Summary
recognizing that statute of limitations may be equitably tolled
Summary of this case from U.S. v. MenahemOpinion
Criminal Action No. 96-53-SLR, Civil Action No. 99-701-SLR
June 30, 2000
Carl Schnee United States Attorney;
Robert J. Prettyman, Assistant United States Attorney, Wilmington, Delaware for the UNITED STATES OF AMERICA.
MEMORANDUM OPINION
I. INTRODUCTION
Petitioner Mildred Aristy is an inmate at the Federal Correctional Institute in Danbury, Connecticut. (D.I. 98 at 2) Presently before the court is her motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 based on the government's alleged breach of a "cooperation agreement." (D.I. 98) Specifically, petitioner seeks to have her current sentence vacated and to be "resentenced with a downward departure for substantial assistance." (D.I. 98 at 10) Pursuant to a court order, the government has responded to petitioner's motion. (D.I. 102) For the reasons stated below, the court shall deny petitioner's motion.
II. BACKGROUND
On June 25, 1996, a federal grand jury handed down a fourcount indictment charging petitioner, inter alia, with conspiracy to distribute cocaine and cocaine base, a/k/a "crack" (count I), distribution of cocaine base, a/k/a "crack" (counts II and III), and distribution of cocaine (count IV). (D.I. 9) A first and second superseding indictment charging petitioner with the same offenses were handed down on July 23, 1996 and August 27, 1996, respectively. (D.I. 21, 48) On September 16, 1996, petitioner pled guilty to a single-count information pursuant to a memorandum of plea agreement. (D.I. 54, 56) The information charged petitioner with conspiracy to distribute cocaine and over 1.5 kilograms of cocaine base, a/k/a "crack." (D.I. 56)
On or about December 6, 1996, the government filed a substantial assistance motion pursuant to 28 U.S.C. § 994(n), 18 U.S.C. § 3553(e), and U.S.S.G. § 5K1.1, requesting the court to depart from the Sentencing Guidelines in connection with the sentencing of petitioner. (D.I. 68) On December 11, 1996, the court granted the government's motion and sentenced petitioner to 78 months of imprisonment to be followed by three (3) years of supervised release. (D.I. 70, 73) Petitioner filed a timely notice of appeal with the Court of Appeals for the Third Circuit on December 20, 1996. (D.I. 74)
This sentence was below the otherwise applicable ten-year mandatory minimum of 21 U.S.C. § 846 and 841(a)(1), (b)(1)(A) and below the otherwise applicable Sentencing Guidelines' range of 108 to 135 months imprisonment. (D.I. 73 at 6)
Petitioner alleges that subsequent to her sentencing she entered into a "cooperation agreement" with the government. (D.I. 98 at 6) According to petitioner, about the end of January 1997 her attorney approached her, informing her that the government required her assistance in the extradition of a coconspirator. (D.I. 98 at 7) Petitioner avers that her counsel represented that he had "an understanding" with the government whereby, if petitioner assisted in the extradition of a coconspirator, the government would file a motion pursuant to Fed.R.Crim.P. 35(b) requesting a reduction in her sentence. (D.I. 98 at 7) Petitioner alleges that based upon counsel's representation, she agreed to stipulate to the dismissal of her direct appeal, which dismissal was granted by the Third Circuit on March 14, 1997. (D.I. 98 at 7)
Although petitioner avers that the government breached "the explicit terms of the written cooperation agreement," she has not offered into evidence a copy of the alleged agreement nor proffered any evidence supporting the existence of a written agreement. (D.I. 98 at 19) To the extent petitioner contends that her "plea agreement contemplated that if [she] assisted the government in the extradition of [her coconspirator], the government would bring a motion pursuant to Federal Rule of Criminal Procedure 35(b) to reduce her sentence," petitioner's allegations are without merit as the plea agreement "contemplated" that the government would file a § 5K1.1 motion, not a Rule 35(b) motion. (D.I. 98 at 8; D.I. 56, ¶ 4)
The district court lacks jurisdiction to entertain a Rule 35(b) motion during the pendency of an appeal. See United States v. Davis, 924 F.2d 501, 504 (3d Cir. 1991).
