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finding that a 46-month delay in filing an appeal did not constitute reasonable diligence, even taking into account a petitioner's pro se status and the realities of prison life
Summary of this case from Marte v. BrownOpinion
02 Civ. 2733 (SAS)
November 6, 2002
Petitioner (Pro Se): Adam Gonzalez Prisoner No. 40464-054 Fort Dix, New Jersey.
For Respondent: Jonathan S. Abernathy, Assistant United States Attorney, Office of United States Attorney for the Southern District of New York, New York, New York.
OPINION AND ORDER
On March 30, 2002, Adam Gonzalez, proceeding pro se, moved to vacate, set aside or correct a 70-month sentence imposed by this Court on April 27, 1998. The motion, brought pursuant to section 2255 of Title 28, United States Code ("section 2255") is based on two grounds. First, petitioner alleges that his guilty plea was not knowing and intelligent and therefore resulted in a violation of his due process rights under the Fifth Amendment to the United States Constitution. Second, petitioner alleges that he received ineffective assistance of counsel. Respondent seeks to dismiss the motion on the ground that it is time-barred and is otherwise without merit. See Memorandum of Law in Opposition to Adam Gonzalez's Motion Pursuant to 28 U.S.C. § 2255 ("Opp. Mem.") at 1, 7, 12, 25 and 26.
I. BACKGROUND
On January 23, 1998, Gonzalez pled guilty to one count of conspiring to distribute five kilograms of cocaine, a violation of section 846 of Title 21, United States Code. 1/23/98 Transcript of Plea Allocution ("Plea"). Gonzalez was sentenced on April 27, 1998. See 4/27/98 Transcript of Sentencing ("Sentencing").
The Government agreed to dismiss a second charge of possession with intent to distribute cocaine, a violation of section 841 of Title 21, United States Code.
Pursuant to the Federal Sentencing guidelines, the base offense level for conspiracy to distribute more than 5 kilograms but less than 15 kilograms of cocaine is 32, which mandates a minimum of 121 months in custody and a minimum term of five years of supervised release. See Sentencing at 3, 10. The maximum penalty for this offense is life imprisonment. See Plea at 3. The offense level was decreased by two levels, to 30, because Gonzalez satisfied the so-called "safety valve" conditions. See 18 U.S.C. § 3553 (f). The offense level was further reduced by three levels to 27, in recognition of Gonzalez's acceptance of responsibility. See Sentencing at 3. With no prior convictions, Gonzalez was in criminal history category I, and thus his guideline range was between 70 and 87 months in custody. Id. at 4. Although Gonzalez did not receive a section 5K1.1 letter from the Government, his willingness to cooperate was duly noted by this Court. Gonzalez was sentenced to 70 months incarceration and three years supervised release. Id. at 8-9.
Because petitioner was safety-valve eligible, he was released from the otherwise applicable 121-month statutory minimum sentence.
II. DISCUSSION
Section 105 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year statute of limitations on the filing of habeas corpus petitions. The limitations period begins to run from:
(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.
Gonzalez's motion, made several years after his conviction became final, must fall under one of the latter three provisions in order to avoid being time-barred. Petitioner relies on the third exception by basing his due process claim on principles articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi was decided on June 26, 2000. If applicable to petitioner's case, Apprendi would extend the deadline to file a section 2255 motion to June 26, 2001, one year after "the date on which the right asserted was initially recognized by the Supreme Court . . ." 28 U.S.C. § 2255. Because this petition was filed on March 20, 2002, it is time-barred even if Apprendi applies.
Gonzalez was convicted on April 27, 1998. His conviction became final ten business days later, on May 11, 1998, when his time to appeal expired. Therefore, if none of the exceptions apply, Gonzalez would have been required to file by May 11, 1999. See Opp. Mem. at 8.
A. Petitioner's Apprendi Claim Is Invalid
In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490.
Relying on Apprendi's holding, Gonzalez asserts that his plea was not knowing and intelligent because he was not told that the Government would have to prove beyond a reasonable doubt the type and quantity of drugs involved in his case. Petition at 1-3. Gonzalez also claims that his plea was invalid because he was never told by his lawyer or the Court that he could be deported as a result of his conviction. Petition at 3.
