Opinion
This petition was originally filed within petitioner's criminal case, United States v. Delacruz, No. 02 Cr. 191 (SAS). I ordered that the petition be transferred to a separate civil docket. See Order, United States v. Delacruz, No. 02 Cr. 191 (SAS) (July 20, 2006).
July 27, 2006.
Ramon A. Pagan, Esq. LAW OFFICES OF RAMON W. PAGAN Bronx, NY, for Petitioner.
Arianna R. Berg Assistant United States Attorney New York, NY, for Respondent.
OPINION AND ORDER
Felix Antonio Delacruz moves to vacate, set aside, or correct his sentence pursuant to section 2255 of Title 28, United States Code ("section 2255"). Delacruz asserts that he received ineffective assistance of counsel because his former attorney failed to honor his request to appeal his conviction, which became final on May 3, 2004. Delacruz further contends that, pursuant to Campusano v. United States, he is entitled to an evidentiary hearing to resolve the question of whether Delacruz instructed his former counsel to file a Notice of Appeal on his behalf. I need not reach this issue, however, because Delacruz's petition must be denied as untimely.
442 F.3d 770 (2d Cir. 2006) (district court must generally hold an evidentiary hearing to resolve fact disputes concerning whether petitioner instructed counsel to file a notice of appeal). Delacruz asserts that "had trial counsel filed a notice of appeal, Delacruz would have been eligible to have his sentence reconsidered in the new . . . regime [of] United States v. Booker [, 543 U.S. 220 (2005)]." Memorandum of Law in Support of Petition to Vacate ("Pet. Mem.") at 1.
I. BACKGROUND
A. The Offense Conduct
Delacruz was charged via information with (1) unlawful possession of a firearm by a felon, in violation of section 922(g) of Title 18, United States Code; and (2) conspiring to distribute and possess with intent to distribute five kilograms and more of cocaine, in violation of sections 812, 846, 841(a)(1), and 841(b)(1)(A) of Title 21, United States Code. These charges arose from a protective search of Delacruz's apartment, to which he consented, which uncovered 1,095 grams of cocaine, a loaded .9 millimeter semiautomatic pistol, and various items of drug paraphernalia. I denied Delacruz's motion to suppress the fruits of this search and the statements he made at the time of the search, finding that Delacruz consented to the search and that his testimony to the contrary was not credible.
See Superseding Information, United States v. Delacruz, No. 02 Cr. 191 (SAS) (Sept. 11, 2003).
See 5/22/06 Letter from AUSA Arianna Berg to the Court ("Gov't Mem.") at 2 (citing Presentence Report ¶¶ 8-15).
See 9/5/02 Transcript of Proceedings at 210-12.
B. Plea Allocution, Sentencing, and Post-Sentence Proceedings
On September 11, 2003, Delacruz appeared before Magistrate Judge Debra Freeman and pled guilty to both charges against him pursuant to a plea agreement (the "Plea Agreement") with the Government. The Plea Agreement stipulated that Delacruz "will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Sentencing Guidelines Range" of 151 to 188 months imprisonment. The parties further agreed that neither party would seek a departure from the Guidelines Range, or any other adjustment not set forth in the Plea Agreement. On September 30, 2003, this Court accepted Delacruz's guilty plea.
See 9/11/03 Transcript of Proceedings at 1-4, 13, 16-24; see also 8/28/03 Letter from AUSA Joshua Goldberg to Roy Kulcsar, Esq. ("Plea Agreement"), Exhibit A to Gov't Mem.
Plea Agreement at 4-5.
See id. at 4.
On April 19, 2004, this Court sentenced Delacruz to a term of 120 months in custody for Count One and 151 months' imprisonment on Count Two, to run concurrently. I advised Delacruz of his right to appeal his sentence within ten days, but also reminded him that this right was circumscribed by the terms of the Plea Agreement. I also informed Delacruz that if he could not afford appellate counsel, he could apply for leave to appeal in forma pauperis.