On March 3, 1997, pursuant to the government's request, petitioner appeared before the United States Magistrate Judge for the District of Delaware and swore to an affidavit for the government to use in its extradition of her coconspirator. (D.I. 84, 85) Based upon her "substantial assistance in the prosecution of" her coconspirator, the government on June 25, 1997 filed a Rule 35(b) motion, requesting a reduction in petitioner's sentence. (D.I. 93) The motion stated in relevant part that
[t]he parties request that the Court . . . stay the hearing on this motion until the completion of the prosecution of [petitioner's coconspirator] or until the defendant requests that the motion be heard so that the Court can best assess the full extent and nature of the defendant's cooperation with the Government.
(D.I. 93 at 2-3)
III. DISCUSSION
A. Statute of Limitations
Before turning to the merits of petitioner's claims, the court must address the government's allegation that the petition is time barred under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Effective April 24, 1996, AEDPA amended § 2255 to impose a one-year statute of limitations on the filing of a § 2255 motion by a federal prisoner. See 28 U.S.C. § 2255; Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 619 n. 1 (3d Cir. 1998) (holding that the one-year limitations period set forth in § 2255 is a statute of limitations subject to equitable tolling, not a jurisdictional bar). The one-year limitations period begins to run from the latest of:
Since petitioner's sentence was imposed on December 11, 1996 and she filed her § 2255 motion in October 1999, AEDPA applies to petitioner without any retroactivity problem. See Lindh v. Murphy, 521 U.S. 320 (1997).
(1) the date on which the judgment 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.
In the instant action, petitioner's motion is governed by subsection four of § 2255. Applying this standard, the one-year statute of limitations began to run on December 11, 1997, the date on which the time for filing a Rule 35(b) motion expired. See Fed.R.Crim.P. 35(b) (requiring the government to file a motion for reduction within one year after the sentence is imposed if the defendant's substantial assistance involved information or evidence known to the defendant at the time of sentencing). Following this date, petitioner, through the exercise of due diligence, could have discovered the facts supporting the claim presented, i.e., the government's alleged failure to file a Rule 35(b) motion. Accordingly, given that petitioner's motion is dated October 18, 1999, it normally would be time barred under AEDPA.
As noted above, however, the Third Circuit has held that the one-year limitation of AEDPA functions as a statute of limitations and, thus, is subject to equitable tolling. See Miller, 145 F.3d at 617-18. "For the guidance of the district court," the Third Circuit noted in Miller that
equitable tolling is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Generally, this will occur when the petitioner has "in some extraordinary way. . . been prevented from asserting his or her rights." The petitioner must show that he or she "exercised reasonable diligence in investigating and bringing [the] claims." Mere excusable neglect is not sufficient.Id. at 618 (internal citations omitted). Although petitioner does not set forth any evidence that she exercised reasonable diligence in investigating and bringing her claim prior to the expiration of the limitations period, she contends that she did not previously file her motion because she was "`lulled' by her attorney . . . into believing that the Rule 35(b) motion would be forthcoming." (D.I. 98 at 10) There is no indication in the record that petitioner was aware at any time prior to filing the instant motion that the government, in fact, had filed a Rule 35(b) motion requesting her sentence be reduced.
The court need not decide whether the circumstances at bar warrant equitable tolling of petitioner's claims. As addressed below, petitioner has failed to demonstrate that the government breached the alleged cooperation agreement. Thus, regardless of whether her claim is subject to equitable tolling, her § 2255 motion should be denied without a hearing.
Although the government argues that petitioner waived this claim by not asserting it on direct appeal, the breach did not occur, if it occurred at all, until after the time for filing a direct appeal had expired.
Petitioner avers the government breached the alleged cooperation agreement by failing to file a Rule 35(b) motion requesting a reduction in her sentence. Rule 35(b) states in relevant part:
If the Government so moves within one year after the sentence is imposed, the court may reduce a sentence to reflect a defendant's subsequent substantial assistance in investigating or prosecuting another person. . . .
Fed.R.Crim.P. 35(b). The Advisory Committee notes to Rule 35 indicate that Rule 35(b), as amended in 1991, requires
the government to make its motion to reduce the sentence before one year has elapsed but does not require the court to rule on the motion within the one year limit. . . . Although no specific time limit is set on the court's ruling on the motion to reduce the sentence, the burden nonetheless rests on the government to request and justify a delay in the court's ruling.