Gonzalez's reliance on Apprendi is misplaced. Gonzalez correctly notes that drug quantity and type "must be treated as an element charged in the indictment submitted to a jury, and proved . . . beyond a reasonable doubt." See Petition at 2. This is an insufficient basis for an Apprendi claim, however. "The constitutional rule of Apprendi does not apply where the sentence imposed is not greater than the prescribed statutory maximum for the offense of conviction." See U.S. v. Thomas, 274 F.3d 655, 664 (2d Cir. 2001). In the instant case, petitioner was sentenced to 70 months incarceration and three years supervised release, a sentence not only below the statutory maximum, but at the "lowest end of the guideline."See Sentencing at 10. Accordingly, petitioner cannot complain that he did not know of a Supreme Court decision that would not have affected his sentence.
Even if Gonzalez's claim had merit, it would still be barred becauseApprendi does not apply retroactively. In Teague v. Lane, 489 U.S. 288 (1989), the Supreme Court held that a new rule of criminal procedure is not retroactive on collateral review unless it falls under one of following two exceptions:
(1) new rules which "place an entire category of primary conduct beyond the reach of the criminal law, or new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense;" and (2) "new watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding."Bilzerian v. United States, 127 F.3d 237, 241 (2d Cir. 1997) (quotingSawyer v. Smith, 497 U.S. 227, 241-42 (1990)).
The first Teague exception is plainly inapplicable because Apprendi does not decriminalize any conduct. Neither does the rule in Apprendi qualify as a "new watershed rule" under the second exception. It does not "alter our understanding of bedrock procedural elements." Teague, 489 U.S. at 311. Finally, an Apprendi violation does not substantially influence the "fundamental fairness of the trial" such that an "impermissibly large risk that the innocent will be convicted" is created. Id. at 312. See also Acevedo v. U.S., No. 00 Civ. 9696, 2002 WL 1453828, at *2 (S.D.N.Y. July 3, 2002) ("The new rule announced inApprendi, which merely shifts determination of the factors that enhances a maximum statutory penalty from the judge to the jury, does not meet [Teague's] standard").
Although the Second Circuit has not definitively ruled on the retroactivity of Apprendi, its ruling in Forbes v. U.S., 262 F.3d 143, 145 (2d Cir. 2001), strongly suggests a predisposition toward non-retroactivity. In Forbes, the Second Circuit observed thatApprendi "is not a new rule of constitutional law which has been made retroactive to cases on collateral review by the Supreme Court." Id. at 145. Because Apprendi is almost certainly not retroactive and is not applicable to Gonzalez's case in any event, petitioner cannot avail himself of a newly recognized constitutional right to avoid the otherwise applicable one-year limitations period.
Other circuits have held that Apprendi is not retroactive. See, e.g., U.S. v. Sanders, 247 F.3d 139 (4th Cir. 2001) Goode v. U.S., No. 01-1340, 2002 WL 987905, at *1 (6th Cir. May 10, 2002), Curtis v. U.S., 294 F.3d 841 (7th Cir. 2002), U.S. v. Esquiel-Vega, No. 01-16043, 2002 WL 1302173, at *1 (9th Cir. June 10, 2002), McCoy v. U.S., 266 F.3d 1245 (11th Cir. 2001).
B. Petitioner's Claim of Ineffective Assistance of Counsel Is Without Merit
Petitioner also asserts that his sentence should be vacated because he was denied effective assistance of counsel, a right guaranteed by the Sixth Amendment to the United States Constitution. See Petition at 3. This claim is based on three grounds: (1) that his attorney failed to file an appeal despite his request; (2) that his attorney failed to apprise him of "essential elements of the offense;" and (3) that his plea was invalid. See Petition at 4-5. While these claims are time-barred, I will discuss them briefly for the sake of completeness.
As to the latter ground, petitioner claims that "counsel never explained . . . the law and facts of the conspiracy charges against him and the consequences of his plea." Id. at 5. These assertions are plainly contradicted by the plea transcript, in which petitioner stated that he understood the charges against him and that he had an opportunity to discuss the indictment with his lawyer. Plea at 3, 5. Plea allocutions are generally presumed truthful unless a credible reason is presented to the contrary. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) ("Solemn declarations in open court carry a strong presumption of verity.");United States v. Gonzalez, 970 F.2d 1095, 1101 (2d Cir. 1992) (citingUnited States v. Bamvulas, 571 F.2d 525, 526 (10th Cir. 1978) (statements at plea allocution are conclusive absent credible reason "justifying departure from their apparent truth")). Petitioner offers no such evidence or reason here.
