Opinion
No. 05 Civ. 3553 (SAS).
March 13, 2006
Petitioner (Pro Se): Miguel Nunez Calderon Federal Secure Low ("FSL") — Elkton Lisbon, Ohio.
For Respondent:
Victor L. Hou Assistant United States Attorney New York, New York
MEMORANDUM OPINION AND ORDER
Miguel Nunez Calderon, proceeding pro se, has moved to vacate, set aside, or correct his sentence pursuant to section 2255 of Title 28 of the United States Code ("section 2255"). Nunez argues that his attorney was ineffective in failing to: (1) obtain a downward departure based on extraordinary family circumstances; and (2) obtain a minor role adjustment similar to the one given to his co-defendant, Jose Taveras. For the reasons set forth below, Nunez's motion is denied.
I. BACKGROUND
Nunez was charged in a two-count Indictment on October 8, 2002. Count One charged Nunez with conspiracy to distribute narcotics in violation of 21 U.S.C. § 846. Count Two charged Nunez with possession and distribution of more than one kilogram of heroin in violation of 21 U.S.C. § 841(b)(1)(A). The charges stemmed from Nunez's extended negotiations to sell approximately five kilograms of cocaine and one kilogram of heroin to a confidential informant working with the Drug Enforcement Agency. On July 11, 2002, Nunez delivered to the informant one kilogram of heroin which belonged to Taveras's employer.
On July 11, 2003, Nunez appeared before Magistrate Judge Theodore H. Katz and pled guilty to both counts of the Indictment pursuant to a plea agreement (the "Plea Agreement") with the Government. The Plea Agreement stipulated that Nunez "will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Sentencing Guidelines Range of 70 to 87 months. . . ." The parties further agreed that neither a downward nor an upward departure from the Stipulated Guidelines Range was warranted and that neither party would seek such a departure or any other adjustment not set forth in the Plea Agreement. On September 30, 2003, this Court adopted the recommendation of Magistrate Judge Katz and accepted Nunez's guilty plea.
June 12, 2003 Plea Agreement, Ex. A to the January 6, 2006 Letter from Assistant United States Attorney Victor L. Hou to the Court ("Hou Letter"), at 4.
See id. at 3.
Prior to sentencing, Nunez submitted several letters to this Court ex parte and without the knowledge of his counsel. In a letter dated October 5, 2003, Nunez asked for a downward departure based upon his daughter's hearing impairment and need for surgery. In another letter, undated but postmarked August 18, 2003, Nunez requested a minor role adjustment. Nunez followed up on this request in a subsequent letter.
See Undated Letter from Nunez to the Court, Ex. E to Hou Letter.
See October 19, 2003 Letter from Nunez to the Court, Ex. E to Hou Letter ("I am sending you a copy of the memorandum of the United States Sentencing Guidelines for minimal participants, non-violent, first-time offenders. Of which I fit the criteria.").
At sentencing, this Court adopted the findings of fact set forth in the Presentence Report. At offense level 27, Criminal History Category I, the applicable Guidelines range was 70 to 87 months in custody. I then gave Nunez's attorney, John Curley, an opportunity to address the Court. Curley informed the Court that his client was aware that his co-defendant, Jose Taveras, was being offered a better plea but that his client's case was "significantly different." Curley then explained that pursuing a minor role reduction would not be to his client's advantage. With regard to the family circumstances departure, Curley stated that his client "would abide by the terms of the plea agreement because we had not received independently any information that would refute the government's position" regarding the applicability of a downward departure. Nunez accepted this with the understanding that the Court could be lenient based on his daughter's hearing problems, if deemed appropriate. After hearing Nunez describe his role in the offense, the sentence was adjourned so that certain factual allegations could be investigated.
See October 23, 2003 Sentencing Transcript, Ex. C to Hou Letter, at 10.
Id. at 11.
See id. at 11-12.
Id. at 12.
See id.
See id. at 37.
At the second sentencing proceeding, Nunez informed the Court that he was prepared to proceed pursuant to the Plea Agreement. I reviewed the calculation of the total offense level and the resulting Guidelines range. I then sentenced Nunez to the lowest end of the Guidelines range, 70 months imprisonment. Nunez did not appeal his conviction or sentence.
See October 31, 2003 Sentencing Transcript, Ex. D to Hou Letter, at 2.
See id. at 3.
See id. at 5.
II. LEGAL STANDARDS
A. Section 2255
Section 2255 allows a convicted person held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. Accordingly, collateral relief under section 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.'"
See 28 U.S.C. § 2255.
United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Accord United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989) ("Habeas corpus relief is generally available only to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.").
B. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") introduced for the first time a statute of limitations with respect to the filing of habeas corpus petitions. Pursuant to AEDPA, an application for a writ of habeas corpus is subject to a one-year period of limitation which runs from the latest of:
Pub.L. No. 104-132, 110 Stat. 1214.
See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998).
