Opinion
00 Civ. 7112 (JSR)(AJP), (98 Cr. 1443).
December 20, 2000.
REPORT AND RECOMMENDATION
To the Honorable Jed S. Rakoff, United States District Judge:
Petitioner Angelo M. Rodriguez brings this petition, pursuant to 28 U.S.C. § 2255, from his August 13, 1999 conviction, upon his plea of guilty, to conspiracy to commit bribery and mail fraud, and income tax evasion. (Dkt. No. 1: Pet. ¶¶ 1-5; see also 98 Cr. 1443, Dkt. No. 49: Judgment.) Rodriguez was sentenced to 63 months imprisonment followed by 3 years of supervised release and ordered to pay $790,240 in restitution (at the rate of 15% of gross monthly income). (98 Cr. 1443, Dkt. No. 49: Judgment at 2-4.) Rodriguez did not appeal from the judgment of conviction. (See Pet. ¶ 5.)
Rodriguez's present § 2255 petition is dated September 13, 2000 and was received by the Court's pro se office on September 18, 2000. (Dkt. No. 1: Pet. at pp. 2, 7.) Rodriguez's petition challenges the restitution order on the ground that "the judge made no finding of [Rodriguez's] ability to pay." (Pet. ¶ 12(a).)
For the reasons set forth below, the Court should deny Rodriguez's § 2255 petition as untimely under the AEDPA's one-year statute of limitations.
ANALYSIS
The Antiterrorism and Effective Death Penalty Act ("AEDPA") requires a § 2255 petition to be brought within one year of when the judgment of conviction became final:
A 1-year period of limitation shall apply to a motion under this section [§ 2255]. The limitation period shall run from the latest of —
(1) the date on which the judgment of conviction became final. . . .
22 U.S.C. § 2255. Here, judgment was entered on August 17, 1999. Pursuant to the Federal Rules of Appellate Procedure, Rodriguez had ten business days to file a notice of appeal. Fed.R.App.P. 4(b)(1), 26(a). Rodriguez did not appeal. (Pet. ¶ 8.) Thus, his judgment became final ten business days after August 17, 1999, that is, on August 31, 1999. E.g., Martinez v. United States, 00 Civ. 1214, 2000 WL 863121 at *1 (S.D.N.Y. June 28, 2000).
The judgment is dated August 13, 1999 but the restitution money judgment was not entered on the docket until August 17, 1999. (See 98 Cr. 1443, Dkt. No. 49 entry before Dkt. No. 51.)
Because Rodriguez did not file his § 2255 petition until after August 31, 1999, it is untimely.
The Court, therefore, need not address the two other reasons advanced by the Government for rejecting Rodriguez's petition. (See Gov't 12/18/00 Letter Brief.)
CONCLUSION
For the reasons set forth above, the Court should deny Rodriguez's § 2255 petition as untimely under the AEDPA's one-year statute of limitations.FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).