. at 9). Additionally, Azcona never asserts that the stipulation was inaccurate, nor does he offer a suggestion as to why his counsel's advice to enter the stipulation was in error.
For instance, had he proceeded to trial Azcona may not have been afforded the benefit of a two-level reduction in-his offense level for acceptance of responsibility under U.S.S.G. § 3E1.1 (a), which he received as a result of his plea agreement.
In any event, Azcona fails to show that but for his counsel's advice, there is a reasonable probability that he would have insisted on proceeding to trial. Azcona allocuted in his own words to his guilt and the nature of his crime. (Id. at 13). As the government notes, if this case had proceeded to trial, the prosecution was prepared to offer cooperator testimony and recorded telephone conversation to prove Azcona's guilt. (Id. at 12). I find that Azcona fails to show that he was denied effective assistance of counsel.
C. Azcona waived his right to appeal or move under § 2255
Finally, as the government asserts, Azcona's claims are barred by the provision in his plea agreement in which he waived his right to appeal his sentencing under § 2255 since the sentence falls within the stipulated guidelines range set forth in the agreement. See United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995) (finding such waivers enforceable).
III. CONCLUSION
For all the foregoing reasons, the petitioner's motion to vacate and set aside or correct his sentence is DENIED and the petition is dismissed. The Clerk of the Court is instructed to close this case and remove it from my docket.
SO ORDERED