Opinion
Civil Action 20 Civ. 1170 (JSR) (SLC) CRIMINAL ACTION 13 Cr. 30 (JSR)
11-20-2023
EDGAR ENCARNACION-LAFONTAINE Petitioner, v. UNITED STATES OF AMERICA, Respondent.
HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
SARAH L. CAVE UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Before the Court is pro se petitioner Edgar Encarnacion-Lafontaine's (“Encarnacion”) motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (“Section 2255”), in which he asserts that his counsel provided ineffective assistance. (ECF No. 1 (the “Motion”)). Following a jury trial in 2014, Encarnacion was convicted of conspiracy to commit witness tampering, marijuana conspiracy, cocaine conspiracy, extortion conspiracy, and extortion, and sentenced to 180 months' imprisonment and five years of supervised release. (Id. at 1; see Cr. ECF No. 187 at 3-4).For the reasons below, I respectfully recommend that the Motion be DENIED.
Page numbers refer to the ECF page number, unless otherwise noted. Citations to “ECF” refer to documents filed in this civil action, citations to “Cr. ECF” refer to documents filed in United States v. Encarnacion-Fontaine, No. 13 Crim. 30 (S.D.N.Y.), and citations to “A.” refer to Encarnacion's Appendix on appeal to the Second Circuit, No. 15-1223-cr.
II. BACKGROUND
Encarnacion is currently incarcerated at the Manchester Correctional Facility in Manchester, Kentucky. (ECF No. 16). The background to his claims is set forth in prior decisions of the Second Circuit and the Honorable Jed S. Rakoff, and is incorporated by reference. See United States v. Encarnacion-Lafontaine, 639 Fed.Appx. 710 (2d Cir. 2016) (“Encarnacion IV”) (affirming conviction); United States v. Encarnacion, No. 13 Cr. 30 (JSR), 2015 WL 756702 (S.D.N.Y. Feb. 17, 2015) (“Encarnacion III”) (denying motion for judgment of acquittal or, in the alternative, new trial); United States v. Encarnacion, Nos. 10 Cr. 905 (JSR) & 13 Cr. 30 (JSR), 2014 WL 6769117 (S.D.N.Y. Nov. 14, 2014) (“Encarnacion II”) (denying government's motion for reconsideration of order permitting Encarnacion to withdraw guilty plea); United States v. Encarnacion, Nos. 10 Cr. 905 (JSR) & 13 Cr. 30 (JSR), 2014 WL 3500557 (S.D.N.Y. July 9, 2014) (“Encarnacion I”) (findings of fact and conclusions of law following Fatico hearing (the “Fatico Hearing”)). Summarized below is the background necessary to analyze the Motion.
Unless otherwise noted, all internal quotation marks and citations are omitted from case citations.
The purpose of a hearing under United States v. Fatico, 579 F.2d 707 (2d Cir. 1978) “is to develop evidence relevant to sentencing.” See Bedoya-Cano v. United States, No. 07 Civ. 9276 (JSR) (DF), 2008 WL 4200167, at *3 n.3 (S.D.N.Y. May 29, 2008), adopted by, 2008 WL 4298498 (S.D.N.Y. Sept. 11, 2008).
A. Factual Background
Encarnacion's conviction and sentence stem from his participation in conspiracies involving marijuana, cocaine, extortion, and witness tampering, as well as the substantive crime of extortion. See Encarnacion III, 2015 WL 756702, at *1. The facts involving each offense are briefly summarized.
1. The Marijuana Conspiracy
Between 2003 and December 2010, Encarnacion worked as a truck driver for a FedEx contractor based in Woodbridge, New Jersey. (Cr. ECF No. 169 at 7, 9). In 2005, Encarnacion approached Edwin Herrera (“Edwin”), a member of a multi-state marijuana trafficking organization (the “Marijuana Organization”), and offered to drive his FedEx truck to Florida “and pick up [] loads” to drive back to New York for the Marijuana Organization. (Cr. ECF No. 161 at 99, 102-103, 116-17). Encarnacion also offered to transport cocaine because it was “more lucrative and more beneficial[,]” and “easier to package, easier to carry, [and] easier to hide in the trucks.” (Cr. ECF No. 161 at 117). Edwin did not at that time accept Encarnacion's offer because Encarnacion “was too far away from Miami” and “[i]t would have been too much of a risk[.]” (Cr. ECF No. 161 at 117-18).
In 2010, Manuel Geovanny Rodriguez-Perez (“Rodriguez”), the leader of the Marijuana Organization, contacted Encarnacion through Edwin's brother, Isidro Herrera (“Isidro”), to solicit Encarnacion to transport marijuana from California to New York. (Cr. ECF No. 163 at 160-62; see Cr. ECF No. 161 at 40-41). Encarnacion told Isidro to share his number with Rodriguez and to tell Rodriguez “that his routes have changed.” (Cr. ECF No. 163 at 162).