This latitude, however, does not necessarily mean that the Rule 35(b) door remains open indefinitely. See. United States v. Hayes, 983 F.2d 78, 81 (7th Cir. 1992) (stating that, under post 1991 version of Rule 35(b), the court has a "reasonable amount of time" within which to decide timely filed motion).
Generally, federal prosecutors have considerable discretion over whether to move for a reduction in a defendant's sentence. Where the government has entered into a cooperation agreement (either oral or written) with a defendant that provides for the filing of a Rule 35(b) motion upon the defendant's "substantial assistance" and the defendant has fulfilled his obligation under the agreement, the court may compel specific performance. See Santobello v. New York, 404 U.S. 257, 262-63 (1971); United States v. Isaac, 141 F.3d 477, 481-82 (3d Cir. 1998). However, where the agreement gives the government "sole discretion" to determine whether the defendant's assistance was substantial, the court has the power to review the government's refusal and grant a remedy only if the refusal to seek a downward departure was in "bad faith." Isaac, 141 F.3d at 484. Under such circumstances, the Third Circuit has articulated that "[t]he sole requirement is that the government's position be based on an honest evaluation of the assistance provided and not on considerations extraneous to that assistance." Id.;See also United States v. Rexach, 896 F.2d 710, 713 (2d Cir. 1990) ("Thus, where the explicit terms of a cooperation agreement leave the acceptance of the defendant's performance to the judgment of the prosecutor, the prosecutor may reject the defendant's performance provided he or she is honestly dissatisfied."). Where no agreement exists, the Supreme Court has held that the government's failure to file a "substantial assistance" motion can be challenged only if the government has refused to file the motion "based on an unconstitutional motive, like race or religion, or for reasons "not rationally related to any legitimate Government end." Wade v. United States, 504 U.S. 181, 185-86; accord Isaac, 141 F.3d at 481. Absent an agreement, "a claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary hearing."Wade, 504 U.S. at 186.
Although these cases analyze a court's authority to review the government's decision not to file a § 5K1.1 motion, they are instructive in this context given the similarities between the two procedural devices. Both § 5K1.1 and Rule 35(b) motions provide a means by which the government may reward a defendant's cooperation. The two provisions differ only in their timing — the former allows for departure at the time of the original sentencing, while the latter operates after sentence has been imposed.
In the instant action, petitioner has not provided any factual basis in support of her assertion that there existed a "written cooperation agreement," the "explicit terms" of which required the government to file a Rule 35(b) motion in the event she assisted in the extradition of her coconspirator. Her "bald assertions and conclusory allegations" in this regard "do not warrant sufficient grounds to require an evidentiary hearing." Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991); see also United States v. Martinson, 1998 WL 111801, at *2 (E.D. Pa. Mar. 4, 1998) (holding that in the absence of supporting evidence, petitioner's "bald assertions and assumptions" did not warrant an evidentiary hearing); United States v. Simone, No. 91- 569, 1998 WL 54387, at *2 (E.D. Pa. Feb. 3, 1998) (stating that an evidentiary hearing is not required when the record conclusively establishes that a petitioner is not entitled to relief). Nor has petitioner averred that the government's alleged breach was motivated by "bad faith" or unconstitutional motives. She simply asserts that her cooperation was such that she is entitled to relief. Accordingly, the court concludes that petitioner has not made the "substantial threshold showing" required to trigger judicial scrutiny of the government's conduct.
Nonetheless, the court notes that petitioner's allegation that the government breached an alleged cooperation agreement is without factual support. To the extent there was a cooperation agreement between the parties requiring the government to file a motion for reduction of her sentence (or leaving it up to the government's discretion to do so), petitioner received the benefit of it. The record discloses that following her appearance before the United States Magistrate Judge the government did, in fact, file a Rule 35(b) motion for petitioner's assistance in swearing to the affidavit. The hearing on the motion, however, was stayed, at "[t]he parties' request," pending the outcome of the prosecution of the coconspirator or petitioner's request that the motion be heard. To date, petitioner has not filed a notice for hearing on the Rule 35(b).
IV. CONCLUSION
For the foregoing reasons, the court concludes that petitioner's motion to set aside or vacate her sentence pursuant to 28 U.S.C. § 2255 lacks merit. Therefore, her motion shall be denied. An appropriate order shall issue.