(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 or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
In Clay v. United States, 537 U.S. 522, 527 (2003), the Supreme Court held that a conviction becomes final when the Supreme Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." 402 F.3d 116, 118 (2d Cir. 2005). "[A]n unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires." Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005) (citing Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (finding that "an unappealed federal criminal judgment becomes final ten days after it is entered"); Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999) ("If a defendant does not pursue a timely direct appeal to the court of appeals, his or her conviction and sentence become final, and the statute of limitation begins to run, on the date on which the time for filing such an appeal expired.")).
28 U.S.C. § 2255.
C. Waiver of Collateral Attack Rights
"[W]aivers of the right to appeal a sentence, like waivers of constitutional rights, are invalid unless they are voluntary and knowing." An agreement to waive appellate and/or collateral attack rights is not enforceable unless "the record `clearly demonstrates' that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary." Thus, a defendant's knowing and voluntary waiver of his right to attack his sentence pursuant to section 2255 is generally enforceable.
United States v. Monzon, 359 F.3d 110, 116 (2d Cir. 2004) (internal quotation and citation omitted, bracket in original).
Id. (internal quotation and citation omitted).
See, e.g., Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002) ("There is no general bar to a waiver of collateral rights in a plea agreement.") (citing Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001) (per curiam)); Monzon, 359 F.3d at 116 ("Where the record clearly demonstrates that the defendant's waiver of her right to appeal a sentence within an agreed Guidelines range was knowing and voluntary, that waiver is enforceable.").
An enforceable section 2255 waiver bars claims based on grounds that arose after, as well as before, the agreement was signed. "However, a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured, here, the plea agreement."
See Garcia-Santos, 273 F.3d at 509 ("There is every reason to believe the parties intended the waiver to apply to claims of error at sentencing as well as to claims relating to pre-pleading events since, for a defendant who pleads guilty, the main contested issues are ordinarily about the sentencing.").
Frederick, 308 F.3d at 195 (citing United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001) (per curiam) ("[A] plea agreement containing a waiver of the right to appeal is not enforceable where the defendant claims that the plea agreement was entered into without effective assistance of counsel."); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999) (holding that a waiver of the right to file a section 2255 motion is unenforceable where the defendant claims ineffective assistance of counsel with respect to the plea agreement containing the waiver)).
III. DISCUSSION
A. The Motion Is Time-Barred
The Judgment memorializing Nunez's sentence was docketed on November 5, 2003. Because Nunez did not appeal, his conviction became final ten days later, on November 15, 2003. Nunez's motion is premised on claims of ineffective assistance of trial counsel, not on newly discovered evidence or any right newly recognized by the Supreme Court. Accordingly, he had one year, until November 15, 2004, in which to file a section 2255 motion. However, Nunez's motion is dated March 17, 2005. Thus, in the absence of equitable tolling, the instant motion is time-barred.
The Second Circuit has held that the doctrine of equitable tolling applies only in rate and exceptional circumstances, where a party "has been prevented in some extraordinary way from exercising his rights." "When determining whether equitable tolling is applicable, a district court must consider whether the person seeking application of the equitable tolling doctrine (1) has `acted with reasonable diligence during the time period she seeks to have tolled,' and (2) has proved that the circumstances are so extraordinary that the doctrine should apply." The question, in other words, is whether extraordinary circumstances beyond petitioner's control prevented successful filing in a timely manner.
See Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001).
Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (internal quotation and citation omitted).
Zerilli-Edelglass v. New York City Trans. Auth., 333 F.3d 74, 80-81 (2d Cir. 2003) (quoting Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 512 (2d Cir. 2002)).
See Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
As an excuse for his late filing, Nunez alleges that he "was not aware of the shortcomings of his trial counsel before now." According to Nunez, "he had only learned of the incompetence of counsel on February 15, 2005, when another fellow inmate brought it to [his] attention." Even if true, Nunez's ignorance does not warrant equitable tolling under these circumstances. Nunez's attorney did not move for a downward departure or a minor role adjustment at the sentencing proceedings held in October 2003. If these omissions could be viewed as ineffective assistance of counsel, that ineffectiveness was apparent at the time of sentencing. If Nunez was truly unaware, at the time of sentencing or shortly thereafter, of any perceived deficiencies in his lawyer's conduct, such ignorance was the result of his own inexcusable neglect. Nunez has thus failed to show that he is entitled to the benefit of equitable tolling.
Memorandum to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 at 14.
Id.
See Larson v. American Wheel Brake, Inc., 610 F.2d 506, 510 (8th Cir. 1979) ("[I]gnorance of legal rights does not toll a statute of limitations."); Quina v. Owens-Corning Fiberglas Corp., 575 F.2d 1115, 1118 (5th Cir. 1978) (holding that an employee's ignorance of his statutory rights, in itself, did not toll a statute of limitations). Cf. Taylor v. West Oregon Elec. Co-op., Inc., No. CV-03-01311-ST, 2005 WL 2709540, at *5 (D. Or. Oct. 21, 2005) ("Equitable tolling is not appropriate and the time period for filing `begins to run when the facts that would support a charge of discrimination would have been apparent to a similarly situated person with a reasonably prudent regard for his rights.'") (quoting Boyd v. United States Postal Serv., 752 F.2d 410, 414 (9th Cir. 1985)).