Calls to and from Rodriguez's phone revealed Encarnacion's involvement in the marijuana conspiracy. On June 17, 2010, Isidro informed Rodriguez of his conversation with Encarnacion and shared Encarnacion's phone number. (Cr. ECF No. 163 at 162-65; A. 1025-27). Rodriguez called Encarnacion the same day, and they met in person the next day, June 18, 2010, when Rodriguez explained to him “how th[e] operation was going to be[.]” (Cr. ECF No. 169 at 83-85; A. 1028-30). Encarnacion and Rodriguez spoke on the phone and met in person over the next several days. (A. 1034-47). On June 24, 2010, for example, Encarnacion told Rodriguez that he had asked FedEx to send him “to the desert[,]” (A. 1041), and confirmed his plan to meet Rodriguez and his “guys” in Los Angeles on June 26, 2010. (A. 1061-63). Encarnacion admitted that Rodriguez asked him “to transport marijuana” cross-country, (Cr. ECF No. 169 at 80; see Cr. ECF No. 161 at 50-51), and that he agreed do so. (A. 1042, 1047, 1058, 1060-63, 1089).
On June 24, 2010, Edwin arrived in Santa Monica, California, where he met Rodriguez and other members of the Marijuana Organization. (Cr. ECF No. 163 at 5, 13, 96-97). During the meeting, Rodriguez told Edwin that he had enlisted Encarnacion to transport the drugs from California to New York and that Encarnacion was “on a dry run” to bring $60,000 in cash to California to pay for the drugs. (Cr. ECF No. 163 at 15-16). Rodriguez planned for Encarnacion to drive the drugs “back to New York.” (Cr. ECF No. 163 at 16-17; see A. 1076). En route to California, however, Encarnacion told Rodriguez that he was held up in Utah due to a multifatality accident that “shut down” the highway, following which FedEx sent him back east to Northern Kentucky. (A. 1089-91, 1093-94). On returning to the east coast, Encarnacion continued to speak and meet with Rodriguez about Encarnacion transporting marijuana for the Marijuana Organization, (A. 1098, 1110-18), although he later described these conversations as “giving [Rodriguez] the runaround.” (Cr. ECF No. 169 at 88-89). Rodriguez expressed frustration with Encarnacion's lack of reliability, (A. 1110-16), but into August 2010, Encarnacion continued to express his willingness to transport the drugs. (A. 1119-24).
In his post-arrest confession, Encarnacion admitted having discussions with Rodriguez about transporting marijuana from San Francisco to New York in his FedEx truck, but never “accomplished” any deliveries. (Cr. ECF No. 161 at 50-51).
2. The Cocaine Conspiracy
Between August and December 2010, Encarnacion also used his FedEx truck to transport cocaine. Rafael Goris (“Goris”), Encarnacion's FedEx driving partner, testified that, in August 2010, he observed Encarnacion receive from “some men” in the parking lot of a truck stop in Rialto, California, two boxes, which Encarnacion described as “a gift for some friends in New York” and placed under the bed of the sleeper compartment of the FedEx truck. (Cr. ECF Nos. 165 at 27-30; 169 at 815). On returning to the FedEx facility in Woodbridge, New Jersey (the “Woodbridge Facility”), Encarnacion removed the boxes from the truck before the security checkpoint and put them in the trunk of Goris's vehicle. (Cr. ECF No. 165 at 31). Goris then drove Encarnacion home and helped him carry one of the boxes, which weighed about 25 pounds, to Encarnacion's apartment. (Cr. ECF No. 165 at 33-34).
Another incident occurred in September 2010, when Encarnacion received from “a guy” in the parking lot of a restaurant in Industry City, California, a gift bag, which Encarnacion placed under the bed in the sleeper compartment of the truck. (Cr. ECF No. 165 at 14-15). At one point while Encarnacion was driving, Goris inspected the bag and saw six packages of what appeared to him to be cocaine. (Cr. ECF No. 165 at 36). When Goris, concerned, asked Encarnacion what was in the bag, Encarnacion stated that he was doing “a favor for a friend” and offered Goris $3,000 “to keep quiet[.]” (Cr. ECF No. 165 at 37, 130). When they returned to the Woodbridge Facility, they again stopped the truck before the security checkpoint, and Encarnacion handed the bag containing the cocaine to a woman waiting in a black vehicle. (Cr. ECF No. 165 at 38).
A third incident occurred in or about November 2010, when Encarnacion told Goris to pull over while they were driving to a FedEx facility in California, and Encarnacion exited the truck to speak with the same “guy” who had given him the shopping bag in Industry City a month earlier. (Cr. ECF No. 106 at 21-22; Cr. ECF No. 165 at 39-40). Goris became agitated and told Encarnacion to find a new driving partner, but Encarnacion tried to calm Goris and told him it was “nothing.” (Cr. ECF No. 165 at 40-41).
