Summary
rejecting petitioner's claim that the fact that he "[had to] rely on inmate jail house lawyers" and the fact that his attempts to obtain legal advice from fellow inmates "ha[d] not been fruitful" qualified as extraordinary circumstances
Summary of this case from Crespo v. Commissioner of CorrectionOpinion
00-CV-0862 (ILG).
October 25, 2000.
Chi Man Chan, pro se, for Petitioner, Cumberland, Maryland.
Michelle J. Delong, Esq., Assistant U.S. Attorney, Brooklyn, New York.
MEMORANDUM AND ORDER
SUMMARY
Petitioner Chi Man Chan ("Chan"), proceeding pro se, has filed this motion pursuant to 28 U.S.C. § 2255, seeking an order vacating or reducing his sentence on the grounds that: (1) defense counsel failed to request a downward departure in his sentence because of circumstances lying outside of the "heartland" factors considered by the Sentencing Guidelines; (2) venue was improper in the Eastern District of New York; and (3) the crime to which he pleaded did not have a "substantial effect" on interstate commerce.
28 U.S.C. § 2255 provides in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
BACKGROUND
On November 15, 1995, Petitioner pled guilty to one count of racketeering in violation of 18 U.S.C. § 1962(c). Petitioner entered his plea pursuant to an agreement under Fed.R.Crim.P. 11(e)(1)(C) which permits the government and a defendant to agree that "a specific sentence is the appropriate disposition of the case." In this case, Petitioner and the United States agreed that a "specific sentence of 20 years [was] the appropriate disposition of the case." (Plea Agreement, ¶ 2) Additionally, Petitioner agreed not to file an appeal should the Court sentence him to twenty years or less. (Id. at ¶ 3)
During the plea allocution, Petitioner admitted the following: the Ghost Shadows gang existed; its purpose was to make money for the members of the gang by committing a variety of crimes; the Ghost Shadows had a structure that included a leader, street leaders and members; and the Ghost Shadows was a continuously functioning gang. (Plea Allocution Tr. at 21-23) Petitioner also admitted that he was a member of the Ghost Shadows and participated in the affairs and the business of the gang. (Id. at 23) Finally, Petitioner admitted that as part of a pattern of racketeering activity, on or about February 9, 1992, he and others had both knowingly and intentionally murdered a member of the rival Tung On gang and knowingly and intentionally conspired to extort Asian restaurant owners and illegal businesses by demanding protection money. (Id. at 23-25)
On September 18, 1996, Petitioner appeared for sentencing. At that time, the Court determined that the applicable sentencing range for the racketeering offense was 360 months to life. (Sentencing Tr. at 3) The Court further found the downward departure from the guidelines, as embodied in the plea agreement, justifiable and consequently accepted the terms of the plea agreement. (Id.) Thus, the Court sentenced Chan to twenty years imprisonment, five years of supervised release, and imposed a $50 special assessment. (Id.) Chan has not appealed his conviction or sentence.
DISCUSSION
I. Petitioner's Motion is Untimely
The Antiterrorism and Effective Death Penalty Act of 1996, codified in part at 28 U.S.C. § 2255 ("AEDPA"), imposes a one-year statute of limitations on § 2255 petitions filed after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 324 (1997). Here, Chan's conviction became final on September 18, 1996. Thus, the one-year time period for filing a § 2255 petition expired on September 18, 1997. Chan waited until February 2, 2000 to file this petition.
Petitioner concedes that he was late in filing his petition, but argues that equitable tolling applies to this case. The Second Circuit has recently adopted the majority view that the AEDPA's one-year limitation period is subject to equitable tolling. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000),cert. denied, — S.Ct. —, No. 99-9695, 2000 WL 719571 (Oct. 2, 2000) (finding equitable tolling to apply to one year statute of limitations contained in 28 U.S.C. § 2244(d)). See also Cotoia v. United States, No. 99 CIV 12283, 2000 WL 340781, at *1 (S.D.N.Y. March 31, 2000) (applying McGinnis to petitioner proceeding under 28 U.S.C. § 2255). The McGinnis court, however, ruled that equitable tolling only applies where a petitioner can show that "extraordinary circumstances prevented [petitioner] from filing his petition on time." McGinnis, 208 F.3d at 17. Furthermore, a petitioner "seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll." Id. In this case, Petitioner fails to demonstrate either.
Petitioner contends that equitable tolling applies to him because he "must rely on inmate jail house lawyers," and his repeated attempts to obtain legal advice from these "lawyers" have not been fruitful because "he is Chinese and does not share the culture." (Pet. Memo. at 2) Petitioner further asserts that he has not waived his right to file a timely § 2255 motion because he "did not know that the amendments of the law applied to him because he was never made aware of the amendments." (Id.) The "circumstances" he alleges can hardly be regarded as "extraordinary" and do not warrant the invocation of the principle of equitable tolling.
II. Petitioner Waived His Right To Appeal and To Collateral Attack
By agreeing not to appeal his sentence if the Court accepted his plea agreement, Petitioner also waived his right to collaterally attack it. His plea agreement specifically prohibited him from filing an appeal in the event that a sentence of twenty years or less was imposed. (Plea Agreement, ¶ 3) His waiver was knowing and voluntary. (Plea Allocution Tr. at 18-19) A defendant's knowing and voluntary waiver of the right to appeal a sentence within an agreed upon range is enforceable.United States v. DeJesus, 219 F.3d 117, 121 (2d Cir. 2000).
Waiver of one's right to appeal necessarily includes a wavier of a right to collaterally attack his conviction and sentence.See United States. v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995) (vacating a district court's grant of relief under § 2255 and stating "[w]hatever linguistic distinction may be made between an 'appeal' and a § 2255 petition, we are loathe to countenance so obvious a circumvention of a plea agreement." (citations omitted). See also, Trujillo v. United States, Nos. 92 CV 6791 (PKL), 91 CR 575(PKL), 1993 WL 227701, at *3 (S.D.N.Y. June 21, 1993) ("Without alleging a constitutional or jurisdictional violation, it is an anathema to allow one who has voluntarily waived his right to appeal to attack the sentence collaterally."), aff'd mem., 33 F.3d 49 (2d Cir. 1994).
Petitioner argues that the absence in the plea agreement of an explicit waiver of his right to collaterally attack his sentence manifests an intention not to waive that right, Pipitone notwithstanding. Pipitone cannot be so easily ignored. That Court rejected that petitioner's urging not significantly dissimilar to the urging here, acknowledging the "legitimate interests in the integrity of the plea bargaining process and in the finality of sentences thus imposed." Pipitone, 67 F.3d at 39.
CONCLUSION
For all of the foregoing reasons, Chan's petition is denied.
SO ORDERED.