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MARTINEZ v. U.S.

April 23, 2004.

FELIX MARTINEZ, Petitioner,
v.
UNITED STATES, Respondent



The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge

OPINION AND ORDER

Petitioner Felix Martinez ("Martinez") brings the current petition pro se pursuant to 28 U.S.C. § 2255. He challenges his sentence on the ground that his attorney was ineffective for failing to recognize that his conduct met the criteria for minimal participation rather than the minor role identified in his plea agreement. (Mem. Mot. Extend Equitable Toll & Vacate Sent. Pursuant to 28 U.S.C. § 2255 (hereinafter "Pet's Mem.") at 4; Pet's Reply Mem. at 2-3.) For the reasons stated below, the petition is denied.

Background

  Pursuant to a plea agreement, which had been read to him in Spanish, Petitioner pled guilty to a one count indictment charging him with conspiracy to distribute and possession with intent to distribute five kilograms or more of mixtures and substances containing cocaine in violation of 21 U.S.C. § 846. (Plea Hr'g Tr., dated Dec. 5, 2001*fn1 (hereinafter "Plea Hr'g"), at 12.) During his allocution, Petitioner admitted that he had stored approximately 30 kilograms of cocaine for another member of the conspiracy in December 1997. Id. at 12-13.)

  In the plea agreement, both parties agreed that neither party would appeal a sentence in the range of 70-87 months. (Letter from Andrew Fish to Michael Hurwitz io 11/27/01*fn2 (hereinafter "Plea Agreement") at 2.) This range, which was based on Petitioner's making a proffer to the government meeting the conditions set forth in 18 U.S.C. § 3553(f), assumed that Petitioner would receive a two — point deduction under the sentencing guidelines for playing a minor role in the overall conspiracy. Both parties agreed to facts supporting a minor participant classification. See U.S.S.G. § 3B1.2(b) (2003). Petitioner now contends, however, that he was due the four point deduction accorded to minimal participants. (Pet's Mem. at 4.) He argues that at the time of sentence, his counsel was ineffective for failing to address this deficiency in the agreement, despite the fact that Petitioner called this "obvious error" to his attention. (Id.) Petitioner further contends that, starting in April 2002, he requested that counsel challenge the sentence on appeal and that counsel failed to do so, providing a second, independent basis for his ineffectiveness claim. (Id. at 5.)

  Petitioner fails to mention that his Plea Agreement with the government, signed by him and by his attorney, provided that if the Court sentenced the defendant within the range of 70-87 months, he would not file an appeal or engage in post — conviction litigation. (Plea Agreement at 4.) In accordance with his Plea Agreement, Petitioner was sentenced to 70 months in prison and three years of supervised release on March 6, 2002. (Sent Tr. dated Mar. 6, 2002*fn3 (hereinafter "Sent. Tr.") at 6.) Petitioner wrote to this Court to request a copy of his sentencing transcript on March 28, 2002. The Court ordered that he be provided with the transcript on April 1, 2002 and it was sent to him on May 6, 2002. In his petition, he states that "starting in April 2002" Petitioner on three different occasions wrote to counsel instructing him to file an appeal or a post — conviction motion challenging his sentence under 28 U.S.C. § 2255 and that counsel did not respond. (Pet's Mem. at 5.) Petitioner initiated this action on November 13, 2003.

  Discussion

 I. Petitioner's Claim of Minimal Participation Is Without Merit

  Section 3B1.2 of the U.S. Sentencing Guidelines allows the offense level of the defendant under the guidelines to be decreased by two points if the defendant was a minor participant and by four points if the defendant was a minimal participant in the criminal activity. U.S.S.G. § 3B1.2 (2002). The commentary for this section provides, "It is intended that the downward adjustment for a minimal participant will be used infrequently." Id., comment, (n.4). The commentary also states, "the defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant." Id. Although a minor participant is still significantly less culpable than the average participant, Petitioner is unable to satisfy the stringent requirements for minimal participant status. See id. at comment. (n.3(A)),(n.5).

  Here, the scope of the conspiracy charged was to distribute and possess with intent to distribute five kilograms or more of cocaine (Plea Hr'g at 12). The Petitioner, according to his sworn statement during the plea allocution, possessed with intent to distribute 30 kilograms of cocaine with the knowledge that doing so was against the law. (Id. at 14, 17.) This level of involvement indicates that Petitioner was aware of and understood the scope of the criminal conspiracy, i.e., to distribute 30 kilograms of cocaine, and therefore he cannot be considered to have acted as a minimal participant. Petitioner's action in knowingly storing such a large quantity of cocaine on behalf of other members of the conspiracy does not indicate the lack of culpability necessary to claim the minimal participation designation. See U.S.S.G. § 3B1.2, comment (n.4).

 II The Statute of Limitations for 28 U.S.C. § 2255 Has Expired

  Even assuming that Petitioner was entitled to be treated as a minimal participant, 28 U.S.C. § 2255 provides that a "1 — year period of limitation shall apply to a motion under this section." 28 U.S.C. § 2255. This period runs from the most recent of:
(1) the date on which the judgment 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 assorted 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. Given that no newly recognized right is involved here, subsection (3) is inapplicable. Petitioner has alleged no facts to support application of subsection (2). The statute of limitations for Petitioner's § 2255 claim, then, should be judged under subsection (1) or (4).

  Petitioner was sentenced on March 6, 2002, and judgment was filed March 7, 2002. At that time, this Court informed Petitioner that he had a period often days in which to file a notice of appeal mid that if he did not do so he would lose his right to appeal. (Sent. Tr. at 7-8.) That limitation expired on March 21, 2002 and the judgment of conviction became final on that date.*fn4 Under subsection (1), therefore, the statute of limitations for § 2255 began running on March 21, 2002 and the last date for filing his petition was March 21, 2003 under the strictures of § 2255.

  With respect to subsection (4) of § 2255, Petitioner claims in his petition that he advised his attorney prior to sentencing that he "should have received a four count reduction under § 3B1.2" and that counsel "did not contest the obvious error." (Pet's Mem. at 4.) He states that he began writing letters to counsel requesting that counsel file either an appeal or a § 2255 motion starting in April 2002. (Id. at 5.) From his own statements, it is clear that Petitioner knew the basis for this motion on March 21, 2002, the last date for filing an appeal. Therefore, March 21, 2002 is the latest date on which the statute of limitations for § 2255 could have been ...


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