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United States District Court, S.D. New YorkJul 13, 2007
03 Civ. 5346 (KMW), 97 Cr. 355 (KMW). (S.D.N.Y. Jul. 13, 2007)

03 Civ. 5346 (KMW), 97 Cr. 355 (KMW).

July 13, 2007


Mery Valencia, an inmate of the Federal Correctional Institution in Tallahassee, Florida, brings this petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct her prison sentence. She also moves for leave to conduct discovery. In a report and recommendation to the Court (the "Report"), Magistrate Judge Ronald L. Ellis recommended that both the petition and the discovery motion be denied, recommendations to which Petitioner objects. For the reasons stated below, the Court agrees with the Report, and the petition and discovery motion are denied.


A jury of this Court convicted Petitioner of two counts of cocaine distribution and possession, and one count of conspiracy to distribute and possess cocaine, on July 30, 1999. She was sentenced to life imprisonment on December 16, 1999. The Second Circuit affirmed Petitioner's conviction on September 19, 2000,see United States v. Valencia, 229 F.3d 1136 (2d Cir. 2000) (summary order), and she did not seek Supreme Court review.

On June 10, 2003, Petitioner moved for dismissal of the Indictment and release from custody, purportedly pursuant to Federal Rule of Criminal Procedure 52(b), alleging that she was convicted of conduct not charged in the Indictment. Then-Chief Judge Mukasey held that Petitioner's request to proceed under Rule 52(b) was misplaced, and he directed Petitioner to decide whether she wished to pursue relief on the proper jurisdictional basis, 28 U.S.C. § 2255. Petitioner filed a Section 2255 petition on September 17, 2003, elaborating on her claim of a defective Indictment, and adding a new claim that her lawyer failed to inform her about a plea agreement offer from the Government. On April 28, 2004, Petitioner moved to stay the proceedings to conduct discovery. She filed a proposed supplement to her habeas corpus petition on August 25, 2004, arguing that her sentence was unconstitutional under the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004).

In his Report, dated May 18, 2006, Magistrate Judge Ellis recommended that the petition and the motion for discovery be denied in full. Petitioner objects.

DISCUSSION I. Standard of Review

The Court reviews Petitioner's claims de novo, because Petitioner has filed specific, written objections to the Report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

II. Petitioner Has Not Shown Good Cause for Her Discovery Request

By motion dated April 28, 2004, Petitioner requested a stay of proceedings and leave to conduct discovery on two issues: (1) whether she was properly named in the Indictment and (2) whether her lawyer failed to inform her of the possibility of a plea agreement with the Government. Petitioner may not conduct discovery unless there is good cause for the Court to grant leave to do so. Rule 6(a), Rules Governing Section 2255 Proceedings for the United States District Courts. Discovery need not be ordered unless Petitioner's allegations establish a prima facie case for relief. United States v. Franzese, 525 F.2d 27, 32 n. 8 (2d Cir. 1975). Because Petitioner has not met this threshold, her motion is denied.

Petitioner has not shown good cause for her request for copies of all Indictments filed in her case, along with documents related to her extradition from Brazil, to support her claim that she was tried on charges not contained in the Indictment. The Government has submitted copies of (1) the Fifteenth Superseding Indictment, in which Petitioner is charged in Counts One through Five, and (2) the redacted version submitted to the jury, in which Petitioner is charged in Counts One through Three. (Gov't's Mem. of Law in Opp'n, Exs. A-B.) Petitioner acknowledges that she was convicted on the three counts in the redacted version of the Indictment. (Petr.'s 28 U.S.C. § 2255(3) Motion to Vacate, Set Aside, or Correct Sentence, or in the Alternative to Be Construed as a Supplement to Petr.'s 28 U.S.C. § 2255 in the Above 6-7.) Her claim that she was convicted of charges not contained in the Indictment is therefore meritless, and she is not entitled to pursue discovery to support it.

Counts Three and Five of the Fifteenth Superseding Indictment were dismissed on the Government's motion before the case was submitted to the jury. In the redacted version of the Indictment, Count Four was renumbered as Count Three. (Gov't's Mem. of Law in Opp'n 2 n. 2.)

The Court also denies Petitioner's request for discovery of any evidence of conversations between her lawyer and the Government related to the possibility of a plea agreement. Although Petitioner alleges that her lawyer failed to inform her about a plea agreement offer from the Government, she provides neither evidence of such an offer nor any details about when and how it was made. By contrast, both Petitioner's lawyer and the Assistant U.S. Attorneys who prosecuted Petitioner have submitted affidavits stating that the Government never offered Petitioner a plea agreement. (Gov't's Mem. of Law in Opp'n, Exs. C-E.) As Magistrate Judge Ellis concluded, a conclusory allegation of this nature, without any support, does not constitute a prima facie case for relief, and therefore, no good cause exists for the Court to grant Petitioner's discovery motion. The motion is denied.

III. The Habeas Corpus Petition Is Untimely A. The Statute of Limitations Bars Consideration of Petitioner's Claims

As Magistrate Judge Ellis correctly held, the Court may not consider Petitioner's claims because they are barred by the one-year statute of limitations of 28 U.S.C. § 2255. Section 2255 bars the Court from considering petitions filed more than one year after 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. The petition is not timely by any of these standards.

