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failing to find Spanish-speaker's lack of familiarity with the English language a circumstance that would warrant equitable tolling
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94 Cr. 300 (RCC) 00 Civ. 407 (RCC)
May 1, 2002
OPINION AND ORDER
Hector Aristis Almanzar Duran ("Duran"), pro se, brings this motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Duran was convicted after a jury trial before then-district judge Sonia Sotomayor of conspiracy to possess and distribute narcotics in violation of 21 U.S.C. § 841. Judge Sotomayor sentenced Duran to 168 months' imprisonment (14 years) and eight years' supervised release. Duran now seeks to vacate his sentence on the basis of ineffective assistance of trial counsel. Specifically, Duran claims that his attorney failed to advise him to accept a plea offer from the government which would have resulted in only three years' incarceration.
Duran also requests leave to amend his motion in order to include two new claims. First, Duran argues that his sentence is invalid under the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Second, Duran contends that the recent vacatur of his prior state narcotics conviction, which was used to increase his federal sentencing range, provides an additional basis for § 2255 relief.
The government argues in opposition that the instant motion is untimely pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), which requires that such applications be filed within one year of the date on which the defendant's conviction became final. It is undisputed that Duran filed this motion two years after the Second Circuit affirmed his conviction and approximately 20 months after the United States Supreme Court denied his petition for certiorari. Furthermore, the government argues that Duran's applications to amend are also time-barred.
I. BACKGROUND
On October 19, 1995, the government filed a superseding Indictment charging Duran, as well as two other defendants, with conspiracy to possess and distribute narcotics. Specifically, the government alleged that, on or about May 4, 1994, Duran participated in the purchase of cocaine from an undercover federal agent. Duran's case went to trial before Judge Sotomayor and the jury ultimately rendered a guilty verdict. Duran then moved for a new trial or a judgment of acquittal claiming, inter alia that he had received ineffective assistance from his trial attorney. Specifically, Duran argued, through new counsel, that his former attorney: (1) was unprepared; (2) failed to object at trial to certain evidence; (3) failed to request a hearing to suppress identifications based on photo arrays; and (4) conceded during cross-examination that Duran was involved in the charged activity. At a hearing on December 19, 1996, Judge Sotomayor rejected those claims. At the same time, however, Duran raised a new theory of ineffective assistance, namely, that trial counsel failed to permit him to testify in his own defense.
Judge Sotomayor scheduled another hearing for March 6, 1997, in order to address the new claim. Both Duran and his former counsel testified. Duran's trial attorney stated that he had advised Duran of his right to speak in his own defense but had recommended against it. See Transcript of March 6, 1997 Hearing ("Tr.") at 40-44. Counsel explained that he did not want the jury to compare Duran's voice on the stand to the government's audio recording of the drug transaction in question. See id. at 43-44. According to defense counsel, such a comparison would have undercut Duran's trial defense based on misidentification. See id.
Duran also argued that trial counsel erred by: (1) failing to call an alibi witness; (2) failing to appear at a pre-sentencing hearing; and (3) failing to present at trial adequate positive background information about Duran.
Duran, on the other hand, maintained that counsel had failed to inform him of his right to testify. See id. at 14, 64. Duran also disclaimed any involvement in the May 1994 cocaine purchase. See id. at 27-28, 66-67. In addition, when questioned about his 1993 state conviction for attempted criminal possession of a controlled substance, Duran characterized the state narcotics charge as a "lie." Id. at 20.
At the conclusion of the hearing, Judge Sotomayor rejected Duran's claims and denied the motion for a new trial. Tr. at 72-76. Approximately two weeks thereafter, Judge Sotomayor sentenced Duran to 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 pursuant to the United States Sentencing Guidelines ("U.S.S.G."). The offense level included an upward adjustment for obstruction of justice pursuant to U.S.S.G. § 3C1.1, based on the Court's determination that Duran repeatedly perjured himself at the March 6, 1997 hearing. in addition, Duran was placed in criminal history category II due to his 1993 state conviction, as well as the fact that he committed the federal crime while still on probation for the state offense.
Duran timely appealed, raising various ineffective assistance of counsel claims, and the Second Circuit affirmed the conviction. See United States of America v. Ganzales, 131 F.3d 132, 1997 WL 774407 (2d Cir. Dec. 17, 1997). Duran then sought a writ of certiorari from the United States Supreme Court, which was denied on April 20, 1998.