See 4/19/04 Transcript of Proceedings at 8-9, Ex. C to Gov't Mem. In calculating Delacruz's offense level, I added two points for obstruction of justice because I previously found that Delacruz gave false testimony at his suppression hearing. See id. at 4.
See id. at 11.
See id.
At the time of the Plea Agreement and at sentencing, Delacruz was represented by Roy Kulcsar. Kulcsar met with Delacruz at the Metropolitan Detention Center shortly after sentence was imposed. According to Delacruz, one purpose of this meeting was to discuss Delacruz's appellate options. Delacruz claims that, after Kulcsar agreed to initiate an appeal, Kulcsar promised to return within a week and provide Delacruz with a copy of the filed Notice of Appeal. But according to Delacruz, he never heard from Kulcsar again. Kulcsar flatly denies that Delacruz ever asked him to file an appeal. Kulcsar's representation of Delacruz ended on April 28, 2004, although the record is unclear as to whose idea it was that Kulcsar cease to represent Delacruz.
See 8/12/05 Affidavit of Felix Antonio Delacruz ("Delacruz Aff.") ¶ 28, Ex. D. to Affirmation of Ramon A. Pagan, Esq. ("Pagan Aff."); see also 5/17/06 Affidavit of Roy Kulcsar, Esq. ("Kulcsar Aff.") ¶ 5, Ex. D to Gov't Mem.
See Delacruz Aff. ¶¶ 28-29.
See id. ¶ 29.
See id. ¶ 30.
See Kulcsar Aff. ¶ 5 ("I specifically remember that Delacruz did not instruct me to file a Notice of Appeal [at the post-sentencing meeting]. We had no discussion regarding an appeal and, at no time, did I suggest that I would file a Notice of Appeal for him. In addition, it is my practice to immediately file a Notice of Appeal once instructed to do so by my client.").
The Government asserts that "on April 28, 2004, Delacruz terminated Kulcsar's representation of him." Gov't Mem. at 5. The case docket recites that Kulcsar's representation was terminated on April 28, 2004, but provides no further information. But Delacruz responds that "the only notation regarding the `termination' of Mr. Kulcsar in the record is that the notice given to the Court was by phone, and there is no indication that Mr. Delacruz actually partook in that decision. Rather, it seems, Mr. Kulcsar terminated himself." 6/12/06 Letter from Ramon A. Pagan, counsel for petitioner, to the Court ("Reply Mem.") at 3. Delacruz's counsel further asserts that "[c]onversations with family members, willing to testify (but living in the Dominican Republic) indicate that they had conversations with Mr. Kulcsar, who had assured them that he was going forward with an appeal." Id. (also offering to obtain affidavits to this effect).
In any case, no appeal was ever filed. Delacruz now asserts that he "did not learn until December 2004 that Mr. Kulcsar did not file a notice of appeal on my behalf. That was when I sought to retain new counsel, and began discussing the matter with [his present counsel]." Delacruz's motion papers tell a slightly different story, asserting that he merely began to suspect that no appeal was filed by December 2004, but that this suspicion was not confirmed until his current counsel determined that no appeal had been filed in "late January 2005." Delacruz filed the present petition approximately one year later, on January 13, 2006.
Delacruz Aff. ¶ 31.
Pet. Mem. at 12. Accord Pagan Aff. ¶ 19 ("Our office first informed Delacruz of the lack of a Notice of Appeal having been filed in January of 2005"). Delacruz's present counsel entered a Notice of Attorney Appearance on February 18, 2005, but did not obtain the case file from Kulcsar until March 23, 2005. See id.
II. APPLICABLE LAW
A. Section 2255
Section 2255 allows a convicted person held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. Accordingly, collateral relief under section 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes `a fundamental defect which inherently results in a complete miscarriage of justice.'"
See 28 U.S.C. § 2255.
