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United States District Court, S.D. New York

April 23, 2004.


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


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.


  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.


 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 triggered under subsection (4). Given the one year statute of limitations governing claims under § 2255, Petitioner was required to file his § 2255 motion by March 21, 2003.

  Under either subsection (1) or subsection (4), Petitioner's § 2255 motion, filed November 13, 2003, is untimely. His filing is more than five months beyond the deadline and is time — barred.

 III. There Exist No Compelling Reasons to Equitably Toll the Statute of Limitations for 28 U.S.C. § 2255 Petitioner requests that this Court equitably toll the statute of limitations on the basis of his having received ineffective assistance of counsel. (Pet's Mem. at 5.) The Second Circuit has stated that equitable tolling requires a "rare and exceptional circumstance" and that "the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (quotation omitted); see also Baldayaque v. United States, 338 F.3d 145, 150 (2d Cir. 2003). Petitioner has not shown that he meets either of these requirements in the current case.

  A claim of ineffective assistance of counsel is generally not sufficient grounds for equitable tolling. The Second Circuit "has found attorney error inadequate to create the `extraordinary' circumstances equitable tolling requires." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001). An exception occurs where an individual is not effectively represented and does not learn of his attorney's mistake for some time. See Mandarine v. Ashcroft 290 F. Supp.2d 253 (D. Conn. 2002) (finding cause for equitable tolling where petitioner, as a result of his attorney's mistake, did not learn that his guilty plea qualified him for deportation until completing his sentence). This exception takes into account the fact that an individual, acting with due diligence, might not discover the basis for a § 2255 motion in a timely fashion if he is denied the assistance of a competent attorney. See id. at 260.

  Here, Petitioner does not fall into the narrowly defined exception set out in Mandarino because he does not claim that his attorney's error prevented him from learning of the deficiency in his sentence. Petitioner claims that the error was "obvious" to him during sentencing (Pet's Mem. at 4) and that he requested his attorney to raise the question at that time and to challenge the resulting sentence in the months following the sentencing hearing (id. at 4-5). On the basis of these facts, the alleged ineffectiveness of Petitioner's attorney does not provide any reason for equitable tolling. Petitioner had sufficient information to make a timely § 2255 claim in spite of any alleged inadequacy in the performance of his attorney.

  Petitioner also claims in his reply brief that he did not have access to his plea transcript, sentencing transcript or pre — sentence report after he was transferred from Brooklyn to Elkton, Ohio. (Pet's Reply Mem. at 4.) He then explains that in an effort to obtain the necessary documents, he attempted to contact his attorney and wrote to the Court. (Id. at 4-5.) Although the Court did receive the letter from Petitioner dated March 28, 2002, the Court did not receive a letter from Petitioner in Elkton, Ohio at a later date. These statements, without additional information, are insufficient to establish either the exceptional circumstances or the level of diligence required for equitable tolling.

 IV. Petitioner's Claim Fails on the Merits


A. Petitioner Is Precluded from Challenging His Sentence by His Waiver of His Right to Appeal
  A defendant's waiver of his right to appeal pursuant to a plea agreement is generally enforceable. See United States v. Chen, 127 F.3d 286, 289 (2d Cir. 1997); United States v. Ready, 82 F.3d 551, 555 (2d Cir. 1996). However, to qualify as a valid waiver, the defendant's decision must be both knowing and voluntary. See Chen, 127 F.3d at 289-290; see also United States v. Rosa, 123 F.3d 94, 101 (2d Cir. 1997) (finding defendant's waiver of his right to appeal valid due to the absence of unconstitutional or unfair circumstances that could call into question the legitimacy of the plea agreement). The Second Circuit has stated that a waiver of a right to appeal based on the ineffective assistance of counsel will not satisfy the knowing and voluntary waiver standard, but has emphasized that it is not sufficient simply to claim ineffective assistance of counsel. United States v. Monzon, 359 F.3d 110, 118-19 (2d Cir. 2004) ("The appeal waiver would be unenforceable if the record of the criminal proceeding revealed that the claim that the waiver was the result of ineffective assistance of counsel was meritorious."). The plea minutes show 1) that Petitioner acknowledged that the Plea Agreement was read to him in Spanish, 2) that he had discussed it with his attorney, 3) that he was satisfied with the representation of his attorney, 4) that he understood the agreement fully and agreed to the terms, and 4) that no one had attempted to force him to consent to the agreement (Plea Hr'g at 12-13.) Thus, Petitioner's testimony at his plea hearing shows that his plea was knowing and voluntary.*fn5

 B. Petitioner's Claim Fails Because Counsel Was Not Ineffective

  The benchmark for judging ineffective assistance of counsel is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). To prove a claim of ineffectiveness, Petitioner must be able to show that: 1) counsel's performance was deficient; and 2) that the deficiencies in counsel's conduct prejudiced the defense. Id. at 687. Review of the performance of the Petitioner's attorney does not satisfy either prong of the Strickland test.

  Petitioner first contends that counsel's Mure to object to the minor participant classification constitutes a deficient performance. (Pet's Mem. at 4.) Petitioner had been indicted for 21 U.S.C. § 812, 841(a)(1), and 841(b)(1)(A) (Indictment in Gov't's Mem. of Law Opp'n Mot. Extend Equitable Toll & Vacate Sent. Pursuant to 28 U.S.C § 2255, Ex. A), which subjected him to a sentence of between ten years and life in prison. 21 U.S.C. § 841(b). As discussed above, first, Petitioner had admitted in open court that he had read and understood the Plea Agreement, agreed to its terms and affirmed that no one had attempted to force him to its terms. (Plea Hr'g at 5-6.) Second, Petitioner had admitted to storing more than 30 kilograms of cocaine in his apartment. (Plea Hr'g at 12-13.) Counsel's assessment that the possession of such a large quantity of cocaine indicated an understanding of the scope of the enterprise and substantial culpability was not objectively unreasonable. See U.S.S.G. § 3B1.2, comment, (n.4-5). Under these circumstances, a plea agreement specifying a sentence range of 70-87 months indicates that counsel was effective, as he had two points deducted under the sentencing guidelines based on the defendant being a minor participant and secured a sentence for Petitioner less than the mandatory minimum which would have resulted from conviction.

  Petitioner's second claim is that counsel was ineffective because he ignored Petitioner's requests to appeal his sentence (Pet'r's Mem. at 5). Although a failure to file an appeal upon request constitutes ineffective assistance of counsel without any showing of prejudice, because the requests in this case occurred after the deadline for the filing of an appeal (see id.), they did not trigger such an obligation. See Roe v. Flores — Ortega, 528 U.S. 470, 477 (2000). Furthermore, Petitioner and his counsel had signed a plea agreement which provided that they would not appeal or engage in post — conviction litigation of a sentence of 70 months. Counsel does have an obligation to consult with a defendant about the possibility of an appeal where a rational defendant would want to appeal or where the particular defendant has demonstrated an interest in appealing (Id. at 480), but when counsel and Petitioner have agreed not to appeal a particular sentence, that agreement is binding on counsel unless counsel concludes that he had rendered ineffective assistance. See Monzon, 359 F.3d at 118-119. Petitioner had received the benefit of the favorable terms of his Plea Agreement, and has failed to show that he gave counsel reason to believe that there existed a ground for appeal such that a rational defendant would wish to pursue the matter. Counsel was therefore not ineffective at the appellate stage.

  For all of the reasons stated above, Petitioner's habeas claim under 28 U.S.C. § 2255 is denied


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