In December 2020, en route to the California FedEx facility, Encarnacion directed Goris to stop in a shopping center parking lot, where Encarnacion got out and spoke several people for about 15 minutes before returning to the truck with three boxes, which he again placed under the bed in the sleeper compartment. (Cr. ECF No. 165 at 41-43). While driving back to the Woodbridge Facility, Goris inspected the boxes to find that they contained approximately 70 packages like those Goris had seen in the bag in September 2010. (Cr. ECF No. 165 at 43-44). When Goris angrily asked Encarnacion what he was doing, Encarnacion told him “there was a lot of money to be made,” and offered him $35,000 to remain quiet. (Cr. ECF No. 165 at 44-45). Goris agreed to accept the money, but Encarnacion never paid. (Cr. ECF No. 165 at 45). When they arrived at the Woodbridge Facility, before the security checkpoint, Encarnacion handed the boxes to someone waiting in a green vehicle. (Cr. ECF No. 165 at 45-46).
Later in December 2010, Encarnacion asked that he and Goris be dispatched to Los Angeles, California, but they were given a load to Columbus, Ohio instead. (Cr. ECF No. 165 at 47-48). Just after exiting the Woodbridge Facility, Encarnacion retrieved from the driver of the same green vehicle a large black duffle bag, which he placed under the bed in the sleeper compartment. (Cr. ECF No. 165 at 48-49). While pretending to go to sleep in the sleeper compartment, Goris opened the bag to find that it contained numbered shrink-wrapped packages of cash. (Cr. ECF No. 165 at 50). When Goris asked Encarnacion what it was, he responded that the cash was part of the previous week's shipment and “nobody gets in trouble for carrying money.” (Cr. ECF No. 165 at 51). On arriving in Columbus, Encarnacion again asked that he and Goris be routed to California, but they were sent back to the Woodbridge Facility instead. (Cr. ECF No. 165 at 51-52). After Encarnacion exited the truck at the Woodbridge Facility, Goris parked the truck, took his belongings and one package of the money-worth $30,000-from the duffle bag, placed them in his car, and drove away. (Cr. ECF No. 165 at 5356, 62).
In his post-arrest confession, Encarnacion confirmed his involvement in the cocaine conspiracy. (Cr. ECF No. 161 at 22, 53). As recounted by the arresting officer, Special Agent Jason Samuels, Encarnacion admitted that, beginning in 2010, he picked up from people “he believed to be Mexicans” 20 kilograms of cocaine in a box, which he transported in his FedEx truck to people “he believed were Dominicans” in New Jersey. (Cr. ECF No. 161 at 53). Encarnacion also stated that he had planned to travel to the Dominican Republic “to be paid a thousand dollars per kilogram for the cocaine that he transported.” (Cr. ECF No. 161 at 53).
3. The Extortion and Witness Tampering Conspiracies
To convince Goris to return the $30,000 he took from the duffle bag, Encarnacion made a series of telephonic, online, and in-person threats to Goris and his family.
a. Threats in December 2010
In the hours after Goris took the cash from the duffle bag, Encarnacion left multiple voicemails for Goris, accusing him of taking his car keys and telling Goris that “he was gonna find” him and make him and his family pay if Encarnacion could not find him. (Cr. ECF No. 165 at 60; see Cr. ECF No. 169 at 52, 55). Scared of Encarnacion, Goris and his family stayed at a hotel, and subsequently “changed cars” and moved their residence. (Cr. ECF No. 165 at 60-61). Several days later, Encarnacion sent messages from his personal Facebook account to two individuals with the last name “Goris” and to a friend of Goris's, asking them to call the number of Encarnacion's girlfriend, Nicole. (A. 890, 906-07; Cr. ECF No. 165 at 88). When Goris's friend called Nicole's number, Encarnacion answered, said that Goris was in “trouble” at work and had “disappeared,” and asked for Goris's phone number and location. (Cr. ECF No. 165 at 178-79).
b. Threats in 2012
On January 16, 2012, Encarnacion opened a Facebook account in the name of Maria Marmol, Goris's grandmother (the “Marmol Account”), and on May 30, 2012, opened another Facebook account in the name of Rosa Mendez (the “Mendez Account”). (Cr. ECF Nos. 165 at 88; 169 at 176; A. 875-84). Both the Marmol Account and the Mendez Account were accessed from an internet cafe “located in Encarnacion's neighborhood.” Encarnacion III, 2015 WL 756702, at *3. In addition, “[o]n multiple occasions, the Mendez [A]ccount was accessed immediately after the Marmol [A]ccount had been used, giving rise to the inference that one person controlled both accounts.” Id. (See A. 875-80, 883-84). Some of the messages “contained personal details about Encarnacion and his ex-wife (flattering the former and disparaging the latter) and about Encarnacion's daughter.” Encarnacion III, 2015 WL 756702, at *3. (See Cr. ECF No. 167 at 3940; A. 877-78).
