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United States District Court, Southern District of New York

April 22, 2003


The opinion of the court was delivered by: Robert W. Sweet, United States District Judge


Petitioner pro se Osvaldo Ceferino Borbon-Vasquez, a/k/a Jose Borbon ("Borbon" or the "Petitioner") has moved pursuant to Title 28, U.S.C. § 2255, to vacate and set aside the conviction and sentence imposed upon him by this Court on May 25, 2002. The government has opposed the motion on the grounds that it is barred procedurally and by the statute of limitations. For the reasons set forth below, the motion is denied.

Prior Proceedings Borbon is a citizen of the Dominican Republic who first entered the United States in 1975. Between 1981 and 1994, Borbon was convicted of a number of crimes under New York State law, including burglary in the third degree, criminal possession of a weapon in the second degree, disorderly conduct, and attempted grand larceny in the fourth degree. On October 19, 1995, while serving a sentence for a subsequent offense, Borbon was released on parole and transferred to the custody of the Immigration and Naturalization Service ("INS") and on October 26, 1995, Borbon was deported to the Dominican Republic.

In November 1995, Borbon returned to the United States and resumed criminal activity. On May 12, 1997, he was convicted of attempted criminal sale of a controlled substance in the third degree and was sentenced to three to six years' imprisonment. On June 4, 1997, Borbon was interviewed by an agent of the INS and admitted that he had been deported in October 1995, had reentered the United States in November 1995 using his old "resident alien card," and had not obtained permission to return to the United States.

Indictment 99 Cr. 874 was filed on September 7, 1999, and in one count charged Borbon with illegally reentering the United States after having been deported following his conviction of an aggravated felony (the 1986 burglary conviction), in violation of Title 8, U.S.C. § 1326(a) and (b)(2).

On December 14, 1999, Borbon appeared before Magistrate Judge Frank Maas and pleaded guilty to the sole count of the Indictment, without a plea agreement. Prior to the proceeding, the government provided Borbon with a letter pursuant to the suggestion of the Second Circuit in United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991) setting forth the government's position regarding the application of the Sentencing Guidelines to Borbon's case, calculating Borbon's offense level to be 21, detailing Borbon's extensive criminal history, stating the government's belief that Borbon had 12 criminal history points and was therefore in criminal history category V and predicting that Borbon's sentencing range would be 70 to 87 months.

At the outset of the plea proceeding on December 14, Borbon's counsel noted that Borbon did not consider his 1986 burglary conviction to be an "aggravated felony" within the meaning of U.S.S.G. § 2L1.2, and that Borbon therefore intended to dispute the government's statement in the Pimentel letter that a 16-level enhancement was warranted under U.S.S.G. § 2L1.2(b)(1)(A). The Magistrate Judge then confirmed that Borbon understood that the parties had been discussing the nature of his prior conviction and what bearing, if any, it had on Borbon's decision to plead guilty and asked Borbon whether he understood that the issue of whether his prior conviction constituted an "aggravated felony" related only to sentencing, and Borbon affirmed that he did.

Borbon admitted that he had illegally returned to the United States without obtaining the permission of the Attorney General after having been deported on the basis of his 1986 burglary conviction.

Following Borbon's guilty plea, the United States Probation Office adopted the offense-level calculation set forth in the Pimentel letter. However, the Probation Office determined that Borbon was in criminal history category VI, not V, and that his resulting sentencing range was therefore 77 to 96 months under the Guidelines. The Probation Office recommended a sentence of 77 months.

Prior to sentencing, Borbon submitted two letters in which he raised the following three claims regarding his sentencing: (1) that his sentence should run concurrently with an undischarged state sentence, pursuant to U.S.S.G. § 5G1.3(c); (ii) that the Court should downwardly depart from the Guidelines based on purported inter-district disparities in the charging of illegal reentry offenses; and (iii) that even if the Court rejected his departure claim, he should be sentenced at the bottom of the applicable Guidelines range.*fn1 Borbon did not in his letters raise any issue with respect to the classification of his 1986 burglary conviction as an "aggravated felony."

On May 23, 2000, a sentencing opinion set forth the Court's findings and conclusions with respect to Borbon's sentence, adopting the Guidelines calculations set forth in the PSR and proposing the applicable sentencing range to be 77 to 96 months' imprisonment, and granting Borbon's requests for concurrent treatment and a sentence at the bottom of the range, subject to amendment at the sentencing hearing scheduled for May 25. United States v. Borbon-Vasquez, No. 99 Cr. 874, 200 U.S. Dist. LEXIS 7109 (S.D.N.Y. May 25, 2000).

At the sentencing hearing on May 25, Borbon made no argument with respect to the classification of his prior conviction as an "aggravated felon" and did not object to the 16-level enhancement and asked the Court to reduce by eight months the 77-month sentence, which the Court had indicated would be imposed, to account for the time Borbon had spent in federal custody on the illegal reentry charge, that is, eight months credited only to his state sentence, and which, as defense counsel argued, would have run concurrently with the federal sentence had Borbon been sentenced earlier.

