Opinion
98 Cr. 561 (JFK)
April 4, 2002
Pascual Minaya, Federal Correctional Institute, Petersburg, Virginia, for Petitioner, Pro Se.
James B. Comey, United States Attorney for the Southern District of New York, New York, New York; Paul B. Radvany, Assistant United States Attorney, for Respondent.
OPINION AND ORDER
Before the Court is Petitioner Pascual Minaya's ("Minaya" or "Petitioner") pro se motion to correct his sentence pursuant to 28 U.S.C. § 2255 ("§ 2255"). This Court sentenced Petitioner to 87 months imprisonment and five years of supervised release for a violation of 21 U.S.C. § 846. For the reasons outlined below, Petitioner's motion is denied.
BACKGROUND
On April 9, 1999, Minaya pleaded guilty before this Court to one count of conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. § 846. Under the Sentencing Guidelines ("U.S.S.G."), Minaya's offense level was 29, with a criminal history category of I. The range of imprisonment was 87 to 108 months. On September 9, 1999, this Court sentenced Minaya at the lower end of this range to 87 months imprisonment to be followed by five years of supervised release. The judgment was entered on September 9, 1999. Minaya did not appeal his sentence.
Minaya submitted the present § 2255 motion to the Court on October 30, 2000. He bases his request for a downward departure in his sentence, pursuant to U.S.S.G. § 5K2.0 ("§ 5K2.0"), on an April 28, 1995 memorandum (the "1995 Memorandum") issued by then Attorney General Janet Reno in which she recommended that in exchange for criminal defendants' consent to deportation, United States Attorneys agree to a one or two level downward departure from the applicable guideline sentencing range.
Minaya further asserts that after his September 9, 1999, sentencing, he entered into a stipulation with the Immigration and Naturalization Service ("INS"), whereby he admitted to being an alien, consented to deportation, and waived all rights to an appeal in the matter. It is Minaya's contention that at the time of his sentencing, he could not request a downward departure based on the Attorney General's memorandum because he entered into the stipulation with the INS at a later date. He now requests that this Court reduce his offense level by one or two levels based on the 1995 Memorandum. See Def.'s. Letter at 2.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires that § 2255 motions filed after April 24, 1996 be filed within a year 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.
Because Minaya's claim was not impeded by governmental action or based on newly recognized rights or newly discovered facts, of the four dates above, the one applicable here is the date on which the judgment of conviction became final. The judgment becomes final on the date that the time to appeal expires. See Bryant v. United States, No. 99 Civ. 5736, 2000 U.S. Dist. LEXIS 17885, at *5 (S.D.N.Y. Dec. 11, 2000) (citingMartinez v. United States, No. 00 Civ. 1214, 2000 U.S. Dist. LEXIS 8794, at *3 (S.D.N.Y. June 28, 2000)). This Court sentenced Minaya and entered judgment on September 9, 1999. Because Minaya did not appeal his sentence, his judgment became final on September 19, 1999, the last day on which he could have sought an appeal. See Fed.R.App.P. 4(b)(1) (A)(i) (criminal defendant's notice of appeal must be filed within ten days after the judgment is entered). The one-year period of limitations imposed by the AEDPA expired on September 19, 2000. Minaya's petition, dated October 27, 2000, and received by the Court on October 30, 2000, falls outside the permissible time period and must be denied.
Even if Minaya's petition were timely, his request for a downward departure from his sentence based on his consent to deportation must be denied. Minaya bases his request for a reduction in his sentence on the 1995 Memorandum by then Attorney General Janet Reno in which she "authorized United States Attorneys to recommend downward departures for defendants who stipulated to deportation and waived their right to administrative hearings and judicial review." United States v. Galvez-Falconi, 174 F.3d 255, 259 (2d Cir. 1999) (citing the 1995 Memorandum). However, in a November 1997 memorandum to federal prosecutors, John C. Keeney, the Acting Assistant Attorney General for the Criminal Division of the Justice Department, announced that these downward departures no longer seemed appropriate due to changes in the immigration laws which greatly facilitated deportations. See United States v. Montez-Gaviria, 163 F.3d 697, 704 (2d Cir. 1998) (noting the memorandum's conclusion that the government derives little benefit from alien defendants' consent to deportation). Consequently, in July 1998, the United States Attorneys for the Southern and Eastern Districts of New York informed the Chief Judges of their Districts that they were "discontinuing the practice of supporting such departures on the ground that they no longer believed such departures to be warranted."Galvez-Falconi, 174 F.3d at 259; Choon v. United States, No. 92 Cr. 585, 1999 WL 435126, at *2 (S.D.N.Y. June 25, 1999). Therefore, Minaya's motion is denied because this policy of recommending departures in exchange for stipulating to deportation was not in effect in the Southern District at the time of his sentencing on September 9, 1999.
Further, regardless of the policy, Minaya's request for a downward departure on this basis must be denied. In Galvez-Falconi, the Second Circuit held that "a colorable, nonfrivolous defense" to deportation must be asserted by a defendant seeking a downward departure. Id. at 260. The mere act of consenting is not, by itself, very useful to the execution of justice. Id.; see also United States v. Clase-Espinal, 115 F.3d 1054, 1059 (1st Cir. 1997) ("[W]e hold, at least in the absence of a colorable, nonfrivolous defense to deportation, that the proffered ground for departure under U.S.S.G. § 5K2.0 does not constitute a mitigating circumstance of kind not adequately considered by the Commission.").
Minaya asserts no "colorable, nonfrivolous defense to deportation." His request for a downward departure in his sentence is based solely on his admission of alienage and consent to deportation. Pursuant to an April 30, 2001, Order of this Court, Minaya was given until May 25, 2001, to proffer such a defense or any other in support of his petition. He failed to do so. Without a nonfrivolous defense to deportation, this Court has no basis on which to grant a downward departure in Minaya's sentence under § 5K2.0 and cannot do so simply because Minaya consented to deportation.
CONCLUSION
For the reasons outlined above, Minaya's § 2255 motion is hereby denied. Because the Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). This case is closed and the Court directs the Clerk of the Court to remove this case from the court's active docket.
SO ORDERED.