Duran filed the instant motion on December 13, 1999. Duran now offers an entirely new ineffective assistance argument, namely, that trial counsel rejected a plea offer from the government of three years' imprisonment without advising him whether the plea was in his best interest and without recommending that Duran accept the plea. Duran asserts that his attorney was motivated to try the case by the prospect of earning additional fees totalling $20,000. Petitioner's Memorandum of Law ("Pet. Mem.") at 7-8. Duran claims that he therefore did not make a conscious, informed decision to proceed to trial. Id.
The government disputes that such an offer was made. See Government Letter in Opposition dated June 30, 2000 ("6/30/00 Gov't Let.") at 6.
While the motion based on ineffective assistance of counsel was sub judice, Duran filed two separate applications to amend his petition. The first application was filed after the United States Supreme Court rendered its decision in Apprendi. Duran contends that, under the doctrine announced in Apprendi, his conviction violates the Fifth and Sixth Amendments because the quantity of narcotics involved in the offense was not charged in the indictment or submitted to the jury, but rather was determined by Judge Sotomayor in connection with sentencing. Duran also argues that his conviction for conspiring to distribute narcotics is invalid because the undercover federal agent used sham cocaine.
Duran's second application, filed on January 3, 2002, is based on the recent vacatur of his 1993 state narcotics conviction. On or about November 27, 2001, the District Attorney's Office requested that the state court vacate Duran's conviction because the officers who arrested Duran had since been prosecuted for committing perjury and other illegal acts. See Affirmation of Assistant District Attorney Nancy Greenberg dated November 27, 2001 ("Greenberg Aff."), at ¶ 3. The motion was granted by order dated December 12, 2001. Duran claims that the now-vacated conviction prejudiced the federal proceedings in various ways and provided an invalid basis for enhancing his sentence.
ADA Greenberg submitted the affirmation in response to Duran's motion to vacate his state conviction pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10. See id. ¶ 2.
II. DISCUSSION
A. The Ineffective Assistance of Counsel Claim
This Court is precluded from addressing the merits of Duran's ineffective assistance claim because his petition is untimely under the one-year statute of limitations imposed by the AEDPA. The limitations period 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.
Duran's conviction became final when the United States Supreme Court denied his petition for certiorari on April 20, 1998. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). However, Duran failed to bring the instant motion until approximately 20 months thereafter.
Duran's motion was dated December 13, 1999, and was filed in this Court on January 20, 2000.
Duran concedes that his motion was not filed within the mandated one-year period, see Pet. Mem. at 3 n. 1, but suggests that a government-created impediment prevented his compliance with that rule. Duran argues that prison officials at the Fort Dix Federal Correctional Institution ("Fort Dix") failed to provide library facilities and legal assistants for the Spanish-speaking prisoners and failed to inform those inmates about the AEDPA and its effect upon their rights. Id. at 5-6. Duran contends that these deficiencies are unreasonable because the majority of the inmate population at Fort Dix is Spanish-speaking. Id. at 5; see also Petitioner's Reply Memorandum ("Pet. Rep.") at 3. Moreover, Duran specifically takes issue with the absence of a Spanish translation of the AEDPA because, according to Duran, the Bureau of Prisons ("BOP") regularly publishes its programs statements, institution supplements and notices in both English and Spanish. See Pet. Rep. at 2-3; Exs. A-C. Duran argues that the circumstances outlined above constitute an "impediment" under the AEDPA or alternatively provide grounds for equitable tolling of the statute of limitations.
Duran also argues that the Warden "took no reasonable steps to explain that there would be a one-year grace period for inmates who had not filed their first § 2255 motions by the date of the enactment of the [AEDPA]." Id. at 5. However, the grace period applies only to those prisoners whose convictions became final before the effective date of the AEDPA — April 24, 1996. See Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998). Duran is not entitled to the grace period because his conviction became final in 1998, well after the effective date.
According to Duran, he did not learn of the AEDPA limitations period until he was informed by another inmate on December 10, 1999. Pet. Mem. at 6.