See Lehman v. United States, 154 F.3d 1010, 1016 (9th Cir. 1998) (equitable tolling is "not available to avoid the consequences of one's own negligence").
In sum, Nunez's conviction became final on November 15, 2003. Nunez therefore had until November 15, 2004 in which to move under section 2255. Under the so-called "mailbox rule," the deemed filing date is March 17, 2005, over four months after the expiration of the one-year statute of limitations. Given the absence of equitable tolling, Nunez's section 2255 motion is time-barred and must be dismissed.
See Feliz v. United States, No. 95 CR 5, 2001 WL 930840, at *3 (S.D.N.Y. Aug. 15, 2001) (dismissing petitioner's ineffective assistance of counsel claim as untimely where the petition was not filed until two and a half years after the conviction became final); Goldwire v. United States, No. 98-CV-7153, 1998 WL 1062797, at *1 (E.D.N.Y. Apr. 13, 1998) (dismissing as time-barred a petition filed well beyond the applicable grace period).
B. Petitioner Validly Waived His Collateral Attack Rights
Nunez's motion must also be dismissed based on his waiver of the right to seek collateral relief. Under the express terms of the Plea Agreement, Nunez waived the right to collaterally attack his sentence if that sentence was within or below the stipulated Guidelines range of 70 to 87 months. Nunez makes no allegation that the waiver of his collateral attack rights was unknowing, involuntary, or otherwise invalid. Nor did Nunez claim that he received ineffective assistance of counsel with respect to the Plea Agreement or during the course of the plea negotiations. Thus, the constitutionality of the process by which Nunez waived his right of collateral attack is not in issue.
Nunez would be hard-pressed in making such allegations given the statements he made during his plea allocution before Magistrate Judge Theodore H. Katz. Initially, Nunez stated that he discussed the Plea Agreement with his attorney and that he understood the terms of the Plea Agreement. See July 11, 2003 Plea Allocution, Ex. B to Hou Letter, at 10. Furthermore, Nunez answered in the affirmative when Judge Katz specifically asked him if he understood "that as part of the agreement that you reached with the government, you have waived your right to appeal your sentence if Judge Scheindlin should sentence you within the range of between 70 and 87 months in prison. . . ." Id. at 18. Given that the waiver of collateral attack rights immediately follows the waiver of appellate rights in the Plea Agreement, Nunez cannot credibly argue that he understood one but not the other.
See Luna v. United States, No. 98 Civ. 7970, 1999 WL 767420, at *5 (S.D.N.Y. Sept. 28, 1999) (upholding waiver where petitioner did not aver that "his acceptance of the plea agreement as a whole, and hence his acquiescence to the provision in which he waived his right to litigate his sentence under § 2255, were either unknowing or involuntary").
Recognizing the validity of the waiver of his right to collaterally attack his sentence, Nunez couched his claims in terms of ineffective assistance of counsel. Despite the terminology used, Nunez is actually challenging the correctness of his sentence when he argues that he should have received a family circumstances departure and a minor role adjustment. Any challenges to his sentence, however, are barred by the section 2255 waiver. Accordingly, as an alternative to the timeliness ground, the instant motion can be denied on the basis of the section 2255 waiver set forth in the Plea Agreement.
See United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998) ("If we were to allow a claim of ineffective assistance of counsel at sentencing as a means of circumventing plain language in a waiver agreement, the waiver of appeal provision would be rendered meaningless."); Santiago-Diaz v. United States, 299 F. Supp. 2d 293, 299 (S.D.N.Y. 2004) ("The Court finds that [petitioner's] attack on the performance of his counsel is nothing more than a thinly-veiled endeavor to circumvent the waiver of his right to challenge his sentence. A claim of ineffective assistance of counsel is not a vehicle for a criminal defendant to attempt an end-run around a knowing and voluntary waiver of his right to appeal his sentence."); Luna, 1999 WL 76742, at *5 ("[Petitioner] argues that he received ineffective assistance because his attorney failed to make certain arguments regarding offense-level enhancements and reductions, instead of claiming directly that the sentencing court improperly calculated his base offense level. Because allowing consideration of this petition would allow the petitioner to circumvent his waiver — an integral part of his plea agreement with the Government — this Court cannot and will not reach the merits of [petitioner's] claims.").
IV. CONCLUSION
For the foregoing reasons, Nunez's section 2255 motion is dismissed. The remaining question is whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." "A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Petitioner has made no such showing in this case. Accordingly, I decline to issue a certificate of appealability. The Clerk of the Court is directed to close this case.
Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citation omitted)).
SO ORDERED.