Cuoco v. United States, 208 F.3d 27, 29 (2d Cir. 2000) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
B. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") introduced for the first time a statute of limitations with respect to the filing of habeas corpus petitions. Pursuant to AEDPA, an application for a writ of habeas corpus is subject to a one-year period of limitation which runs from the latest of:
Pub.L. No. 104-132, 110 Stat. 1214.
See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998).
(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 or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
In Clay v. United States, 537 U.S. 522, 527 (2003), the Supreme Court held that a conviction becomes final when the Supreme Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." 402 F.3d 116, 118 (2d Cir. 2005). "[A]n unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires." Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005) (citing Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (finding that "an unappealed federal criminal judgment becomes final ten days after it is entered").
To apply section 2255(4) in the context of an alleged failure to file a timely notice of appeal, a court must determine "when a duly diligent person in petitioner's circumstances would have discovered that no appeal had been filed." A petitioner is not expected to conduct "maximum feasible diligence" — only "due" or "reasonable" diligence is required. Moreover, "[s]ection 2255(4) is not a tolling provision that extends the length of the available filing time by excluding certain periods that post-date the start of the limitations clock from the calculation of how much time has run. Rather, it resets the limitations period's beginning date, moving it from the time when the conviction became final . . . to the later date on which the particular claim accrued."
Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000).
Id. at 190 n. 4.
Id. at 190.
III. DISCUSSION
Delacruz's conviction became final on May 3, 2004, twenty months before his petition was filed on January 13, 2006. Thus, Delacruz relies on section 2255(4) for his argument that this petition is timely. For him to be correct, a duly diligent prisoner in Delacruz's position must have been unable to discover that no appeal had been filed prior to January 13, 2005. But even accepting Delacruz's version of events, he should have been able to discover, with reasonable diligence, that his appeal had not been filed before that date.
I reach this conclusion despite the fact that, for purposes of this discussion only, I construe the record in the light most favorable to Delacruz, and I also assume arguendo that Delacruz requested that an appeal be filed. Thus, any evidentiary hearing on the timeliness issue would be pointless.
In Wims v. United States, the Second Circuit noted that "the date on which the [2255(4)] limitations clock began to tick is a fact-specific issue the resolution of which depends, among other things, on the details of [petitioner's] post-sentence conversation with his lawyer and on the conditions of his confinement in the period after [conviction became final absent appeal]. Here, Delacruz's own account of his post-sentence conversation with Kulcsar belies his claim that he exercised reasonable diligence.
225 F.3d at 190-91 (reversing district court's dismissal of habeas petition because "the five-month delay between September 1997 and February 1998 — one year before Wims sought habeas relief — is not so clearly unreasonable that it plainly appears from the face of appellant's petition and supporting papers that he is barred from habeas relief.").
Delacruz asserts that Kulcsar told him at their last meeting (which must have occurred before Kulcsar's representation ended on April 28, 2004) that "he would meet [Delacruz] again later that week to give me a copy of the notice of appeal and further discuss the matter." If, as Delacruz contends, he never heard from Kulcsar again, the fact that Kulcsar did not keep his appointment for "later that week" should have warned Delacruz that something was amiss. Due diligence then demanded that Delacruz inquire into the status of his appeal, an inquiry that would have uncovered the fact that no appeal had been filed. Thus, allowing for some amount of time for Delacruz to inquire as to the status of his appeal, the one-year limitations clock began to run sometime in early May 2004, well over a year before this petition was filed.
Delacruz Aff. ¶ 29 (emphasis added).
See id. ¶ 30.
It is generally true that "a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice." Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); cf. Montenegro v. United States, 248 F.3d 585, 592 (7th Cir. 2001), abrogated on other grounds by Ashley v. United States, 266 F.3d 571 (7th Cir. 2001) (determination of due diligence "must take into account the conditions of confinement and the reality of the prison system"). But here, when Delacruz claims that he expected to receive a copy of the Notice of Appeal at a meeting that was supposed to occur within a specific time-frame, the general rule set forth in Flores-Ortega is inapplicable. See United States v. Barrett, No. 04-C-0855-C, 2005 WL 978105, at *1-2 (W.D. Wis. Apr. 26, 2005) (rejecting section 2255 petition as untimely: "According to [defendant's] own averments, counsel had `left [defendant] under the impression' . . . that documentation of the appeal would be sent to defendant. When that documentation did not arrive, defendant should have been alerted to the possibility of a problem. At that point, he should have started checking with the court to see whether he was correct about his `impression' that an appeal had been filed.").
