The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
Before the Court is Petitioner Jesus A. Ramos's, a/k/a "Tone,"
("Ramos" or "Petitioner") pro se motion pursuant to
28 U.S.C. § 2255 (" § 2255") to vacate, set aside or correct his
conviction. Petitioner claims (1) a violation of Rule 11 of the Federal
Rules of Criminal Procedure and (2) ineffective assistance of counsel.
For the reasons outlined below, Petitioner's motion is denied.
On August 16, 1995, Ramos, represented by counsel, pled guilty to a two
count Superceding Indictment charging him with conspiracy to murder and
conspiracy to assault with a dangerous weapon. The indictment was brought
in connection with Ramos's membership in the "Head Crackers," a street
gang operating principally in the Bronx, New York.
On April 29, 1996, Ramos, represented by new counsel,
moved to withdraw his guilty plea. Petitioner claimed to possess a
basis for withdrawal because this Court "failed to inform [him] of the
effects of a violation of the term of supervised release" during the plea
allocution. See July 1999 Filing at 3. The Court denied
Petitioner's motion and sentenced him to 13 years incarceration (the
statutory maximum of 10 years on Count One and the statutory maximum of 3
years on Count Two, with the terms running consecutively). As a curative
measure, because the Court did not specifically advise Petitioner of any
effects of violating supervised release, the Court did not sentence
Petitioner to a term of supervised release.
After this sentence was rendered, Petitioner timely filed a notice of
appeal to the United States Court of Appeals for the Second Circuit
challenging the constitutionality of 18 U.S.C. § 1959, to which he
pled guilty. Petitioner raised no other issues at that time.
On November 17, 1997, the Second Circuit rejected Petitioner's
challenge of § 1959's constitutionality and affirmed his conviction.
See United States v. Torres, 129 F.3d 710, 713 (2d Cir. 1997).
Petitioner's conviction became final on February 16, 1998. This
determination was made by the Second Circuit, which calculated February
16, 1998 as the last day for filing a timely writ of certiorari
petition according to Supreme Court Rule 13.1. See Second
Circuit Mandate, Feb. 6, 2003 at 1. Rule 13.1 states that a writ of
certiorari must be filed within ninety days after entry of judgment.
On November 7, 1998, Petitioner, pro se, filed a motion
pursuant to 28 U.S.C. § 2255 seeking to "vacate, modify, or correct"
his sentence. See Petitioner's Motion dated November 7, 1998 at
l ("November 1998 Filing"). Petitioner's November 1998 Filing, which set
forth four issues, indicated a "memorandum of facts to follow" and also
indicated that Petitioner intended to "reserve the right to amend [his]
issues." Id. By way of a letter to Petitioner, the Pro Se
Office acknowledged that it had received Petitioner's papers on
November 12, 1998. This letter also instructed Petitioner not to submit
subsequent papers until he received a docket number. On February 10,
1999, Petitioner received a second letter providing notice of that docket
On June 21, 1999, the Government filed its opposition to Petitioner's
motion. See Government's Opp. dated June 1999. The Government
contended that Petitioner's motion should be dismissed for "failure to
state claim upon which relief may be granted because it set forth no
facts or law to which the government could respond." See
Opp. dated June 1999 at 3. The Government also argued that "the one
year statue of limitations period governing § 2255 petitions
expired on February 15, 1999, so any subsequent petition was procedurally
barred, unless Ramos could show `extraordinary circumstances' sufficient
to justify tolling the applicable limitations period." See
Government's Opp. dated April 2001 at 2 quoting Government's Opp. dated
June 21, 1999 at 4-5.
On July 28, 1999, Petitioner filed a memorandum of law ("July 1999
Filing") in support of his November 1998 Filing. In this July 1999
Filing, Petitioner sought to vacate, set aside, or correct his sentence
on two grounds. Petitioner claimed that (1) "counsel rendered ineffective
assistance when he failed to appeal the trial court's ruling regarding
Petitioner's rule 11 issue" and (2) "the district court reversible [sic]
erred when, in its effort to cure the prejudice to Petitioner by its
violation of rule 11, it imposed a sentence without supervised release."
See July 1999 Filing at 3, 8.
On August 28, 2000, this Court issued a Memorandum Opinion and Order
instructing Petitioner to file an amended petition by October 27, 2000
"stating why this Court should. consider his petition as timely."
See Memorandum Opinion & Order dated Aug. 28, 2000 at l. In
a document dated October
16, 2000, Petitioner filed an amended petition ("October 2000
Filing") claiming that the November 1998 Filing properly tolled the one
year statute of limitations, thereby making the July 1999 filing
timely. See generally October 2000 Filing. In a Memorandum
Opinion and Order issued on June 25, 2001, the Court disagreed with
Petitioner's assertion. Instead, the Court found that "although
[Petitioner] filed notice of petition on November 7, 1998, that notice
merely stated four unsupported broad `issues' upon which it was
purportedly based," and that the amended July 1999 Filing was time barred
by the Antiterrorism and Effective Death Penalty Act of 1996's ("AEDPA")
one year statute of limitations. See Memorandum Opinion
and Order dated June 25, 2001 at 1. Under this one year statute
of limitations, this Court reasoned, February 15, 1998 was the last
possible day that Petitioner could have brought his § 2255 motion.
The Court found, however, that in light of the two letters from the
Pro Se Office, equitable tolling applied. This Court tolled the
statute of limitations for three months, but determined that the extra
three months still failed to make Petitioner's motion timely:
The first letter [from the Pro Se Office] directed
Ramos not to submit any further materials until he
received a docket number, and the second letter
advising him of the docket number arrived too
close to February 15, 1999 for him to prepare an
adequate supplement by that deadline. This
Court can only toll Ramos' AEDPA deadline for
those three months in which he was instructed not
to submit papers, for the doctrine of equitable
tolling "does not reset the date from which the
one year statute of limitations begins to
Memorandum Opinion & Order, dated Au.28, 2000 at 3.
On July 9, 2001, Petitioner, pro se, filed an appeal to the
United States Court of Appeals for the Second Circuit from the judgment
this Court entered on June 25, 2001 denying his § 2255 as time
barred. By mandate dated February 6, 2003, the Second Circuit vacated the
Court's August 28, 2000 Opinion. The circuit court reasoned that this
Court should have deemed the July 1999 filing an amendment of a timely
filed petition. The appeals court did not take a position with respect to
the merits of the claims. See Mandate of Second Circuit dated
February 6, ...