1. Impediments Under the AEDPA
Duran first argues that the prison law library is deficient in Spanish-language legal assistants and materials. Duran therefore contends that Fort Dix unconstitutionally impeded his access to the courts. See Bounds v. Smith, 430 U.S. 817, 828 (1977) (recognizing the fundamental right of access to the courts which requires prison officials to "provid[e] prisoners with adequate law libraries or adequate assistance from persons trained in the law"). However, the Supreme Court's decision in Bounds did not create "an abstract, free standing right to a law library or legal assistance." Lewis v. Casey, 518 U.S. 343, 351 (1996). Rather, a petitioner must demonstrate that the alleged shortcomings caused him actual harm. Id. at 355.
Here, Duran's petition contains only generalized statements regarding insufficiencies at the prison and gives no indication whether Duran himself ever attempted to discover the applicable statute of limitations or to obtain assistance from the prison staff. Moreover, according to an affidavit submitted by Suzanne Brown, the Supervisor of Education at Fort Dix, which is unchallenged by Duran, the prison does provide legal assistance for Spanish-speaking inmates. Ms. Brown states that the Fort Dix Education Department staff "actively recruit and hire Spanish-speaking inmates to work as law clerks" and that the "law library at FCI Fort Dix has a practice of scheduling at least one Spanish-speaking inmate law clerk to work on each shift." Affirmation of Suzanne Brown dated June 23, 2000 ("Brown. Aff."), at ¶¶ 3, 5. Thus there is no basis to conclude that Duran suffered from an impediment which prevented him from filing his petition in a timely manner.
Although Duran apparently took no action to ascertain the statute of limitations for himself, he argues that prison officials should have provided a Spanish language copy of the AEDPA to the inmates or should have otherwise informed them about the statute. Pet. Mem. at 5. However, the government is not required to instruct each inmate, whether English or Spanish speaking, about habeas procedure. See Velasquez v. United States, 4 F. Supp.2d 331, 334 (S.D.N.Y. 1998) (holding that the BOP's failure to inform inmates about the AEDPA was not an impediment because "petitioner has no entitlement to personal notice from the Government");see also Martinez v. United States, No. 00 Civ. 1214, 2000 WL 863121, at 1-2 (S.D.N.Y. June 28, 2000) (holding that the Warden's alleged failure to explain the AEDPA to Spanish-speaking prisoners was not action in violation of the Constitution or federal law). Nor is Fort Dix required to provide information about the AEDPA in Spanish simply because it publishes program statements, institution supplements and other notices in both English and Spanish. Based on the record before the Court, there is no indication that prison officials affirmatively misled the Spanish-speaking inmates or sought to conceal the existence of the AEDPA from them. Therefore, the allegations in the petition do not demonstrate any governmental action in violation of the Constitution or federal law that prevented Duran from filing his § 2255 motion in a timely manner.
2. Equitable Tolling
Nor are Duran's circumstances sufficiently compelling so as to justify' equitable tolling of the statute of limitations. Such relief is only appropriate in "extraordinary" or "rare and exceptional" circumstances that make it "impossible to file [the] petition on time." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam) (citing Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999)). This is simply not a case where the petitioner has suffered such extraordinary handicaps so as to require equitable tolling.
Although Duran's lack of familiarity with the English language undoubtedly makes his pursuit of collateral relief more difficult, most inmates — indeed, according to Duran, the majority of the inmates at Fort Dix — could make the same claim. Courts routinely decline to toll the statute of limitations on that basis. See Fennell v. Artuz, 4 F. Supp.2d 374, 377 (S.D.N.Y. 1998) (holding that equitable tolling based on excuses common among prisoners, such as lack of education and lack of familiarity with legal research, would undermine the AEDPA statute of limitations); Martinez v. Kuhlmann, 99 Civ. 1094, 2000 WL 622626, at 3 (S.D.N Y May 15. 2000) (noting that "to permit equitable tolling in all cases involving such problems would frustrate the statute's objectives, because many inmates could make the same claims");Armand v. Strack, No. 98 Civ. 6650, 1999 WL 167720, at 5 (E.D.N.Y. Feb. 19, 1999) (stating that lack of access to law clerks, illiteracy, lack of English fluency and ignorance of the law have all been considered and rejected by courts as insufficient to demonstrate exceptional circumstances).
