Opinion
02 Civ. 1187 (SAS)
August 12, 2002
John Jairo Jimenez, Ayer, MA Petitioner (Pro Se).
Samuel G. Williamson, Assistant United States Attorney New York, New York, For Respondent.
MEMORANDUM DECISION AND ORDER
John Jairo Jimenez, proceeding pro se, has moved to vacate, set aside or correct a 57-month sentence imposed by this Court on June 19, 1998. The motion was brought pursuant to section 2255 of Title 28 of the United States Code (" 28 U.S.C. § 2255") on the ground the petitioner received ineffective assistance of counsel. Respondent seeks to dismiss the motion on the ground that it is time-barred. See 6/7/02 Pre-Answer Motion to Dismiss at 1. For the following reasons, respondent's motion is granted.
I. FACTS
Unless otherwise noted, the following facts are taken from the June 27, 2002 letter from Assistant United States Attorney ("AUSA") Samuel G. Williamson to this Court. On January 7, 1999, John Jairo Jimenez pled guilty to a one-count Indictment charging him with illegally re-entering the United States after having been deported subsequent to a conviction for an aggravated felony. At the time the Government lodged the illegal re-entry charge against Jimenez on June 12, 1997, he was serving a New York State sentence for violation of lifetime parole, imposed following a narcotics conviction in 1992. Jimenez's March 27, 1997 arrest by Westchester County Parkway Police on charges of possession of forged instruments triggered the parole violation. Jimenez entered his guilty plea to the federal charge pursuant to a written plea agreement with the United States Attorney's Office. On June 19, 1998, Jimenez was sentenced to 57 months incarceration and three years supervised release.
On October 26, 1999, Jimenez filed a motion under 28 U.S.C. § 2255 (the "Initial Petition") in this Court. In an Order dated January 12, 2000, this Court dismissed the Initial Petition. Although Jimenez brought the Initial Petition under 28 U.S.C. § 2255, which addresses challenges to the legality of the sentence, this Court treated it as if made under 28 U.S.C. § 2241, which addresses challenges to the calculation of the sentence by the Bureau of Prisons ("B.O.P."). See Roccisano v. Menifee, 293 F.3d 51, 57 (2d Cir. 2002) ("Under § 2241, a prisoner may challenge the execution of [his] sentence, such as calculations by the Bureau of Prisons of the credit to be given for other periods of detention, or decisions to deny parole, or conditions of confinement. Section 2255, on the other hand, is the proper vehicle when the federal prisoner seeks to challenge the legality of the imposition of sentence by a court.") (internal quotation marks and citations omitted, emphasis and alterations in original). This Court denied the Initial Petition as having been filed prior to exhaustion of available administrative remedies. The Initial Petition was also denied on the ground that Jimenez should have filed in the District of Massachusetts, where he was incarcerated.
Jimenez has since exhausted his administrative remedies. See 3/20/00, 5/23/00 and 8/22/00 B.O.P. Denials of Appeal. He has since brought a section 2241 petition in the District of Massachusetts, which was denied on June 8, 2001. See Jimenez v. Warden, 147 F. Supp.2d 24, 29 (D. Mass. 2001). He has also unsuccessfully petitioned this Court for a recommendation to the B.O.P. granting nunc pro tunc designation. See 6/28/01 Jimenez Letter Motion. This Court denied that request on August 10, 2001. On January 25, 2002, Jimenez once again moved for relief in this Court (the "Instant Petition").
Petitioner's section 2255 motion is not a successive petition subject to the rules found in 28 U.S.C. § 2244(b) as his section 2241 petition challenged the execution of his sentence while the Instant Petition challenges the imposition of his sentence. See Chambers v. United States, 106 F.3d 472, 474 (2d Cir. 1997) (holding that "a petition asserting a claim to relief available under 28 U.S.C. § 2255 is not a `second or successive' application where the prior petition(s) sought relief available only under 28 U.S.C. § 2241").
Nor can petitioner's section 2255 motion be seen as a motion to amend the section 2241 petition, adjudication of which was final on June 8, 2001, given petitioner's failure to appeal the district court's decision. Thus, the rule as stated in China v. United States, No. 00-3765, 2002 WL 1765917, at *3 (2d Cir. July 31, 2002), does not apply here (holding that "when a § 2255 motion is filed before adjudication of an initial § 2255 motion is complete, the district court should construe the second § 2255 motion as a motion to amend the pending § 2255 motion").
Although Jimenez was initially sentenced to a four-month term of imprisonment for the state parole violation, the Government lodged a federal warrant on the illegal re-entry charge before his estimated release date and, in fact, his release from New York State custody was not perfected until February 11, 1999. The B.O.P. designated Jimenez to serve his federal sentence at F.M.C. Devens Correctional Facility in Massachusetts, where he arrived on March 4, 1999. The B.O.P. calculated his sentence as beginning on February 11, 1999, the day he was released from state custody.
