Opinion
02 Cr. 1060 (LAP), 09 Civ. 1498 (LAP).
July 13, 2010
MEMORANDUM AND ORDER
On February 19, 2009, Defendant Ruben Archuleta filed a motion (the "Motion to Vacate") to correct, vacate, and/or set aside his sentence pursuant to Title 28, United States Code, Section 2255 ("Section 2255"). He subsequently filed what he styled a Motion for Leave to Supplement Original Memorandum in Support of 28 U.S.C. § 2255 Motion ("Motion for Leave") on July 2, 2009. Both motions are denied in their entirety.
BACKGROUND
Ruben Archuleta was charged with conspiring to distribute and possess with intent to distribute five kilograms and more of mixtures and substances containing a detectable mixture of cocaine. (See Indictment dated July 26, 2005 (the "Indictment" or "Ind.") [dkt. no. 79].) He was convicted in a jury trial on August 18, 2005. (See Minute Entry dated August 18, 2005.) Archuleta appealed this Court's evidentiary rulings, but his appeal was denied by the Court of Appeals on January 23, 2008. (See dkt. no. 106.)
In his Motion to Vacate, Archuleta claims that his confrontation rights were violated because he was not allowed to cross-examine a co-conspirator whose statements were introduced at trial and that his counsel was ineffective for failing to object to that violation of his confrontation rights. (Defendant's Memorandum in Support of 28 U.S.C. § 2255 Motion ("Def. Mem.") at 6.) He further claims that his appellate counsel was ineffective for failing to raise the issue of the Court's determination of his offense level. (Id. at 10.) In his Motion for Leave, Archuleta asserts that his trial counsel was ineffective because he failed to object to the introduction of incriminating statements Archuleta made after his arrest. (See generally Motion for Leave.)
DISCUSSION
Archuleta's Confrontation Rights Were Not Violated.
Archuleta's claim that his confrontation rights were violated is barred because he failed to raise it on direct appeal. See Riascos-Prado v. United States, 66 F.3d 30, 34 (2d Cir. 1995). Even if his claim were not procedurally barred, Archuleta's confrontation rights were not violated. Archuleta argues that the Government introduced testimonial statements made by a co-conspirator, Nelson Veras, through a cooperating witness at trial and that his inability to cross-examine Veras was a violation of his rights. Archuleta is correct, as far as it goes, that he would have a right to cross-examine a declarant whose testimonial statements were introduced at trial. See Crawford v. Washington, 541 U.S. 36, 62 (2004). The Crawford Court, however, expressly noted that statements made in furtherance of the conspiracy are "by their nature not testimonial" and thus not subject to the procedural guarantee of cross-examination. Id. at 56; accord United States v. Stewart, 433 F.3d 273, 291-92 (2d Cir. 2006). All statements attributed to Veras were plainly in furtherance of the conspiracy. (See Gov't Mem. at 4-6 (summarizing Veras's statements).) Archuleta thus had no constitutional right to cross-examine Veras.
Archuleta also suggests that his counsel was ineffective for failing to object to the alleged violation of his confrontation rights. (Def. Mem. at 6.) A claim for ineffective assistance of counsel is analyzed under the framework of Strickland v. Washington, 466 U.S. 668 (1984). A defendant must show that 1) his counsel's performance fell below "an objective standard of reasonableness" and 2) prove that he was prejudiced by the deficiency by showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." Id. at 693-94. Because Archuleta's confrontation rights were not violated by the introduction of Veras's statements, the lack of objection to those statements is objectively reasonable and cannot serve as the basis for a claim of ineffective assistance.
Archuleta's Appellate Counsel Was Not Ineffective.
Nor was Archuleta's counsel ineffective for his alleged failure to appeal this Court's determination of his drug quantities and resulting offense level. Archuleta appears to argue that his appellate counsel should have appealed this Court's assessment of his offense level at 34. (Def. Mem. at 10-13.) That assessment, however, was urged by Archuleta's counsel in response to the Government's attempt to set Archuleta's offense level at 40. (See Archuleta's Sentencing Memorandum dated June 13, 2006 (attached as Exhibit C to Gov't Mem.) at 5.) This Court agreed with Archuleta's counsel and set the base offense level at 32 with a two-level enhancement for Archuleta's obstruction of justice in submitting a perjurious affidavit, to which Archuleta's counsel also did not object. (Id. at 5.) In his sentencing memorandum, Archuleta also requested that he be sentenced to the statutory minimum of 240 months. (Id. at 5.) The Court instead sentenced Archuleta to a term of incarceration of 264 months. (See Statement of Reasons (attached as Exhibit D to Gov't Mem.) at 1.) This term was within the United States Sentencing Guidelines of 235 to 293 months. (See Ex. C at 5.) Because the Court adopted his analysis of the proper offense level, Archuleta's counsel had nothing from which to appeal regarding the Court's determination of his base offense level. Counsel cannot be considered to have fallen below an objective standard of reasonableness for failing to appeal from a favorable determination. Moreover, Archuleta offers no reason, and none is apparent, why his counsel could be considered ineffective for failing to object to a sentence within the Guidelines. This Court considered all of the relevant factors under 18 U.S.C. 3553(a). The quantity of drugs with which Archuleta was involved, as well as his obstruction of justice, make his sentence eminently reasonable and would render any appeal groundless. Cf. United States v. Cavera, 550 F.3d 180, 188 n. 5 (2008) (en banc) (calling for a "particularly deferential form of abuse-of-discretion review" in evaluating a sentence's reasonableness). Because Archuleta's confrontation rights were not violated and his appellate counsel was not ineffective, his Motion to Vacate must be denied.