For the same reason, equitable tolling is not appropriate on the grounds that the Warden failed to inform the Spanish-speaking prisoners about the AEDPA or to provide a translation thereof. As discussed above, inmates can have no reasonable expectation that prison officials will inform them personally of developments in the law or disseminate copies of the relevant statutes. See Velasquez, 4 F. Supp. 2d at 334; see also James v. Barkley, 98 Civ. 4383, 1998 WL 729740, at 1 (S.D.N.Y. Oct. 16, 1998) (holding that ignorance of the AEDPA is not a sufficient excuse so as to toll the statute of limitations).
Finally, there is also no indication here of what efforts, if any, Duran put forth to ascertain the statute of limitations on his own behalf. Equitable tolling is only appropriate where the petitioner has acted with reasonable diligence throughout the period he seeks to toll.Smith, 208 F.3d at 17. The petition simply does not suffice to justify equitable tolling under the circumstances at issue here. Therefore, Duran's ineffective assistance claim must be dismissed as time barred.
B. The Motions to Amend
The government argues that Duran's two motions to amend are also untimely because they were filed more than one year after his conviction became final. Moreover, because the claims asserted in the motions are separate and distinct from Duran's ineffective assistance of counsel theory, the government contends that they do not "relate back" to the initial petition pursuant to Fed.R.Civ.P. 15(c). See Government Letter in Opposition dated February 22, 2002 ("2/22/02 Gov't Let."), at 12. The government therefore concludes that Duran would have to assert those unrelated claims in a second or successive petition pursuant to 28 U.S.C. § 2244(b). See id.
The AEDPA imposes stringent requirements on second or successive § 2255 petitions. See 28 U.S.C. § 2244(b) 2255. Applicants must obtain prior certification from the appropriate court of appeals and must demonstrate:
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2255.
This argument appears based on a misunderstanding of the "relation back" doctrine. Provided that certain conditions are met, the relation back doctrine allows a petitioner to avail himself of the filing date of his original § 2255 motion for subsequent amendments which would otherwise be untimely. See Fed.R.Civ.P. 15(c). The relation back doctrine therefore is relevant only for statute of limitations purposes; it does not require that all proposed amendments be related to the claims raised in the underlying petition. Duran here does not seek to take advantage of the relation back doctrine in order to save time-barred amendments; rather, as discussed infra, he contends that his new claims are independently timely under the AEDPA because they are based on a new rule of law and newly discovered facts, respectively.
There is therefore no basis here for construing Duran's motions to amend as second or successive petitions. Courts have recognized that, if an initial habeas petition is still pending, a motion to amend — whether related or unrelated to the original claim — should not be viewed as a successive petition. See Johnson v. United States, 196 F.3d 802, 805 (7th Cir. 1999) (holding that, while an initial § 2255 motion is pending, a district court must consider the amendments under the Federal Rules of Civil and Criminal Procedure without regard to §§ 2244(b) and 2255); Newton v. Coombe, No. 95 Civ. 9437, 2001 WL 799846, at 8 (S.D.N Y July 13, 2001) ("Since [the initial habeas] petition has not yet been decided, the motion to amend is not literally a second petition, and so need not navigate the shoals of § 2244(b)."); Letizia v. Walker, No. 97-CV-0333E(F), 1998 WL 567840, at 1 (W.D.N.Y. Aug. 27, 1998) ("While it is correct that there is no absolute right to amendment, the Court does not find any authority for treating a motion to amend a petition, which has been filed prior to the disposition of such a petition on the merits, as a separate and second petition."). As the Seventh Circuit has explained:
[T]he AEDPA allows every prisoner one full opportunity to seek collateral review. Part of that opportunity — part of every civil case — is an entitlement to add or drop issues while the litigation proceeds.Johnson, 196 F.3d at 805.
Therefore, the Court will be guided by the Federal Rules of Civil Procedure, which provide that leave to amend should be freely given and should be denied only in limited circumstances, such as where the amendment is sought in bad faith, causes undue prejudice to the opposing party, or is futile. See Letizia v. Walker, 1998 WL 567840 at 1 (citingForman v. Davis, 371 U.S. 178, 182 (1962)). The Court will address petitioner's motions in turn.