On January 26, 2012, and February 6, 2012, Encarnacion used the Marmol Account to send threatening messages to Goris's sister-in-law (the “Sister-in-Law”), instructing her to tell “Goris to return what he stole” and that if he did not, “ugly things will happen.” (A. 879). Encarnacion claimed to have located Goris's relatives in the Dominican Republic, to whom “some people” would “pay unwanted visits” if Goris did not return the money. (A. 879). Encarnacion instructed Marmol to relay these messages to Goris “RIGHT AWAY,” or she would “receive bad news[.]” (A. 879).
On July 5, 2012, Encarnacion used the Mendez Account to send additional threats to the Sister-in-Law, telling her that “people” were “anxious to catch” Goris and “ha[d] all the information about” Goris's family, to whom “ugly things” would happen if Goris did not return the money. (A. 884). On July 20, 2012, Encarnacion used the Marmol Account to transmit threats to harm Goris's family in the Dominican Republic. (A. 880). On July 29, 2012, Encarnacion, claiming to be a “MEXICAN organization made up of Dominicans too[,]” used the Marmol Account to tell Goris's brother-in-law that, “to avoid tragedies[,]” Goris needed “to return what he stole from us[.]” (A. 876-77). At another point in 2012, after making contact through Facebook, Encarnacion called a member of Goris's family who lived in the Dominican Republic and “demand[ed]” that the money be returned, or “there were going to be a lot of problems and blood was going to be spilled.” (Cr. ECF No. 167 at 20, 24; A. 880).
After Goris's family did not comply with Encarnacion's demands, on September 24, 2012, Encarnacion and another man traveled to the neighborhood in which Goris's mother lived, to locate her apartment. (Cr. ECF No. 171 at 46-47; see Cr. ECF Nos. 163 at 90-91 (cell site data); 167 at 87, 95, 107 (cell site data)). When they returned the next day, September 25, 2012, Encarnacion called Goris's name and, when his mother came to the door, told her, “[i]t's all because of your son. It's your son's fault I lost my job.” (Cr. ECF No. 167 at 68; see Cr. ECF No. 171 at 71). The man with Encarnacion showed Goris's mother a picture of Goris and his daughters, but, out of fear, she claimed not to know them. (Cr. ECF No. 167 at 68-69). See Encarnacion III, 2015 WL 756702, at *3.
A week later, on October 1, 2012, Encarnacion used the Marmol Account to post a picture of Goris and his wife, and a minute later, used the Mendez Account to leave a comment on the photo stating, “What a surprise!!!! And there will be more surprises.” (A. 876). On October 2, 2012, Encarnacion left at Goris's mother's apartment a letter telling her to “Avoid the ‘law', otherwise the family in [the Dominican Republic] will not be saved[.]” (A. 685; see Cr. ECF No. 165 at 99).
After Encarnacion visited Goris's mother's apartment, Goris and his family “went to the police[,]” and Goris agreed to participate in recorded calls with Encarnacion. (Cr. ECF No. 165 at 96, 101). In a recorded call on October 8, 2012, Goris told Encarnacion about the letter his mother received, and Encarnacion responded, “Yeah,” but complained to Goris that he had “been through hell.” (A. 950). Encarnacion told Goris that they were “accomplices . . . together.” (A. 953). Encarnacion asked his friend Juan Peralta (“Peralta”) to call Goris. (Cr. ECF No. 169 at 74). During calls on October 28, 2012 and October 31, 2012, Peralta, claiming to be a Dominican drug trafficker, told Goris that “we're ready for war” if Goris did not repay the $30,000 to Encarnacion. (A. 964-70).
4. Encarnacion's Testimony
Encarnacion testified in his own defense over the course of two days at trial. (Cr. ECF Nos. 169 at 3-195; 171 at 2-98). As to the marijuana conspiracy, Encarnacion denied ever offering or agreeing to transport marijuana for Edwin, but admitted that after Rodriguez asked him to transport marijuana, he gave him “the runaround” by making up a story about the five-fatality highway accident, to show that he “was not reliable for him.” (Cr. ECF No. 169 at 7778, 80, 85, 88-89, 101-02, 142-44, 152). Encarnacion denied ever transporting narcotics or money for Rodriguez. (Cr. ECF No. 169 at 102).
As to the cocaine conspiracy, Encarnacion denied transporting any cocaine or drug proceeds in his FedEx truck or offering to pay Goris $35,000 in hush money. (Cr. ECF No. 169 at 30-31, 65). He claimed that Goris had stolen $3,000-not $30,000-from Encarnacion's black duffle bag, money that Encarnacion claimed he had collected from customers to whom he had delivered mattresses, but denied leaving threatening voicemails for Goris. (Cr. ECF No. 169 at 47, 56).
As to the extortion and witness tampering conspiracies, Encarnacion denied knowing who Maria Marmol and Rosa Mendez were, and denied using the computer at the internet cafe in his neighborhood to send messages from the Marmol and Mendez Accounts. (Cr. ECF No. 169 at 34-35). He admitted going to Goris's mother's apartment, but claimed that he told her that Goris “stole some money from these people” and to “[a]dvise [her] son to return these people their money.” (Cr. ECF No. 169 at 69; see Cr. ECF No. 171 at 71). He disclaimed sending a letter to Goris's mother. (Cr. ECF No. 169 at 70).
