Opinion
22-CV-2553 (LAP) 16-CR-0609-1 (LAP)
04-01-2022
ANDRE MAYARD, Movant, v. UNITED STATES OF AMERICA, Respondent.
ORDER
LORETTA A. PRESKA, United States District Judge.
Movant Andre Mayard (“Mayard”), currently incarcerated at FCI Ray Brook in Ray Brook, New York, filed a letter requesting leave to submit an untimely motion under 28 U.S.C. § 2255, challenging the legality of his sentence entered in United States v. Mayard, ECF 1:16-CR-0609-1, 44 (S.D.N.Y. Nov. 28, 2018) (amended judgment filed July 24, 2020). Mayard asserts in his letter that trial counsel provided ineffective assistance of counsel during plea negotiations. (ECF 1, at 1.) Mayard acknowledges that any motion he eventually files challenging his conviction would be untimely, but he seeks additional time to do so, generally referring to the pandemic as a reason why the Court should toll the statute of limitation period.
As set forth below, the Court construes Mayard's letter as a § 2255 motion, grants Mayard 60 days to file an amended § 2255 motion, and directs him to state facts demonstrating that the doctrine of equitable tolling should apply in this case.
STANDARD OF REVIEW
A prisoner in federal custody may bring a motion under 28 U.S.C. § 2255 attacking his conviction or sentence on the grounds that it violates the Constitution or United States law, was imposed without jurisdiction, exceeds the maximum penalty, or is otherwise subject to collateral attack. 28 U.S.C. § 2255. Under Rule 4(b) of the Rules Governing § 2255 Proceedings, the Court has the authority to review and deny a § 2255 motion before directing an answer “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” Rules Governing § 2255 Proceedings, Rule 4(b); see Acosta v. Nunez, 221 F.3d 117, 123 (2d Cir. 2000). The Court is obliged, however, to construe pro se pleadings liberally and interpret them “to raise the strongest arguments they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original); see Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). Nevertheless, a pro se litigant is not exempt “from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (citing Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
BACKGROUND
Mayard seeks to challenge his November 28, 2018 judgment of conviction, in which he pleaded guilty to (1) one count of conspiracy to distribute and possess with the intent to distribute crack and (2) one count of conspiracy to distribute and possess with the intent to distribute crack and marijuana. See Mayard, ECF 1:16-CR-0609, 44. The Court sentenced Mayard to 240 months on count one and 60 months on count two, to be served consecutively, for an aggregate term of 300 months' incarceration. Movant appealed his conviction, and on July 17, 2020, the Court of Appeals for the Second Circuit dismissed the appeal. United States v. Mayard, No. 18-3607 (2d Cir. July 17, 2020) (order granting appellate counsel's Anders motion and the government's motion to dismiss Mayard's appeal of his conviction and sentence).
On March 28, 2022, the Court received a letter from Mayard, dated March 3, 2022, in which Mayard asks this Court to toll the statute of limitations because he “believe[s] [he] really received the ineffective assistance of counsel . . . [based on his] lawyer trick[ing] [him] and [manipulat[ing] [him] into accepting a plea deal that was not beneficial to [him].” (ECF 1, at 1.) He argues that trial counsel “informed [him] that the enhancement for the murder would not increase my sentence . . . [and that he] could expect to receive a sentence of ten to fifteen years.” (Id.) He claims that trial counsel “promised [him] and guarantee[d] this, ” but, Mayard argues, because he received 25 years' incarceration, he “was prejudiced.” (Id.)
In support of his argument in favor of equitable tolling, Mayard asserts that “[t]he pandemic has disrupted everything in prison since March 2020[ ] [and] [i]t still has not returned to normal.” (Id.) Acknowledging that his motion would be untimely, Mayard “was wondering if [he] could use the pandemic and the cruel and unusual conditions inside the prison that it caused to get some additional time to file a meritorious 2255.” (Id.) Finally, Mayard indicates that he would file his motion “immediately.” (Id. at 2.)
The Court directed the Clerk of Court to open the letter as a new civil action brought under § 2255.
DISCUSSION
A. The Court construes Mayard's letter as a motion brought under § 2255
District courts generally are without jurisdiction to consider the timeliness of a motion until a motion “is actually filed.” Green, 260 F.3d at 82. “Where a motion, nominally seeking an extension of time, contains allegations sufficient to support a claim . . ., a district court is empowered, and in some instances may be required, under Haines [v. Kerner, 404 U.S. 519 (1972)] to treat that motion as a substantive motion for relief.” Green, 260 F.3d at 82. Here, the Court concludes that Mayard's letter, seeking additional time to file his § 2255 motion, can be construed as a substantive motion under § 2255 because he raises an ineffective assistance of counsel claim and states facts in support of this claim.
B. The Court grants Mayard leave to file an amended motion
Under Rule 2 of the Rules Governing Section 2255 Proceedings, a § 2255 motion
must (1) specify all the grounds for relief available to the moving party; (2) state the facts supporting each ground; (3) state the relief requested; (4) be printed, typewritten, or legibly handwritten; and (5) be signed under penalty of perjury by the movant or by a person authorized to sign it for the movant.
A motion must permit the Court and the respondent to comprehend both the movant's grounds for relief and the underlying facts and legal theory supporting each ground so that the issues presented in the petition may be adjudicated.