1. The Apprendi Motion
A district court may reject a motion to amend as futile if the proposed amendment would be barred by the statute of limitations imposed by the AEDPA. See, e.g., King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 914 (7th Cir. 2000); see also Electronics Communications Corp. v. Toshiba Am. Consumer Prods., Inc., 129 F.3d 240, 246 (2d Cir. 1997) (holding that futility is grounds for denial of leave to amend). Duran acknowledges that he raised his Apprendi claims more than two years after his conviction became final, and that his motion is thus untimely pursuant to § 2255(1). However, Duran argues that, because Apprendi announced a new rule of law, the statute of limitations set forth in § 2255(3) applies. That provision allows the one-year limitations period to run from 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.
Duran cannot avail himself of § 2255(3) here. First, although the Second Circuit has not yet addressed the issue, other courts of appeals have held that Apprendi is not retroactively applicable to cases on collateral review. See, e.g., McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001); United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001); United States v. Sanders, 247 F.3d 139, 151 (4th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1237-38 (9th Cir. 2000). Moreover, it is not certain whether a lower court can deem a right retroactive for § 2255(3) purposes where the Supreme Court has not opined on the issue. See United States v. Hicks, 283 F.3d 380, 389 (D.C. Cir. 2002) ("[I]t is not even clear that § 2255(3) confers the power on a circuit court to make a right retroactive where the Supreme Court has not yet done so itself."); cf. Tyler v. Cain, 533 U.S. 656 (2001) (holding that, for purposes of second or successive motions under § 2255, a new rule is made retroactive to cases on collateral review only if the Supreme Court itself holds it to be retroactive).
In any event, Duran's motion to amend is premised on a misreading ofApprendi. Duran argues that his conviction violates the Fifth and Sixth Amendments because the quantity of narcotics involved in the offense was not charged in the Indictment or submitted to the jury, but rather was determined by Judge Sotomayor at sentencing. Duran also argues that he could not be sentenced for conspiring to distribute narcotics because the undercover federal agent used sham cocaine. However, Apprendi is inapplicable to the situation at issue here.
The Indictment charged Duran with conspiracy to distribute "one kilogram and more of mixtures and substances containing detectable amounts of cocaine." Indictment at 1. In order to determine the appropriate range under the sentencing guidelines, Judge Sotomayor found by a preponderance of the evidence that the offense involved four kilograms of cocaine.
The Supreme Court held in Apprendi that "[o]ther 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." 530 U.S. at 490. The Second Circuit has clarified that Apprendi does not apply to situations in which the quantity determination does not increase the defendant's sentence beyond the statutory maximum but affects only the guideline range within that limit. See United States v. White, 240 F.3d 127, 136 (2d Cir. 2001) (concluding that Apprendi had no application where "factual determinations were used to sentence the defendant to a sentence within the maximum allowed by statute . . . such determinations can be made by the court without violating the defendant's right to due process");United States v. Garcia, 240 F.3d 180, 184 (2d Cir.) (holding that the court would "join the other nine circuits that have rule on direct review that a guideline factor, unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum, may be determined by a sentencing judge and need not be submitted to a jury"), cert. denied, 121 S.Ct. 2615 (2001). Therefore, because Duran's sentence did not exceed the statutory maximum for cases involving an indeterminate amount of narcotics, see 21 U.S.C. § 841(b)(1)(C), Apprendi does not require a new sentencing.
Finally, Apprendi has no bearing on Duran's contention that his conviction must be vacated because the transaction with the federal agent did not involve real cocaine. Duran was convicted of the crime of conspiracy, which is complete upon the formation of an illegal agreement and does not require that the participants actually obtain the controlled substance. See United States v. Roman, 728 F.2d 846, 859 (7th Cir.) (upholding conspiracy conviction because "the key element is the intent to obtain [the narcotics] for further distribution and not whether [the defendant] actually obtained the actual substance"), cert. denied, 466 U.S. 977 (1984); United States v. Pietri, 683 F.2d 877 (5th Cir. 1982).
Therefore, because petitioner's Apprendi claims are both procedurally barred and substantively infirm, the motion to amend is denied as futile.
2. The Motion to Amend Based on Vacatur of the State Conviction
As with the Apprendi motion, Duran appears to concede that his proposed amendment regarding the vacatur of his prior state conviction is untimely under the limitations period set forth in § 2255(1). Instead, Duran invokes § 2255(4), which provides that the one-year limitations period may also run from "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence."
