The opinion of the court was delivered by: John F. Keenan, United States District Judge.
MEMORANDUM OPINION and ORDER
Before the Court is the Defendant-Petitioner Ismael Delgado's ("Delgado") motion to vacate his conviction, pursuant to 28 U.S.C. § 2255 ("§ 2255"). Delgado originally submitted his petition to the Court on March 31, 2000. Because his petition is untimely, the Court hereby orders it dismissed.
On August 16, 1995, Delgado pled guilty before this Court to one count of conspiracy to commit murder in aid of racketeering in violation of 18 U.S.C. § 1959 (a)(5) and one count of conspiracy to commit assault in aid of racketeering in violation of 18 U.S.C. § 1959 (a)(6), pursuant to a plea agreement. On May 3, 1996, the Court entered a judgment of conviction. The Court sentenced Delgado to thirteen years' imprisonment followed by three years' supervised release. Delgado never appealed his conviction. He submitted the present § 2255 petition to the Court on July 13, 1998.
The Antiterrorism and Effective Death Penalty Act of 1996, codified at 28 U.S.C. § 2255 ("AEDPA"), imposes a one-year statute of limitations on § 2255 motions filed after April 24, 1996. See Lindh v. Murphy, 532 U.S. 320 (1997). This limitation period begins to run against a petitioner on the latest of the following four dates:
(1) the date on which the judgment of conviction
(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.
Delgado's conviction became final on May 13, 1996, the last date upon which he could have appealed his conviction. See Martinez v. United States, No. 00 Civ. 1214, 2000 WL 863121 (S.D.N.Y. June 28, 2000). His deadline for filing a § 2255 petition, therefore, was May 13, 1997. He submitted the present § 2255 petition on July 13, 1998, over one-year after that deadline. Delgado nevertheless argues that his delay should be excused under the doctrine of equitable tolling.
The Second Circuit has recently adopted the majority view that the AEDPA's one-year limitation period is subject to equitable tolling. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). However, the McGinnis court ruled that equitable tolling only applies in "rare and exceptional circumstance[s]" where a petitioner can show that "extraordinary circumstances prevented him from filing his petition on time." Id. Furthermore, a petitioner "seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll." Id.
Delgado argues that equitable tolling is applicable in this case because he was "misled" by his attorney. According to Delgado, his attorney refused to appeal his conviction, stating that there was no non-frivolous issues upon which to appeal. Delgado argues that if his attorney had filed an appeal, the instant § 2255 motion would have been timely.
This argument lacks merit. Delgado's attorney's refusal to file an appeal is not an "extraordinary circumstance [that] prevented him from filing his petition on time." McGinnis, 208 F.3d at 17. Delgado has not shown how that refusal to file an appeal in itself delayed his own § 2255 petition. It is entirely speculative whether any subsequent § 2255 petition would have been timely had an appeal been filed. Moreover, Delgado has made no showing of reasonable diligence throughout the period he seeks to toll. Because Delgado has failed to demonstrate any extraordinary circumstances to excuse his delay, his petition is untimely and must be denied.
Moreover, under the plea agreement Delgado entered into, he waived his right to contest his conviction and sentence under § 2255 and this waiver is enforceable. United States v. Pipitone, 67 F.3d 34 (2d Cir. 1995).
Delgado requests that his Presentence Report ("PSR") be amended to conform with the Court's statements at sentence. At the time of his sentencing, the parties agreed to substitute part of Delgado's guilty plea allocution for paragraph 30 of the PSR, and the Court directed that "the minutes will replace the present paragraph 30." The parties also agreed to the deletion of the last three sentences of paragraph 55, and the Court crossed-out the three sentences and initialed the change. To the extent that Delgado's PSR has not been amended in accordance with the ...