B. Procedural Background
1. Criminal Proceedings
a. The Charges Against Encarnacion
In a complaint dated October 13, 2010, and then in a superseding indictment filed on November 9, 2010, Encarnacion and dozens of other individuals, including Rodriguez, Edwin, and Isidro, were charged with conspiracy to distribute marijuana. (United States v. Rodriguez-Perez, No. 10 Cr. 905 (JSR) (S.D.N.Y. 2010), ECF Nos. 1; 130). On December 21, 2010, Encarnacion was arrested, presented, arraigned, and ordered released on bail conditions that included a $200,000 bond and home detention with electronic monitoring (the “Bail Conditions”). (Id. ECF min. entries Dec. 21, 2010; see Cr. ECF No. 161 at 54). Encarnacion remained subject to the Bail Conditions until November 13, 2012. (Cr. ECF No. 161 at 54 (Gov't Ex. 506)).
On November 13, 2012, Encarnacion was arrested and charged in a complaint with narcotics trafficking conspiracy. (Cr. ECF No. 10). In a superseding indictment filed on January 14, 2013, a grand jury charged Encarnacion with five criminal offenses: (1) conspiracy to distribute five kilograms and more of cocaine, in violation of 21 U.S.C. § 841(b)(1)(A); (2) extortion conspiracy, in violation of 18 U.S.C. § 1952(a)(3); (3) extortion, in violation of 18 U.S.C. §§ 875(b) and 2; (4) witness tampering, in violation of 18 U.S.C. §§ 1512(a)(2)(C) and 2; and (5) use of interstate facilities to communicate threats, in violation of 18 U.S.C. §§ 1952(a)(3) and 2. (Cr. ECF No. 10 (the “S1 Indictment”)). In a second superseding indictment filed on January 6, 2014, the grand jury charged Encarnacion with six offenses: (1) marijuana conspiracy, in violation of 21 U.S.C. § 841(b)(1)(A) (“Count 1”); (2) cocaine conspiracy, in violation of 21 U.S.C. § 841(b)(1)(A) (“Count 2”); (3) extortion conspiracy, in violation of 18 U.S.C. § 1952(a)(3) (“Count 3”); (4) extortion, in violation of 18 U.S.C. §§ 875(b) and 2 (“Count 4”); (5) use of interstate facilities to communicate threats, in violation of 18 U.S.C. §§ 1952(a)(3) and 2 (“Count 5”); and (6) conspiracy to commit witness tampering, in violation of 18 U.S.C. § 1512(k) (“Count 6”). (Cr. ECF No. 41 at 1-9 (the “S2 Indictment”)). The S2 Indictment sought enhanced penalties based on the allegation that Encarnacion committed the offenses charged in Counts 2 through 6 while subject to the Bond Conditions. (Cr. ECF No. 41 at 1-9).
b. Pretrial Proceedings
On January 21, 2014, Encarnacion pled guilty to Counts 2, 3, 4, 5, and 6 of the S2 Indictment, but maintained his innocence throughout the colloquy and in the months following. See Encarnacion II, 2014 WL 6769117, at 81. (See Cr. ECF min. entry Jan. 21, 2014; see, e.g., Cr. ECF No. 69 at 20-22). After determining that certain facts relevant to Encarnacion's sentencing were in dispute, Judge Rakoff held the Fatico Hearing. See Encarnacion I, 2014 WL 3500557, at *1. (See Cr. ECF Nos. 94; 106; 108; 113). In findings of fact and conclusions of law, Judge Rakoff found, inter alia that Encarnacion: (i) “played a significant role in the cocaine distribution conspiracy”; (ii) “intimidated and threatened [] Goris and his family when attempting to reclaim the $30,000 in drug proceeds that Goris took”; (iii) was subject to the Bond Conditions when he “undertook the threatening efforts to collect the stolen drug proceeds” and “recruited [] Peralta to assist in the[ir] collection” and (iv) “was not merely a coerced pawn in a criminal organization, but instead played a meaningful role in transporting drugs and in coercively attempting to collect stolen drug proceeds.” Encarnacion I, 2014 WL 3500557, at *1-8.