The Motion For Leave Is Time Barred.
Archuleta's Motion for Leave, in which he seeks to add a claim for relief based upon his counsel's alleged failure to challenge his post-arrest detention and the question of whether Archuleta was given Miranda warnings, is denied as untimely. Section 2255 requires that a motion making a collateral attack be made within one year of the date upon which a conviction becomes final, unless the movant can show a governmental impediment to such a motion, a newly-recognized right or rule of law, or newly-discovered facts which could not have been discovered through the exercise of due diligence. See 28 U.S.C. § 2255(f). Archuleta's conviction became final on April 22, 2008, when the time expired for him to petition the Supreme Court for a writ of certiorari contesting the determination of his appeal.See Clay v. United States, 537 U.S. 522, 525 (2003). He has shown no governmental impediment to such a motion, a newly-recognized right or rule of law, or newly-discovered facts which could not have been discovered through the exercise of due diligence.
Nor can Archuleta couch his motion as one for mere "amendment." Amendments pursuant to Rule 15(c)(2) of the Federal Rules of Civil Procedure depend on a common core of operative facts. See Fed.R.Civ.P. 15(c)(2). "An amended habeas petition . . . does not relate back (and thereby escape [the] one-year time limit) when it asserts a new ground for relief supported by facts that differ both in time and type from those the original pleading set forth." Mayle v. Felix, 545 U.S. 644, 650 (2005). A new claim does not relate back to an original claim simply because it addresses the same conviction and sentence. Id. at 662-64.
In response to the Government's opposition, Archuleta filed what he styled as a "Motion for Judicial Notice" [dkt. no. 120]. In that submission, which the Court construes as a reply memorandum in support of his Motion for Leave, Archuleta advances two arguments. First, he claims that his submission is not untimely because he filed a motion with the Court of Appeals seeking rehearing en banc of his appeal. Second, he asserts that because he has diligently attempted to obtain information from government agencies regarding the circumstances of his arrest and detention, he is entitled to equitable tolling of the one-year time limit set by Section 2255.
Neither argument provides support to the Motion for Leave. First, Archuleta provides no factual basis for his contention that he filed a petition for rehearing en banc. The official docket of the Court of Appeals shows no petition by Archuleta seeking rehearing. (See Exhibit A to the Government's Memorandum in Opposition to Defendant's Motion to Take Judicial Notice.) Nor, as the Government notes, did Archuleta include a copy of the alleged petition for rehearing en banc in the voluminous materials he has submitted in support of his motions. Without any factual support for the contention that his appeal was still pending when he filed his Motion for Leave, Archuleta cannot escape the one-year time limit on that basis.
Nor does Archuleta's demand for equitable tolling remedy his untimeliness. To warrant equitable tolling, however, a petitioner must show "'(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.'" Diaz v. Kelly, 515 F.3d 149, 153 (2d Cir. 2008) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Regardless of the diligence of Archuleta's pursuit of his rights, he has put forth no evidence of an "extraordinary circumstance" that prevented him from making a timely filing. As the District of Connecticut has noted, the Court of Appeals has rarely approved of equitable tolling. "[E]xceptions involve a corrections officer's intentional confiscation of a prisoner's petition shortly before the filing deadline; an attorney's egregious failure to file a habeas petition on a prisoner's behalf despite explicit directions from his client to do so; and a state appellate court's failure to inform a prisoner that leave to appeal was denied." Rivera v. United States, 2010 WL 2351477, at *3 (D. Conn. 2010) (internal citations omitted).
Archuleta's claims regarding the conditions in which he was held following his arrest and the question of whether he received his Miranda warnings are untimely. The claims in the Motion for Leave address events that occurred at the time of his arrest, which are insufficiently connected both in time and type to relate back to the events that occurred at the time of his trial and sentencing of which he complains in his original Motion. In addition, his arguments for equitable tolling are without merit. Archuleta's claims regarding his post-arrest detention and statements thus fall beyond the one-year limit set by Section 2255 and are therefore barred. The Motion for Leave is denied.
CONCLUSION
Archuleta's motion to correct, vacate and/or set aside his sentence and conviction [09 Civ. 1498, dkt. no. 1] is denied. Archuleta's motion for leave to supplement his original Section 2255 motion [02 Cr. 1060, dkt. no. 118] is denied. The motion for judicial notice [02 Cr. 1060, dkt. no. 120] is denied as moot. Archuleta has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see generally United States v. Perez, 129 F.3d 255, 259-60 (2nd Cir. 1997). Accordingly, no certificate of appealability will issue in this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).
SO ORDERED.