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United States District Court, Southern District of New York

August 18, 2003


The opinion of the court was delivered by: Denise Cote, District Judge


Through a petition signed on October 29, 2000, and received by this Court's Pro Se Office on November 3, 2000, Rolando Hernandez, also known as Reinaldo Hernandez ("Hernandez") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Because the appeal from this Court's denial of Hernandez's motion pursuant to Rule 36, Fed.R. Crim. P., was pending until recently, this Court was without jurisdiction to address the petition. On October 1, 2002, the Government moved for summary affirmance of this Court's ruling on the Rule 36 motion. On May 16, 2003, the United States Court of Appeals for the Second Circuit granted that motion. Now [ Page 2]

that the appeal has been resolved, the Court has reviewed the petition and finding it to be without merit, denies it.

Hernandez was sentenced on February 20, 1998, principally to a term of imprisonment of 87 months. This sentence was at the bottom of the guidelines range to which Hernandez had stipulated in a plea agreement. In that agreement he had agreed to neither appeal nor otherwise litigate any sentence of 108 months in prison or less. Hernandez confirmed that specific agreement at the time he entered his plea.

Hernandez' claims in this petition stem from the fact that the draft presentence report prepared by the Probation Department calculated his base offense level at 32, while the final or revised report calculated it at 34. The plea agreement was also premised on a level 34 base offense level. After a "safety valve" adjustment and an adjustment for acceptance of responsibility, the guidelines range was 87 to 108 months in prison.

Hernandez argued that his plea was involuntary because he never saw the revised or final presentence report that contained the base offense level of 34. At the sentencing proceeding, however, his attorney advised the Court that both he and Hernandez had reviewed the revised report and that they had no objections to it. Hernandez complains that his attorney should have obtained a corrected presentence report. Since a corrected [ Page 3]

report was prepared, however, this complaint is groundless. If Hernandez is instead complaining that his attorney should have insisted that the calculation in the draft presentence report be used as a basis for his sentence, he has presented no meritorious argument to support that proposition.

Finally, Hernandez complains that his right to appeal was denied. Hernandez agreed to give up his right to appeal when he executed the plea agreement with the Government. He has pointed to nothing that would invalidate either that agreement or the entry of his plea.

Although the Court has addressed the merits of Hernandez' claims, this Section 2255 petition is untimely. Hernandez was sentenced and judgment was entered on February 20, 1998, and his time to appeal expired on March 6, 1998. This petition was not signed until October 29, 2000, over six months after the one year window for filing a habeas petition. Even if a Rule 36 motion can toll the one year period, it did not do so here since it was not filed until after the one year period had expired. The Rule 36 motion was filed on August 26, 1999.

In conclusion, the petition for a writ of habeas corpus is denied. In addition, I decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, [ Page 4]

241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). I also find pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. U.S., 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition and close the case.

SO ORDERED. [ Page 1]


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