When he appeared for sentencing on July 9, 2014, “the Court afforded him a final opportunity to withdraw his plea[ and he] took it[.]” Encarnacion II, 2014 WL 6769117, at *1. Judge Rakoff subsequently denied the Government's motion to reconsider the order permitting Encarnacion to withdraw his plea, noting that, “[t]hroughout the plea allocution, Encarnacion, though he eventually pleaded guilty, equivocated, proclaimed his innocence, and was generally reluctant to admit wrongdoing.” Id.
c. Trial and Sentencing
Trial began on December 1, 2014. (Cr. ECF No. 161). The Government's case included testimony from 18 witnesses, documentary exhibits, including photographs, wiretap recordings, cell site data, cell phone records, social media posts, and other correspondence, and stipulations. (See Cr. ECF Nos. 161 at 168; 163 at 250-51; 165 at 188-89; 167 at 186-87; 171 at 201). As noted above, (see § II.A.4, supra), Encarnacion testified in his own defense, and offered several exhibits. (Cr. ECF No. 169 at 198). At the close of the Government's case, Judge Rakoff granted the Government's motion to dismiss Count 5. (Cr. ECF No. 167 at 181). On December 11, 2014, the jury found Encarnacion guilty on the remaining five counts, and made special findings that: (i) the marijuana conspiracy in Count 1 involved at least 100 kilograms of marijuana; (ii) the cocaine conspiracy in Count 2 involved at least five kilograms of cocaine; and (iii) Encarnacion committed the offenses charged in Counts 2, 3, 4, and 6 between July 2012 and November 2012. (Cr. ECF No. 175 at 12-14).
On February 17, 2015, Judge Rakoff denied Encarnacion's motion for acquittal or in the alternative for a new trial. See Encarnacion III, 2015 WL 756702, at *3. With respect to the marijuana conspiracy in Count 1, Judge Rakoff found that “the jury had more than an ample basis for drawing conclusions contrary to what Encarnacion” argued in support of a new trial, in particular, the inference that Encarnacion agreed to “assist Rodriguez in the marijuana trade[.]” Id. at *1. As to the cocaine conspiracy in Count 2, Judge Rakoff described Encarnacion's challenge as “border[ing] on the frivolous.” Id. at *2. Judge Rakoff also rejected Encarnacion's challenge to the sufficiency of the evidence supporting Counts 3, 4, and 6, finding that “Encarnacion attempted to pressure Goris into returning the money by sending Facebook messages, placing phone calls, and making in-person visits to Goris and his relatives.” Id.
On April 3, 2015, Judge Rakoff sentenced Encarnacion principally to 180 months' imprisonment followed by five years of supervised release. (Cr. ECF min. entry Apr. 3, 2015; Cr. ECF No. 187 (the “Judgment”)).
d. Direct Appeal
Encarnacion appealed the Judgment (Cr. ECF No. 189), challenging: (i) the admission into evidence of the threatening Facebook messages and letter to Goris's mother; (ii) the Government's demonstrative exhibits; (iii) other evidentiary errors that collectively justified reversal; and (iv) the sufficiency of the evidence. Encarnacion IV, 639 Fed.Appx. at 713-15. On February 16, 2016, the United States Court of Appeals for the Second Circuit rejected each of these arguments and affirmed the Judgment. See id.
2. Sentencing Reduction Requests
On or about March 22, 2019, Encarnacion submitted a letter to Judge Rakoff inquiring about his eligibility for relief under the First Step Act of 2018 (the “FSA”), 18 U.S.C. § 3006A(a)(1) and (c). (Cr. ECF No. 192). Construing Encarnacion's letter as a motion for resentencing, Judge Rakoff determined that he “does not appear to be eligible for resentencing.” (Cr. ECF No. 191 at 1). On August 12, 2022, Encarnacion filed a motion for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A), which Judge Rakoff also denied. (Cr. ECF Nos. 202-03).
Encarnacion subsequently filed and then withdrew a motion for compassionate release. (Cr. ECF Nos. 195; 197-98).
3. The Motion
On or about February 3, 2020, Encarnacion submitted the Motion, asserting a single claim of ineffective assistance of counsel. (Cr. ECF No. 193; ECF No. 1). Encarnacion asserted that his trial counsel, Natali Todd, Esq., provided deficient representation by failing to: (1) challenge the sufficiency of the evidence of his intent to distribute marijuana and cocaine with respect to Counts 1 and 2; (2) argue that the Government's evidence resulted in a prejudicial variance; and (3) argue at sentencing that he was a “mule” and a “transporter” and thus entitled to leniency. (ECF No. 1 at 4; see ECF No. 11 at 25). On June 24, 2020, the Government filed an opposition to the Motion. (ECF No. 11). Encarnacion submitted a reply in further support of the Motion dated July 23, 2020. (ECF No. 12 (the “Reply”)). Judge Rakoff has referred the Motion for a Report and Recommendation. (ECF No. 2).
III. DISCUSSION
A. Legal Standard for Section 2255 Motions
Pursuant to Section 2255, a prisoner sentenced in federal court “may move the court which imposed the sentence to vacate, set aside or correct the sentence” if the prisoner claims “that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a). Relief under Section 2255 is only available “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 complete miscarriage of justice.” Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (per curiam). Section 2255 is not a vehicle to relitigate questions that were raised and considered on direct appeal. See United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001).
Because Encarnacion is appearing pro se, the Court liberally construes his submissions and interprets them to raise the strongest arguments they suggest. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (stating that pro se papers “must be held to less stringent standards than formal pleadings drafted by lawyers”); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (collecting cases).