Notwithstanding the government's objection, the Court deducted eight months from the bottom of the Guidelines range and imposed a sentence of 69 months' imprisonment to run concurrently with an undischarged state sentence, to be followed by three years' supervised release, and a mandatory special assessment of $100.

Borbon filed a timely notice of appeal on June 5, 2000. His sole claim on appeal was that the district court erred in applying the 16-level enhancement mandated by Sentencing Guidelines Section 2L1.2(b)(2) for aggravated felons convicted of illegal reentry under 8 U.S.C. § 1326. Specifically, he argued that his 1986 New York burglary conviction was not an aggravated felony under the relevant Guidelines.

By summary order filed December 13, 2002, the Second Circuit affirmed Borbon's sentence on grounds that: (1) Borbon had waived his argument concerning his burglary conviction by not raising it before the district court, and (ii) that the burglary conviction was in fact an aggravated felony under the relevant Guidelines.

Borbon did not seek United States Supreme Court review of the Second Circuit's decision.

On October 30, 2002, Borbon filed the instant motion pro se for collateral relief from his conviction and sentence, pursuant to Title 28, U.S.C. § 2255. In his motion, Borbon has argued that his guilty plea was not supported by a sufficient factual basis and that he received ineffective assistance of counsel. These claims appear to relate to the allegations in the Indictment that he was "found in" the United States. His first claim references this allegation and asserts that "[t]he indictment and the evidence cannot support the conduct of defendant pursuant to the statute [sic]," in support of his conclusion that the district court accepted his guilty plea absent sufficient factual basis. His ineffective assistance claim is based on the same contentions, basically that his counsel failed to advise him of the law with respect to the element of reentering or being "found in" the United States after deportation.

The government's opposition to the motion was filed on December 23, 2002, and no reply has been received from Borbon.

The Motion Is Time-Barred

Section 2255 of Title 28 of the U.S.C. provides the procedure for federal prisoners to collaterally attack their sentences "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." 28 U.S.C. § 2255. The sixth paragraph of § 2255 provides for a one-year statute of limitations, 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.
Id. ¶ 6.

Borbon's judgment of conviction became final on March 13, 2001, ninety days after judgment was entered by the Second Circuit when his time for filing a petition for certiorari for Supreme Court review expired. See Smith v. McGinnis, 208 F.3d 13, 15 n. 1 (2d Cir. 2000) (holding that for purposes of § 2255's statute of limitations, where a petitioner has appealed, his judgment of conviction becomes final upon expiration of the time in which he may seek a writ of certiorari from the United States Supreme Court); see also U.S.C. Sup. Ct. R. 13(1) (90 days to seek writ of certiorari from date of judgment). Borbon filed his § 2255 motion on October 30, 2002, long after the one-year limitations period had expired.

In addition, Borbon does not allege the existence of any government-caused "impediment" to the filing of his § 2255 motion.

Borbon does not make a claim based on any right that could be construed as "newly recognized by the Supreme Court." His ineffective-assistance-of-counsel claim is not based on a right "newly recognized" by the Supreme Court. The right to effective assistance of counsel was well-established long before Borbon's conviction. Zapata v. United States, Nos. 90 Cr. 943, 99 Civ. 00085, 2000 WL 1610801, at *1 (AGS) (S.D.N.Y. Oct. 27, 2000) ("The Supreme Court recognized a criminal defendant's right to the effective assistance of counsel before Zapata pled guilty in 1992.") (citing Strickland v. Washington, 466 U.S. 668 (1984)).

Borbon provides no non-frivolous explanation for the delay. In conclusory fashion, he states that his claims were not presented sooner because certain "records and materials" were not until now available to him. He does not, however, set forth any fact or set of facts of which he was not aware until now. Without explanation, he has attached various documents to his § 2255 motion, presumably those for which he waited and upon which he now relies. These documents, including his counsel's April 4, 2000 sentencing letter, the criminal complaint, and his sworn statement given to INS, were all made available to him prior to his sentencing.

Therefore, none of the four alternatives under § 2255 for the commencement of the statute of limitations operates to render Borbon's October 30, 2002 motion timely. For this reason, the motion is dismissed as time-barred.

Borbon's Claims Are Also Procedurally Barred

Borbon did not raise either of the claims in his § 2255 motion on his direct appeal.

A § 2255 motion is not designed as a substitute for an appeal, United States v. Frady, 456 U.S. 152, 165 (1982), and a defendant cannot use a § 2255 motion to relitigate questions that could have been raised on direct appeal but were not, Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995). See also United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir. 1992) (motion to vacate under § 2255 for governmental misconduct requires showing of cause for failure to raise claim on direct appeal). "[T]he failure to raise a claim on direct appeal is itself a default of normal appellate procedure," which results in a procedural default. Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992). See also United States ex rel. Regina v. LaVallee, 504 F.2d 580 (2d Cir. 1974), cert. denied, 420 U.S. 947 (1975).