Mayard's letter does not conform to the requirements of Rule 2 because it is unclear whether he raises all his grounds in the letter. He also does not sign the letter under the penalty of perjury. Moreover, as Mayard has indicated, he intends to file a motion following a ruling on his request for more time to submit his motion. The Court therefore grants Mayard 60 days from the date of his order to file an amended motion that complies with Rule 2.
C. Timeliness
Mayard is correct that the time to file his motion has expired. On July 17, 2020, the United States Court of Appeals for the Second Circuit entered judgment granting the Government's motion to dismiss. Under revised Supreme Court rules, extending the time to file a petition for a writ of certiorari from 90 days to 150 days, Mayard had until December 14, 2020, to seek review in the Supreme Court. His time to file a § 2255 motion therefore expired one year later, on December 14, 2021. The Court received Mayard's letter, construed as a § 2255 motion, on March 28, 2022. Even if the Court accepted the date on the letter, March 3, 2022, as the filing date pursuant to Rule 3 of the Rules Governing Section 2255 Proceedings, his motion is still untimely.
“[I]n any case in which the relevant lower court judgment, order denying discretionary review, or order denying a timely petition for rehearing was issued prior to July 19, 2021, the deadline to file a petition for a writ of certiorari remains extended to 150 days from the date of that judgment or order.” https://www.supremecourt.gov/orders/courtorders/071921zr4g15.pdf.
The time to file a writ of certiorari starts on the date the judgement is entered by the court of appeals, not the date the court of appeals issues its mandate. See Sup. Ct. R. 13.3 (“The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice).”
Rule 3(d) of the Rules Governing Section 2255 Proceedings states that “[a] paper filed by an inmate confined in an institution is timely if deposited in the institution's internal mailing system on or before the last day for filing.”
D. Equitable tolling
Because it is unclear at this stage whether equitable tolling should apply in this case, the Court directs Mayard to state facts in his amended motion, showing why the Court should toll the limitation period.
“[E]quitable tolling pauses the running of. . . a statute of limitations when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action.” Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014). It “applies only in rare and exceptional circumstances.” Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000) (cleaned up). A litigant must show “a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the [movant], acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances.” Id. at 134.
“While the effects of the COVID-19 pandemic could conceivably present extraordinary circumstances, ‘[a] [movant] cannot meet his burden of establishing that a court should apply the doctrine of equitable tolling simply by making a passing reference to the pandemic or the resulting lockdown.” Hines v. United States, No. 17-CR-364-2 (CS), 2021 WL 2456679, at *2 (S.D.N.Y. June 16, 2021) (quoting United States v. Aigbekaen, No. 15-CV-462, 2021 WL 1816967, at *1 (D. Md. May 6, 2021)).
Here, Mayard's request that the Court toll the limitation period because of the pandemic is insufficient to meet the equitable tolling standard. He instead must state facts showing that he pursued his rights diligently but that extraordinary circumstances specific to him prevented him from timely submitting his motion. Put simply, Mayard cannot rely solely on the fact that the pandemic generally presented extraordinary circumstances, but rather that, in his circumstances, the pandemic specifically presented circumstances that prevented him from timely filing his motion.
CONCLUSION
The Court grants Mayard 60 days' leave to file an amended motion under 28 U.S.C. § 2255 containing the information specified above. The amended motion must be submitted to this Court's Pro Se Office, be captioned as an “Amended Motion” and bear the same docket number as this order. An Amended Motion Under 28 U.S.C. § 2255 form is attached to this order, which Movant should complete as specified above. Once submitted, the amended motion will be reviewed for substantive sufficiency, and then, if proper, the Court will direct the Government to file an answer. If Mayard fails to comply with this order within the time allowed, and cannot show good cause to excuse such failure, the motion will be denied.
Because Movant has not at this time made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
LORETTA A. PRESKA United States District Judge.
Motion to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody
(Motion Under 28 U.S.C. § 2255)
Instructions
1. To use this form, you must be a person who is serving a sentence under a judgment against you in a federal court. You are asking for relief from the conviction or the sentence. This form is your motion for relief.
2. You must file the form in the United States district court that entered the judgment that you are challenging. If you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file the motion in the federal court that entered that judgment.
3. Make sure the form is typed or neatly written.
4. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
5. Answer all the questions. You do not need to cite law. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a brief or arguments, you must submit them in a separate memorandum.
6. If you cannot pay for the costs of this motion (such as costs for an attorney or transcripts), you may ask to proceed in forma pauperis (as a poor person). To do that, you must fill out the last page of this form. Also, you must submit a certificate signed by an officer at the institution where you are confined showing the amount of money that the institution is holding for you.
7. In this motion, you may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different judge or division (either in the same district or in a different district), you must file a separate motion.
8. When you have completed the form, send the original to the Clerk of the United States District Court at this address:
Daniel Patrick Moynihan U.S. Courthouse 500 Pearl Street New York, NY 10007
9. CAUTION: You must include in this motion all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this motion, you may be barred from presenting additional grounds at a later date.
10. CAPITAL CASES: If you are under a sentence of death, you are entitled to the assistance of counsel and should request the appointment of counsel.