B. Analysis
As noted above, in the Motion, Encarnacion argues that his trial counsel was ineffective during trial and at sentencing. (ECF No. 1 at 4). The Government asks the Court to deny the Motion on the grounds that: (1) it is untimely; and (2) Encarnacion's ineffective assistance of counsel claims are meritless. (ECF No. 11 at 20-29).
1. Statute of Limitations
a. Legal Standard
Subject to certain exceptions not applicable here, claims raised in a Section 2255 motion must be brought within one year from the date of the final conviction. 28 U.S.C. § 2255(f). For the purposes of Section 2255, “a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction[,]” which is 90 days after the Court of Appeals' determination. Clay v. United States, 537 U.S. 522, 525-26 (2003).
A movant “is entitled to equitable tolling of the one-year statute of limitations if he shows: ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.'” United States v. Wright, 945 F.3d 677, 684 (2d Cir. 2019) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). For the one-year limitations period to be equitably tolled, a movant under Section 2255 must show that:
extraordinary circumstances prevented him from filing his petition on time, and he must have acted with reasonable diligence throughout the period he seeks to toll. To show that extraordinary circumstances prevented him from filing his petition on time, petitioner must demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances. Hence, if the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing.Baldayaque v. United States, 338 F.3d 145, 150 (2d Cir. 2003). “Whether circumstances qualify as ‘extraordinary' depends not on how ‘unusual the circumstance alleged to warrant tolling is among the universe of prisoners, but rather how severe an obstacle it is for the prisoner endeavoring to comply with' the limitations period.” United States v. Rudge, No. 16 Cr. 311 (KMW), 2019 WL 4867828, at *2 (S.D.N.Y. Sept. 18, 2019) (quoting Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008)); see Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (explaining that “[e]quitable tolling applies only in [] rare and exceptional circumstance[s]”).
Finally, “[i]n exceptional cases, the actual innocence doctrine provides petitioners a gateway to present an otherwise untimely habeas petition.” King v. United States, Nos. 10 Cr. 122 & 14 Civ. 7962 (JGK), 2017 WL 1483337, at *13 (S.D.N.Y. Apr. 25, 2017). An actual innocence claim has two elements. First, the petitioner must present a “credible and compelling” claim of actual innocence. Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir. 2012). To be “credible,” the claim must be supported by “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Id. To be “compelling,” the movant must demonstrate that “more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt[.]” Id. Second, the movant must advance “a legitimate constitutional claim[.]” Id. at 540. The movant must satisfy both elements because “[i]t is the combination of the two claims-that [he] is likely innocent and that his conviction was likely the result of nonharmless constitutional error-that permits a habeas court to review the petition notwithstanding procedural obstacles in order to avoid a miscarriage of justice.” Id.; see DeJesus v. United States, Nos. 10 Cr. 40 (JSR) & 14 Civ. 3773 (JSR) (JCF), 2014 WL 6790236, at *4 (S.D.N.Y. Dec. 1, 2014) (explaining that “to demonstrate actual innocence, a petitioner must establish ‘factual innocence, not mere legal insufficiency,' and ‘demonstrate that in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.'”) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)).
b. Application
The Second Circuit affirmed Encarnacion's conviction on February 16, 2016, see Encarnacion IV, 639 Fed.Appx. at 715, rendering the decision final 90 days later, on May 16, 2016. See Supr. Ct. R. 13(1), (3) (petition for certiorari must be filed within 90 days court of appeals' entry of judgment). Because Encarnacion's time to file a Section 2255 motion expired one year later, on May 16, 2017, see 28 U.S.C. § 2255(f)(1), but he did not file the Motion until February 10, 2020, (see ECF No. 1), it is time-barred. See Velasco v. United States, Nos. 06 Cr. 581 (JSR) & 10 Civ. 5059 (JSR) (FM), 2010 WL 5563844, at *4 (S.D.N.Y. Dec. 30, 2010) (recommending denial of Section 2255 motion filed nine months late), adopted by, 2021 WL 308408 (S.D.N.Y. Jan. 28, 2011); German v. United States, 209 F.Supp.2d 288, 292 (S.D.N.Y. 2002) (denying as untimely Section 2255 motion filed “over two months late”); Rodriguez v. United States, Nos. 98 Cr. 1443 (JSR) & 00 Civ. 7112 (JSR) (AJP), 2000 WL 1864038, at *1 (S.D.N.Y. Dec. 20, 2000) (recommending dismissal of Section 2255 motion filed thirteen months late).