Therefore, a litigant seeking to raise a new claim on a § 2255 motion may overcome the failure to raise that claim on appeal only by demonstrating both "cause" for the procedural default and "actual prejudice" resulting therefrom. See Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993). See also Bousley v. United States, 523 U.S. 614, 622-23 (1998); Frady, 456 U.S. at 162-166; Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993).

The Supreme Court has made clear that "cause" is measured by a stringent standard of diligence. See, e.g., Coleman v. Thompson, 501 U.S. 722, 753 (1991) ("[C]ause" is "something external to the petitioner" which "cannot be fairly attributed to him" and "[a]ttorney ignorance or inadvertence is not `cause.'"); Murray v. Carrier, 477 U.S. 478, 488 (1986) ("[C]ause" standard requires petitioner to demonstrate objectively that some factor constitutes cause such as "interference by officials."). Although a showing that the factual basis for a claim was not"available by reasonable diligence at trial" can establish cause, see Helmsley, 985 F.2d at 1205-08, "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default," Murray v. Carrier, 477 U.S. at 486-87; see also McCleskey v. Zant, 499 U.S. 467, 497-98 (1991) ("For cause to exist, . . . the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim").

The Second Circuit has held that a petitioner may only excuse an appellate omission, that is, show "cause," by successfully asserting a change in the law or ineffective assistance of appellate counsel. Underwood v. United States, 15 F.3d 16, 18 (2d Cir. 1993); Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986) (per curium); Vicioso v. United States, Nos. 97 Civ. 1139, 92 Cr. 1138, 1997 U.S. Dist. LEXIS 14772, at *15 (S.D.N.Y. Sept. 29, 1997).

Borbon acknowledges that his claims regarding his being "found in" the United States were not raised on direct appeal. As noted above, Borbon's two claims appear to be premised on his disagreement with the allegation that he was "found in" the United States. In his § 2255 motion, he explains that his claims were not previously raised because he "was made aware" of them only by his recent review of relevant legal precedent. He asserts that his delay in presenting his claims was also occasioned by the length of time he encountered in obtaining "records and materials" necessary to support his claims.

These contentions do not amount to "cause" for failure to raise his claims on direct appeal. The illegal reentry statute makes it a crime for an alien to "enter" or be "found in" the United States subsequent to deportation. See 8 U.S.C. § 1326(a).

While the date on which a defendant is "found," or should have been found by the government, may have statute of limitations implications, there is no timeliness issue here. Borbon was deported in October 1995, reentered at some point thereafter, triggering the limitations period, and was indicted for illegal reentry in October 1999, within the five-year statute of limitations under any set of facts.

There has been no identified change in the law that would be relevant to his claims. He does not assert that any of the claims in his § 2255 motion are raised now, as opposed to on a timely direct appeal, because of a change in the law. Borbon has not established any basis for "cause" to explain his procedural default.

Borbon does not allege any facts to establish that procedurally barring his § 2255 motion would result in "actual prejudice" to him.

The plea proceeding conducted by Magistrate Judge Maas complied in all respects with Federal Rule of Criminal Procedure 11. Borbon acknowledged that after being deported, he "bought a plane ticket and came back with the same green card in Miami International Airport."

Before entering his guilty plea, Borbon stated that he was satisfied with his attorney's representation of him. In the § 2255 motion, he now argues that his counsel was ineffective because she (i) failed to inform him of the applicable illegal reentry law, (ii) failed to explain to him the elements the government would have to prove, and (iii) failed to challenge the allegation that he was "found in" the United States. Given the thorough plea proceeding, which included an explanation of the charge against him and the elements of that charge, and the fact that Borbon's presence in the United States after deportation was never in question, counsel's choice to forego any of those arguments represents a reasonable tactical choice. See Mason v. Scully, 16 F.3d 38, 42 (2d Cir. 1994) ("Actions or omissions by counsel that `might be considered sound trial strategy' do not constitute ineffective assistance.") (internal citations omitted).

At sentencing, it was established that counsel had reviewed the PSR and had discussed its contents with Borbon and defense counsel was successful in convincing the Court to sentence Borbon to 69 months, which was 8 months below the bottom of the applicable Guidelines range. Defense counsel's performance cannot be said to have fallen below "an objective standard of reasonableness" under "prevailing professional norms" and thus no colorable ineffective assistance claim exists. Strickland v. Washington, 466 U.S. 668, 688 (1984).

Borbon cannot establish "cause" for procedural default or "actual prejudice" resulting therefrom. As a result, his § 2255 motion is denied for the additional reason that it is procedurally barred.


For the foregoing reasons, Borbon's § 2255 motion is denied, and his case dismissed as untimely and procedurally barred.

As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).

It is so ordered.

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