(1) Final Judgment of Conviction. For purposes of Section 2255's statute of limitations, a judgment of conviction becomes final when the time expires for filing a petition for a writ of certiorari, Clay v. United States, 537 U.S. 522, 525 (2003), which is 90 days after the entry of judgment by the appeals court, Sup. Ct. R. 13(1). Petitioner's conviction was upheld by the Second Circuit on September 19, 2000. See United States v. Valencia, 229 F.3d 1136 (2d Cir. 2000) (summary order). The judgment of conviction therefore became final on December 18, 2000.

(2) Impediment Created by Governmental Action. Petitioner does not allege that she was prevented from filing her petition by any governmental action, illegal or otherwise.

(3) Date on which Right Was Recognized. Petitioner claims that the statute of limitations should be extended to the date of the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), which expanded defendants' right to have juries rather than judges determine facts related to sentencing. The principles articulated in Blakely were applied to the Federal Sentencing Guidelines in United States v. Booker, 543 U.S. 220 (2005). However, as Magistrate Judge Ellis noted, Petitioner cannot state a claim based on these decisions, because neither Blakely norBooker has been applied retroactively to cases on collateral review. See Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005); Green v. United States, 397 F.3d 101, 103 (2d Cir. 2005).

These decisions belie Petitioner's conclusory assertion that Magistrate Judge Ellis erred in finding that Booker does not apply retroactively. (Petr.'s Objections to Report Recommendation 7-8.)

Petitioner argues that her Booker claim is timely because her conviction was not yet final when the Supreme Court decidedApprendi v. New Jersey, 530 U.S. 466 (2000), and because she sought to raise an Apprendi claim on direct appeal. This contention does not alter the deadline for the Section 2255 petition, because Booker is not "merely the application of the Supreme Court's ruling in Apprendi," as Petitioner claims. (Petr.'s Objections to Report Recommendation 5.) In holding that Booker announced a new rule of constitutional law, the Second Circuit stated that "the result in Booker was not dictated by Apprendi or, for that matter, the Court's later decision inBlakely v. Washington." Guzman, 404 F.3d at 142. The petition is therefore not made timely by application of Subsection 3.

By memo endorsement dated September 11, 2000, the appellate court denied Petitioner's motion to supplement her argument and brief to raise an Apprendi claim.

(4) Date on which — Facts Could Have Been Discovered. As explained above, although Petitioner asserts that her lawyer never told her about an offer of a plea agreement by the Government, she provides no factual support for this assertion. She offers nothing that contradicts the affidavits submitted by the Government and her lawyer. Because Petitioner has not alleged any newly discovered "facts supporting the claim or claims presented," 28 U.S.C. § 2255(4), Subsection 4 provides no basis for extending the statute of limitations.

Because Subsections 2, 3, and 4 do not apply, the statute of limitations runs from December 18, 2000, the date on which the judgment of conviction became final. Petitioner's Rule 52(b) motion — her earliest application for postconviction relief — was filed on June 10, 2003, more than one year after that date. The petition is therefore untimely.

B. Petitioner Is Not Entitled to Equitable Tolling

Petitioner's assertion that she could not communicate with her lawyer after her appeal was heard is not an exceptional circumstance that warrants equitable tolling.

As Magistrate Judge Ellis explained, equitable tolling of the one-year limitations period requires a showing that "extraordinary circumstances" prevented Petitioner from timely filing her petition and that she acted "with reasonable diligence" during the period she seeks to toll. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). An attorney's misconduct may constitute an extraordinary circumstance if it was "far enough outside the range of behavior that reasonably could be expected by a client that [it] may be considered `extraordinary.'" Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir. 2003).

Petitioner has not shown that her attorney's actions constitute "extraordinary" misconduct. Petitioner asserts that "Movant . . . paid her attorney the outrageous fee of $600,000.00 with the clear understanding that counsel would represent Movant through trial, appeal, and petition for writ of certiorari before the Supreme Court. Notwithstanding, counsel abandoned Movant after her direct appeal was denied." (Movant's Affirmation 1.) Petitioner does not claim that there was a nonfrivolous ground to petition for certiorari. By contrast, the attorney whose actions were held to have been extraordinary in Baldayaque was retained by the petitioner to file a habeas corpus petition and accepted a fee for that purpose, then failed to do so for more than a year.Baldavaque, 338 F.3d at 148-49. The alleged actions of Petitioner's lawyer are not similarly extraordinary.

Petitioner's assertion that her attorney refused to answer her letters and phone calls, preventing her from learning the outcome of her appeal for two years (Movant's Affirmation 2), provides no basis for equitable tolling. Petitioner did not show "reasonable diligence," because she does not explain why she did not try to learn about her appeal by any other means, such as writing to the clerk of court or contacting a different lawyer. See Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (holding that tolling is unwarranted "if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances").


For the reasons stated above, both the motion for discovery and the habeas corpus petition are DENIED. A certificate of appealability will not issue because Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c). The Clerk of Court is directed to close the civil case associated with this petition (03 Civ. 5346); any pending motions are moot.


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