Petitioner also claims counsel never filed an appeal despite his instructions to do so. The Sixth Amendment's guaranty of assistance of counsel has long been held to encompass the right of appeal. See Rodriguez v. United States, 395 U.S. 327 (1969). Petitioner correctly cites the Tenth Circuit's opinion in U.S. v. Davis, which held that a defendant "is denied effective assistance of counsel if he asks his lawyer to perfect an appeal and the lawyer fails to do so . . ." 929 F.2d 554, 557 (10th Cir. 1991) (citing Rodriguez, 395 U.S. at 330).
In cases where petitioner asserts ineffective assistance of counsel, petitioner is generally required to show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms." Strickland v. Washington, 466 U.S. 668, 687-89, 693-94 (1984). In addition, petitioner must "affirmatively prove prejudice." Id. In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court held that the Strickland analysis was applicable to cases where no appeal was filed.
Prior to Flores-Ortega, Strickland was primarily applied where ineffective assistance of counsel was claimed because the appeal that was filed failed to include all relevant arguments. Where no appeal had been filed at all, most courts applied a per se rule finding ineffective assistance of counsel. In Flores-Ortega, the Court essentially adoptedStrickland's factual approach, rejecting the bright-line rule that failure to file a notice of appeal is per se ineffective assistance of counsel. See, e.g., Rodriguez, 395 U.S. 327.
Supreme Court jurisprudence on this issue has an interesting history. In Rodriguez, Justice Marshall chided the Ninth Circuit for giving indigent defendants an "additional hurdle to clear" by requiring them to specify the points they would raise were their right to appeal reinstated. Id. at 330. In 2000, when the Supreme Court in Flores-Ortega adopted the very holding it rejected in 1969, the Ninth Circuit was again criticized. Justice O'Connor, writing for the majority, criticized the Ninth and First Circuits for "fail[ing] to engage in the circumstance-specific reasonableness inquiry." Id. at 478.
Clearly, petitioner has not met his burden of showing prejudice. He presents nothing that would suggest any probability of success on appeal. His Apprendi claim is barred. His claims of an uninformed plea are plainly contradicted by the record. During his plea allocution, petitioner answered in the affirmative when asked whether he understood the charges against him. In addition, petitioner explained his crime in detail when prompted by the Magistrate Judge. Petitioner's appellate claims are meritless, and thus present no possible grounds for appeal. Petitioner has therefore suffered no prejudice resulting from his attorney's failure to appeal where the grounds that would have been asserted are utterly devoid of merit.
Although petitioner also complained that neither his attorney nor the Court informed him that he could be deported, he has not been deported and thus there is no prejudice in this regard. In any event, failure to notify a defendant of possible deportation does not constitute grounds for a section 2255 challenge. See generally United States v. Olvera, 954 F.2d 788, 793-94 (2d Cir. 1992) (deportation recommendation by the district court was collateral consequence of guilty plea and therefore reference to deportation by court during allocution was not required under Federal Rules of Criminal Procedure 11).
Moreover, petitioner has not exercised due diligence in monitoring the progress of his case. In Wims v. United States, 225 F.3d 186 (2d Cir. 2000), a pro se prisoner filed a section 2255 motion asserting that his lawyer failed to file an appeal on his behalf. The Second Circuit provided the following guidance:
The proper task in a case such as this one is to determine when a duly diligent person in petitioner's circumstances would have discovered that no appeal had been filed. After that date, petitioner was entitled to further delay . . . so long as he filed his petition within one year of the date in which the discovery would have been made in the exercise of due diligence.Id. at 190. The Wims court, taking into account the reality of conducting legal research in the prison system, held that filing five months after the expiration of the statute was "not so clearly unreasonable." Id. at 190-91. Consequently, the Wims court held that the prisoner had exercised due diligence. Id.
In this case, the delay between May 11, 1998, when petitioner's conviction became final, and March 20, 2002, when he filed his petition, amounts to over 46 months. Even taking into account petitioner's pro se status and the realities of prison life, I cannot in good conscience find that a 46-month delay comports with a reasonable concept of due diligence. Accordingly, petitioner's failure to file an appeal claim is time-barred and the motion must be dismissed.
III. CERTIFICATE OF APPEALABILITY
Finally, there is the question of whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2). "A `substantial showing' does not compel a petitioner to demonstrate that he would prevail on the merits, but merely that the issues involved in his case `are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.'" Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983) (internal quotation marks omitted) (emphasis and alteration in original)). In sum, "`[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.'" Rudenko v. Costello, 286 F.3d 51, 79 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Petitioner has made no such showing in this case. Accordingly, a certificate of appealability will not issue.
IV. CONCLUSION
For the foregoing reasons, petitioner's motion for a writ of habeas corpus is denied. The Clerk of the Court is directed to close this case.