See Montenegro, 248 F.3d at 593 (quotation and citation omitted) ("that an appeal had not been filed was a matter of public record, which reasonable diligence could have unearthed"); see also Barrett, 2005 WL 978105, at * 1-2 ("It is not always easy for laypeople to learn the status of their court proceedings, but this does not mean that they are excused from doing so. . . . This is not a situation in which a defendant needs DNA testing or the discovery of the real perpetrator of the crime in order to press his claim. The lack of any appeal from his conviction was evident on this court's docket, which is a public record.").
In his reply brief, Delacruz alludes to certain relatives living in the Dominican Republic who allegedly received assurances from Kulcsar that Delacruz's appeal was going forward. See Reply Mem. at 3. But even if these relatives relayed this information to Delacruz sometime after the post-sentence meeting with Kulcsar, such assurances could not have negated the duty of inquiry that arose when Delacruz's expected second meeting with Kulcsar never occurred.
Delacruz's petition is untimely for yet another reason. Delacruz implies, as he must to avoid being time-barred, that the Court should begin section 2255(4)'s one-year limitations clock on an unspecified date in "late January 2005," when his present counsel confirmed that no appeal had been filed. But at a minimum, Delacruz suspected that no appeal had been filed by December 2004, and in fact his own affidavit states definitively that he had "learned" of the lack of an appeal by then. If Delacruz "learned" of the facts supporting his claim by December 2004, the statute of limitations clearly elapsed by December 2005. And given that Delacruz apparently received no correspondence from the Second Circuit regarding his appeal by December 2004, it is hard to believe that Delacruz was not aware of a problem at that point.
Pet. Mem. at 12. Delacruz does not provide the date that his present counsel was retained, or the date that counsel determined that no appeal had been filed. This is surely information that any attorney would keep in the ordinary course of business. And this petition, filed on January 13, 2006, could be untimely even if one accepts Delacruz's premise that he could not have discovered his cause of action until sometime in January 2005. Thus, it is necessary to know the exact date in January 2005 that Delacruz believes that his cause of action accrued. As Delacruz does not provide this information, it raises a concern that he is fudging the relevant dates in order to create a fact issue as to the timeliness of this petition.
Delacruz Aff. ¶ 31 ("I did not learn until December 2004 that Mr. Kulcsar did not file a notice of appeal on my behalf") (emphasis added).
See Allen v. Culliver, No. Civ.A. 03-0375-WS-L, 2005 WL 1705020, at *2 (S.D. Ala. July 20, 2005) ( pro se habeas petition untimely even though petitioner claimed that he had timely delivered his Notice of Appeal to prison official for mailing: "[petitioner] knew or should have known that something was amiss when he received no acknowledgment of or response to his Notice of Appeal, and no notice that an appeal had in fact been initiated on his behalf in the Eleventh Circuit" for twelve months after he allegedly mailed his Notice of Appeal).
Even if Delacruz merely "suspected" the worst in December 2004, reasonable diligence then demanded an inquiry into the status of the appeal. Here, by counsel's own admission, "Delacruz first came into contact with our office in December of 2004, suspicious that Mr. Kulcsar had not adequately prosecuted his appeal, if he had done so at all." But counsel does not explain why it then took over a month to confirm that no appeal had been filed. And while Delacruz's present counsel notes that "we finally retrieved the file in this matter on March 23, 2005," this is totally irrelevant — a lawyer does not need to wait to obtain a case file before determining whether an appeal had been filed in a given case.