Encarnacion acknowledges that the Motion is untimely, stating that he was “late on [filing] this 2255 motion because of [his] financial status.” (ECF No. 1 at 12). He also describes his “emotional state” as being in “a stand still” and notes that he was transferred to a new facility where “the law library is very limited [.]” (Id.) The circumstances he describes, however, are among “the many challenges associated with life in prison [that] do not, on their own, establish grounds for equitable tolling.” Rudge, 2019 WL 4867828, at *2. As courts in this District have recognized, transfers between districts and limited access to legal papers and law libraries “are common to many prisoners during their incarceration [and] do not constitute the type of ‘extraordinary circumstances' that would warrant equitable tolling of the statute of limitations.” Acosta v. United States, Nos. 09 Cr. 1126 (SAS) & 11 Civ. 8753 (SAS), 2012 WL 206119, at *2 (S.D.N.Y. Jan. 23, 2012) (holding that “equitable tolling [did not] save [] untimely section 2255 motion”); see Saldana v. Artuz, No. 99 Civ. 5089 (DC), 2000 WL 1346855, at *2 (S.D.N.Y. Sept. 19, 2000) (“Hardships associated with prison conditions do not constitute the rare circumstances under which equitable tolling is granted.”). Furthermore, during the period for which he requests equitable tolling, Encarnacion filed other motions with the Court, including his request for relief under the FSA, and his motion for a sentence reduction, (Cr. ECF Nos. 192; 202), thus undermining the credibility of his assertion that his emotional state, transfer, and limited library access prevented him from filing the Motion. See Yong Suk Howang v. United States, Nos. 11 Cr. 690 (LTS) & 17 Civ. 6254 (LTS) (BCM), 2019 WL 1994264, at *9 (S.D.N.Y. Apr. 19, 2019) (finding that equitable tolling was not warranted where petitioner filed another petition during the period she claimed that “extraordinary circumstances” prevented her from filing timely Section 2255 motion).
To the extent the Motion can be interpreted to suggest that the actual innocence exception to the statute of limitations should apply, the Court finds that any assertion of Encarnacion's innocence would neither be credible nor compelling. First, the Motion does not describe any “new reliable evidence . . . that was not presented at trial.” Rivas, 687 F.3d at 541. Rather, Encarnacion, primarily in the Reply, reviews the evidence presented at trial and disputes its sufficiency. (See, e.g., ECF No. 12 at 5 (arguing that “[t]here was no evidence to establish an agreement” with “any member of the marijuana conspiracy”); id. at 6-8 (summarizing Goris's testimony and arguing that there was no “proof of what the substance” was in the packages Encarnacion placed in the sleeper compartment of his FedEx truck); id. at 14 (arguing that “the evidence was insufficient to establish that [he] wrote the anonymous letter or delivered it to [Goris's mother's] door”)). Because Encarnacion has not supplied any new, let alone reliable, evidence, he has not satisfied the first prong of an actual innocence claim. See Yong Suk Howang, 2019 WL 1994264, at *10 (rejecting actual innocence claim based on facts that were available at the time of petitioner's guilty plea).
Second, Encarnacion's actual innocence claim is not compelling, but instead represents a “self-serving denial of guilt [that] is not credible or compelling proof of innocence. It is the sort of conclusory claim that does not satisfy the actual innocence standard.” Ramos v. Cunningham, No. 15 Civ. 3755 (PAE) (GWG), 2016 WL 4467559, at *4 (S.D.N.Y. Aug. 22, 2016). Furthermore,
Judge Rakoff reviewed and rejected virtually identical arguments in denying Encarnacion's motion for judgment of acquittal, see Encarnacion III, 2015 WL 756702, as did the Second Circuit in affirming the Judgment. See Encarnacion IV, 639 Fed.Appx. at 714-15 (rejecting Encarnacion's arguments that “there was insufficient evidence to convict him on any of the charges lodged against him”). Therefore, even if Encarnacion's ineffective assistance claim were a “legitimate constitutional claim”-a question I do not reach but as to which I am skeptical given the decisions by Judge Rakoff and the Second Circuit-he would still not be entitled to an equitable exception to the statute of limitations based on actual innocence.
Accordingly, I respectfully recommend that the Motion be DENIED as untimely.
2. Ineffective Assistance Claim
Because I conclude that Encarnacion's Motion is untimely, “‘I do not reach the merits of the constitutional claims alleged in'” the Motion. Yong Suk Howang, 2019 WL 1994264, at *10 (quoting Barrientos v. Lee, No. 14 Civ. 3207 (LTS) (JCF), 2015 WL 3767238, at *3 (S.D.N.Y. June 17, 2015)); see German, 209 F.Supp.2d at 289 (denying Section 2255 motion as untimely without reaching alternative merits arguments); Rodriguez, 2000 WL 1864038, at *1 n.1 (declining to address alternative grounds for denying Section 2255 motion that was untimely); see also Clarke v. United States, No. 13 Civ. 126 (LAP), 2019 WL 422611, at *2 (S.D.N.Y. Feb. 4, 2019) (collecting cases in which courts did not reach the merits of claims dismissed as untimely).
IV. CONCLUSION
For the foregoing reasons, I recommend that the Motion be DENIED as untimely. I further recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), as Encarnacion has not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Respondent shall promptly serve a copy of this Report and Recommendation on Encarnacion, and file proof of service on the docket. The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the address below.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Rakoff.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Encarnacion does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from Respondent's counsel. See Local Civ. R. 7.2.