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May 22, 2003


The opinion of the court was delivered by: John Keenan, Senior District Judge.


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 on March 23, 2000. Delgado's petition is untimely and is hereby dismissed.


On February 26, 1996, a Grand Jury sitting in the Southern District of New York returned a sealed, nineteen count indictment, 96 Cr. 126 (AGS),*fn1 naming defendants Ramon Velasquez and other members and associates of a narcotics organization helmed by Velasquez (the "Velasquez Organization"). A number of superseding indictments were returned and on December 18, 1996, the Grand Jury returned S9 96 Cr. 126 (JFK), a sealed, 116 count superseding indictment charging the various defendants, inter alia, with participating in and conspiring to participate in a racketeering enterprise. Defendant-Petitioner Delgado, named for the first time in the December 18, 1996 indictment that was unsealed on January 21, 1997, was charged with aiding the Velasquez Organization by participating in the conspiracy to murder Juan Tavares (Count 50); the murder of Juan Tavares (Count 51); and by using and carrying and aiding and abetting the use and carrying of a firearm in connection with Juan Tavares's murder (Count 111).

On November 17, 1997, Delgado pled guilty to Counts 50 and 111 of the indictment. Delgado pled guilty pursuant to a plea agreement (the "Agreement") that had been signed by the Government, Delgado and Delgado's attorney, Robert Blossner, Esq. ("Blossner"). Although calculations under the United States Sentencing Guidelines (the "Guidelines") provided for a sentencing range of 292 to 365 months' imprisonment, the statutory maximum for the offenses to which Delgado pled guilty was 120 months' imprisonment on Count 50 to be followed by a consecutive sentence of 60 months' imprisonment on Count 111. The parties, therefore, stipulated to a Guidelines sentence of 15 years' imprisonment. Consistent with this stipulation, as part of the Agreement, Delgado agreed that he would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, a sentence of 15 years' imprisonment." On March 3, 1998, this Court sentenced Delgado to the stipulated 15 years' imprisonment.

Delgado did not file a direct appeal of either his conviction or his sentence. On or about April 16, 1998, Delgado was taken into state custody in connection with a state murder charge. Blossner served as Delgado's counsel in that proceeding as well. Following a trial, Delgado was convicted and sentenced to 25 years' to life imprisonment, which sentence is to run consecutively to his federal sentence.

On March 23, 2000, Delgado submitted the instant petition to vacate his sentence.*fn2 By Memorandum Opinion and Order dated April 25, 2003, the Court dismissed the petition as untimely. Due to certain inaccuracies in the background section of the Court's Opinion, Leonard J. Levenson ("Levenson"), counsel for Delgado, moved to have the Court reconsider its decision. The Government consented to Levenson's application, and by Order of May 13, 2003 the Court recalled and vacated its April 25, 2003 Memorandum Opinion and Order and agreed to reconsider Delgado's petition.



The Antiterrorism and Effective Death Penalty Act of 1996, codified at 28 U.S.C. § 2244 ("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 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. § 2244 (b)(2). Delgado's judgment of conviction was officially filed on March 4, 1998. Although he waived his right to appeal a sentence of 15 years' imprisonment as part of the Agreement, Rule 4 of the Federal Rules of Appellate Procedure afford a criminal defendant ten days from the date of judgment to file a notice of appeal. Affording, Delgado these extra ten days would mean that an appeal filed by March 14, 1998 theoretically would have been timely. Thus, the one-year statute of limitations on Delgado's petition expired on March 14, 1999.

In limited circumstances the one-year limitation period for filing a § 2255 petition is subject to equitable tolling. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Equitable tolling only applies, however, 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.

As discussed, Delgado was taken into state custody on April 16, 1998 in connection with a state murder charge. Delgado was returned to federal custody on December 14, 1999. Upon his return to federal custody, Delgado was placed in a segregated housing unit in which he claims to have been denied access to legal materials. Levenson Aff. ¶ 5. Delgado argues that he is therefore entitled to equitable tolling of the time from April 16, 1998 to February 14, 2000, the date on which he was moved to the general population. This argument lacks merit.

The circumstances claimed by Delgado fail to rise to the level of "rare and exceptional" as required for tolling purposes. The essence of Delgado's argument is that during his time in state custody and segregated housing he had limited to no access to federal legal materials. A lack of access to legal resources is not, however, considered an extraordinary circumstance. See Wilson v. Bennett, 188 F. Supp.2d 347, 353 (S.D.N.Y. 2002) (citing Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (finding limited library access insufficient to establish "extraordinary circumstances")). That Delgado was removed from federal custody and spent time in segregated housing are difficulties that are neither rare nor exceptional enough to warrant a finding of extraordinary circumstances. See Saldana v. Artuz, 2000 WL 1346855, at *2 (S.D.N.Y.) (Chin, J.) (finding that removal from state custody and placement in a private institution followed by a ...

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