After arriving at F.M.C. Devens, Jimenez sent correspondence to this Court regarding the B.O.P.'s calculation of his sentence and a court conference was held on May 27, 1999. During this conference, Jimenez, who was represented by counsel, alerted the Court that he believed that the B.O.P. had incorrectly calculated the start date of his federal sentence. Thereafter, petitioner filed the Initial Petition in this Court and a section 2241 petition in the District of Massachusetts, both of which were denied. Concerned over the timeliness of the Instant Petition, this Court directed Jimenez to show cause why the Instant Petition, dated January 22, 2002, should not be dismissed on timeliness grounds. In response to the Court's directive, Jimenez filed an Affirmation dated May 14, 2002. The arguments offered by Jimenez are without merit, and his motion is dismissed as untimely.
II. DISCUSSION
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. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998). 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:
(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. The Government argues that the first date applies in petitioner's case; under this analysis, petitioner's conviction became final no later than June 30, 1998, the day after his time to appeal expired. See Wims v. United States, 225 F.3d 186, 188 (2d Cir. 2000). Therefore, petitioner had until June 30, 1999 — one year later — to file for habeas relief. Yet, petitioner did not file the Instant Petition until January 25, 2002.
The filing of a section 2241 does not operate to toll the statute of limitations applicable to a section 2255 motion. See 28 U.S.C. § 2244(d)(2) ("The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.") (emphasis added). See also Reynosa v. Hood, No. 00-35984, 2002 WL 89690 (9th Cir. Jan. 14, 2002) (holding that dismissal of section 2241 petition was proper even though petitioner could no longer file a timely section 2255 motion).
The day in which petitioner delivered the Instant Petition to prison officials is deemed the date of filing. See Noble v. Kelly, 246 F.3d 93, 98 (2d Cir. 2001) (holding that the district court properly extended the prison mailbox rule to petitions for writs of habeas corpus).
Petitioner unsuccessfully argues that the date on which the judgment of conviction became final is not the appropriate trigger date, arguing instead that the limitations period should begin on "`the date on which the facts supporting the claim. presented could have been discovered through the exercise of due diligence.'" Movant's Affirmation ("Mov. Aff.") at 2 (quoting 28 U.S.C. § 2255). Jimenez argues that the facts he alleges in the Instant Petition demonstrate ineffective assistance of counsel. Due to such ineffective assistance, petitioner argues, he did not realize that he did not receive a concurrent sentence or credit for time served "until the District Court upheld the [B.O.P.]'s sentence computation in their [sic] decision of June 8, 2001." Mov. Aff. at 2. See also Jimenez v. Warden, 147 F. Supp.2d at 24 (upholding the B.O.P.'s sentence computation).
But the facts concerning the quality of representation Jimenez received were obvious earlier than the June 8, 2001 decision. Petitioner admits as much himself:
Petitioner contends that he was the recipient of ineffective assistance of counsel during the sentencing phase of his original criminal case. . . . Prior to sentencing, Petitioner was concerned with his New York state sentence of lifetime parole and how it might impact his federal sentence. He repeatedly conveyed these concerns to his counsel.
Id. (emphasis added). Jimenez claims that the Court's comments during sentencing "implying concurrency" made him believe "that his sentence had begun running on June 12, 1997." Petitioner's Reply to Government's Response to Mov. Aff. at 2. Therefore, Jimenez argues, there would have been no need for him to exercise diligence in clarifying the details of his sentence calculation until "almost 10 months after [his] sentencing date, when he had finally been designated to F.M.C. Devens and . . . discovered the disparity in trigger dates for the commencement of his sentence." Mov. Aff. at 4-5. At the latest, then, Jimenez learned of the facts supporting his claim of ineffective assistance of counsel when he was transferred to F.M.C. Devens on March 4, 1999, rather than when the district court upheld the B.O.P.'s sentence calculation.
Even if the limitations period were to begin shortly after Jimenez was designated to F.M.C. Devens, the Instant Petition, delivered to prison officials on January 25, 2002, would still be untimely. Jimenez claims that he could not have discovered the discrepancy until some time shortly after March 4, 1999, when he arrived at the F.M.C. Devens Correctional Facility, but this is 1,059 days before his January 2002 motion — far more than a year. Jiminez's motion was delayed while he waited for decisions regarding his petitions to the court and B.O.P., but even if those delays qualified as the "rare and exceptional circumstance[s]" required for equitable tolling, excluding those 483 days from the 1,059 days between March 4, 1999 and January 25, 2002, still leaves 576 days. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (holding that "proper calculation of Section 2244(d)(2)'s tolling provision excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run"). Therefore, the Instant Petition is untimely even under petitioner's calculations.
Jimenez's Instant Petition was arguably delayed by his Initial Petition (filed 10/26/99-decided 1/12/00, 79 days), his pursuit of administrative remedies with the B.O.P. (2/29/00-8/8/00, 162 days) and his section 2241 petition (10/10/00-6/8/01, 242 days).
II. CONCLUSION
For the reasons discussed above, the motion for a writ of habeas corpus is denied as untimely. The Clerk of the Court is directed to close this case.
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, this Court denies a certificate of appealability and certifies that any appeal would not be taken in good faith within the meaning of 28 U.S.C. § 1915.