Because his state conviction was only recently vacated, Duran contends that he is entitled to avail himself of this provision. The government, on the other hand, argues that § 2255(4) is inapplicable here. The government points out that the grounds upon which the vacatur was premised — i.e., the conduct of the arresting officers — was known to Duran at the time of his federal trial. See 2/22/02 Gov't Let. at 13. The government therefore argues that the vacated conviction cannot itself constitute a new fact for purposes of § 2255(4).
Few courts have addressed this issue, and they have come to different conclusions. Compare Brackett v. United States, 270 F.3d 60, 68 (1st Cir. 2001) ("We hold that the operative date under § 2255(4) is not the date the state conviction was vacated, but rather the date on which the defendant learned, or with due diligence should have learned, the facts supporting his claim to vacate the state conviction.") with United States v. Hoskie, 144 F. Supp.2d 108, 110 (D. Conn. 2001) (holding that "the one-year statute of limitation starts to run on the date the state convictions are vacated, not an earlier date when the defendant discovered the facts forming the basis for the attack on the state convictions") and United States v. Cavallero, No. Crim. 95-59-P-H, 2000 WL 230225, at 1 (D. Me. Feb. 9, 2000) (same). Naturally, the government argues that this Court should follow the Brackett decision and dismiss Duran's motion to amend as time-barred.
The difficulty with the government's argument is that, given controlling Supreme Court precedent, Duran was effectively precluded from bringing his claim until this time. In Custis v. United States, 511 U.S. 485 (1994), the Supreme Court prohibited defendants from attacking the validity of prior state convictions during federal sentencing proceedings, except with respect to claims based on deprivation of the right to counsel. Subsequently, in Daniels v. United States, 532 U.S. 374 (2001), the Court held that defendants could not bring such attacks in a § 2255 petition without first exhausting their remedies in state court. Indeed, the First Circuit acknowledged inBrackett that "the net result of Custis and Daniels was to leave federal prisoners in a practical bind. They could not bring a § 2255 petition to federal court until they had gotten the state convictions vacated and they had only one year in which to accomplish that from the date of the federal conviction — a daunting task." 270 F.3d at 67.
The First Circuit conceded that its reading of § 2255(4) could lead to unjust results, and suggested that there may be mechanisms, both before and after sentence, to act as "safety valves." Id. at 70. For example, the First Circuit noted that where state proceedings are initiated before a federal sentence is imposed, a court could continue the sentencing hearing for a "reasonable period" to permit the conclusion of state proceedings. Id. at 70-71. Alternatively, the First Circuit noted that petitioners could argue for a rule of equitable tolling. Id. at 71.
The First Circuit gave no indication of what amount of time would be "reasonable."
Even assuming that the First Circuit's narrow reading of § 2255(4) is correct, this Court nonetheless will address the merits of Duran's claims because the instant circumstances present a compelling case for equitable tolling. Duran followed the procedure mandated by Supreme Court precedent and sought to vacate his conviction in state court before presenting his arguments in a federal forum. Within a matter of weeks after vacatur, Duran moved to amend his still-pending § 2255 petition. To characterize his motion to amend as untimely in these circumstances would be unfair, and would essentially render void the Second Circuit's pronouncement that "defendants who successfully attack state convictions may seek review of federal sentences that were enhanced on account of such state convictions." United State v. Doe, 239 F.3d 473, 475 (2d Cir. 2001). Therefore, this Court will grant the motion to amend and will assess Duran's claims on the merits.
Indeed, it appears that Duran was not yet aware that the state court actually had granted the motion to vacate, although he anticipated that such a decision would be forthcoming. See Petitioner's Motion to Amend dated December 26, 2001, at 5 n. 1 ("The factual concession depicted in [the Greenberg Affirmation] indisputably establish [sic] that the prior conviction is constitutionally infirm, and will most likely be vacated soon after, if not before, actual submission of this pleading.").
III. CONCLUSION
For the foregoing reasons, Duran's motion to vacate his sentence based on ineffective assistance of counsel and his request to amend his petition in order to include claims under Apprendi are denied. However, his motion to amend the petition in order to include claims based on the vacatur of his prior state conviction is granted. The government is directed to file a response addressing the merits of Duran's claims within 30 days of the date of this Opinion and Order.