Pagan Aff. ¶ 19; but see id. ("[we] were not able to actually discuss this matter with Delacruz until mid-April 2005."). Pagan does not attempt to reconcile these two seemingly contradictory statements in his own affidavit.
Id.; see also Order, United States v. Delacruz, No. 02 Cr. 191 (SAS) (Mar. 14, 2005) (compelling Kulcsar to produce case file to Pagan).
See supra note 34 and accompanying text.
Thus, even construing the record in the light most favorable to Delacruz, the one-year statute of limitations on his ineffective assistance of counsel claim began running, at the very latest, sometime in December 2004. The present petition, filed thirteen months later, is untimely, and Delacruz's petition is accordingly denied.
Delacruz does not explicitly invoke the doctrine of equitable tolling, and in any case I would not apply that doctrine here. Equitable tolling applies only in rare and exceptional circumstances, where a party "has been prevented in some extraordinary way from exercising his rights." Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (internal quotation and citation omitted). "When determining whether equitable tolling is applicable, a district court must consider whether the person seeking application of the equitable tolling doctrine (1) has acted with reasonable diligence during the time period she seeks to have tolled, and (2) has proved that the circumstances are so extraordinary that the doctrine should apply." Zerilli-Edelglass v. New York City Trans. Auth., 333 F.3d 74, 80-81 (2d Cir. 2003) (quotation and citation omitted). Here, as noted above, Delacruz did not act with reasonable diligence under the circumstances to determine whether an appeal had been filed.
Even if I were to reach the merits of Delacruz's petition, it would be denied without an evidentiary hearing. "[T]he district court has discretion to determine if a testimonial hearing will be conducted" in deciding the issue of whether a petitioner requested that an appeal be filed. Here, as already noted, the credibility of Delacruz's affidavit is undermined by its internal inconsistency. He claims that he expected Kulcsar to deliver a Notice of Appeal within a week of their last meeting, but also claims not to have become suspicious that no appeal was filed until several months later. Moreover, in assessing Delacruz's present claims I must consider the fact that Delacruz lied to the Court in prior proceedings. Finally, Kulcsar, who was admitted to the bar of this Court in 1970, states that "it is my practice to immediately file a Notice of Appeal once instructed to do so by my client." If such an experienced attorney did not file an appeal, it is appropriate to infer that he was not asked to do so.
Campusano, 442 F.3d at 776 (citation omitted). Accord Chang v. United States, 250 F.3d 79, 85-86 (2d Cir. 2001) (citation omitted) (affirming the denial of a section 2255 petition without a hearing — "allegations of facts outside the record can [sometimes] be fully investigated without requiring the personal presence of the prisoner").
See Delacruz Aff. ¶¶ 29-30.
See supra note 9; see also Gutierrez-Fernandez v. United States, No. 99 Civ. 4484, 2000 WL 1559945, at *4 (S.D.N.Y. Oct. 18, 2000) (denying, without a hearing, section 2255 petition based on alleged failure to file an appeal, in part because petitioner's credibility had been "tainted" by his misstatements during sentencing proceedings).
Kulcsar Aff. ¶ 5.
See United States v. Ramos, No. Civ.A. 96-5046, 1997 WL 563446, at *2-3 (E.D. Pa. Sept. 2, 1997) (rejecting petitioner's claim that he did not knowingly and intelligently waive right to appeal, relying in part on testimony of petitioner's former attorney that it was his standard practice to fully advise clients of their appellate rights, and to file an appeal if instructed to do so).
IV. CONCLUSION
For the foregoing reasons, Delacruz's petition is denied. The remaining question is whether to grant a certificate of appealability. For a certificate of appealability to issue, Petitioner must a "substantial showing of the denial of a constitutional right." "A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further."' Petitioner has made no such showing in this case. Accordingly, I decline to issue a certificate of appealability. The Clerk of the Court is directed to close this motion [number 33 on the criminal docket sheet and number 1 on the civil docket sheet] and this case.
Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation and citation omitted)).
SO ORDERED.