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September 24, 2004.

CURTIS MEDLEY, Petitioner,
U.S., Respondent.

The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District


Petitioner Curtis Medley pleaded guilty on June 22, 1998, before the Hon. Sonia Sotomayor, to whom the case was then assigned, to participating in a racketeering enterprise through, inter alia, murder and conspiracy to murder, as well as three related charges contained in an information, S13 96 Cr. 515. His plea was entered pursuant to a plea agreement that called for his cooperation. Absent a motion by the government pursuant to U.S.S.G. § 5k1.1, stating that Medley had provided substantial cooperation, the crimes to which he pleaded guilty carried a penalty pursuant to the Sentencing Guidelines of life imprisonment. Thereafter, the case was reassigned to my docket. On February 13, 2001, the government having made a § 5k1.1 motion and described Medley's cooperation in a letter to the court dated January 23, 2001, I departed downward from the prescribed life term and sentenced Medley principally to 20 years' imprisonment. The judgment was filed on February 14, 2001.

  Medley took no appeal, but has submitted a petition, dated April 5, 2002, and received by the Pro Se Office on April 10, 2002, to set aside his conviction and sentence, alleging that his plea resulted from ineffective assistance of counsel, denial of due process, and ignorance of the charges and the consequences of his plea. He asserts as well that he did not get the opportunity to review either the presentence investigation report or the government's letter in support of its downward departure motion pursuant to U.S.S.G. § 5k1.1, and that his lawyer was ineffective for failing to apply for an additional downward departure and for failing to file a notice of appeal.

  For the reasons set forth below, Medley's application for relief is denied and the petition is dismissed.


  During Medley's plea, Judge Sotomayor established that he was competent to enter the plea (6/22/98 Tr. 9-10), explained to Medley and confirmed that he understood each of the four charges in the information (id. at 15-18), and confirmed as well that Medley had reviewed the plea agreement with his lawyer and understood it before he signed it (id. at 24-25). She explained, and elicited from him that he understood, the possible penalties he faced, including the mandatory minimum penalty of 10 years for the narcotics charge that was among the crimes to which he pleaded guilty (id. at 17-21), that he had the right to an appointed lawyer to represent him at all stages of the case (id. at 12), that he had the right to proceed to trial before a jury with the assistance of a lawyer who could cross-examine the witnesses against him (id.), that he need not testify at such a trial (id. at 13), and that if he pleaded guilty there would be no trial (id.). She established also that Medley had had enough of a chance to discuss the case with his lawyer, that he had discussed the consequences of pleading guilty, and that he was satisfied with his lawyer's representation. (Id. at 10) She established as well that he had read and understood the plea agreement, and that nothing had been omitted from it. (Id. at 24)

  During the allocution, Medley confirmed that he was guilty of the crimes to which he was pleading guilty, including at least two murders (id. at 11, 28-29, 33-34), in addition to the murders Medley either had agreed to participate in or for which he served as an accessory (id. at 27, 29-32).

  Medley faced a mandatory life sentence for the crimes to which he had pleaded guilty. At the sentencing on February 13, 2001, Medley's lawyer said that he had reviewed the presentence investigation report with the defendant and had no objection to it, a position Medley did not then dispute. (2/13/01 Tr. 4) Counsel also handed up to the court records reflecting Medley's efforts while in prison to provide support for his children from his earnings. (Id. at 8) He also spoke in mitigation, pointing out that Medley was in poor health and arguing that he was unlikely to survive the 20-year sentence recommended in the presentence report. (Id. at 9-10) The government disclosed in its letter in support of a downward departure motion that whatever delay there had been in the onset of Medley's cooperation had ended when the lawyer who represented him at the plea and sentence replaced an earlier lawyer who had failed to help Medley pursue his cooperation, a view articulated by Medley's lawyer at the sentencing and not objected to by Medley (id. at 6).

  In addition, the court heard at the time of sentence from Leroy Matthis Sr. and Sandra Lewis, father and sister, respectively, of one of the men Medley had pleaded guilty to killing. (Id. at 2-4; see 6/22/98 Tr. at 33-34) When the time arrived for Medley to exercise his right to address the court before being sentenced, he addressed the Matthis family, and told them he was "very deeply sorry and I hope one day you will forgive me." (2/13/01 Tr. at 10) At the time of sentence, the government made a motion under U.S.S.G. § 5k1.1, based on facts contained in a letter of January 23, 2001 from Assistant U.S. Attorney Sharon L. McCarthy to the court, outlining Medley's cooperation. (Jan. 23, 2001 Letter of Sharon L. McCarthy to the court (the "Government Letter")) The Government Letter set forth both the positive aspects of Medley's cooperation, and the problematic aspects. The latter included that he had lied to minimize and conceal his own involvement in murders, inculpated others in murders of which he had no actual knowledge (Government Letter at 2-3, 13-14), and damaged what remaining credibility he might have had as a witness by writing a letter threatening to kill a woman with whom he had had a relationship and who had borne one of his children. Based on the government's motion and letter, I departed downward and sentenced Medley principally to 240 months imprisonment.

  Medley now claims that he entered the plea without understanding the nature of the charge against him or the consequences of the plea, including that a murder to which he pleaded guilty, which he does not specify, was one he did not commit (Petition at 5-6), that he was not permitted to review either the presentence investigation report or the government's letter in support of its downward departure motion (id. at 5), and that his lawyer failed to provide effective assistance because he did not move for a downward departure pursuant to U.S.S.G. § 5k2.0, and failed despite Medley's instruction to file a notice of appeal (id. at 6).


  As set forth below, Medley's petition is without merit, both procedurally and substantively.

  First, the petition is time-barred. As appears above, Medley was sentenced on February 13, 2001. The judgment was filed on February 14, 2001. The Antiterrorism and Effective Death Penalty Act ("AEDPA") requires that a petition such as Medley's, pursuant to 28 U.S.C. § 2255, be filed within one year of the date the conviction becomes final, absent exceptions not here applicable. Because no notice of appeal was filed, Medley's conviction became final following the last date such a notice could have been filed — ten days after entry of the judgment. Because that date fell on a Saturday in 2001, Medley's conviction became final the following Monday, February 26, 2001. Thus, Medley had until February 26, 2002 to file his petition. The current petition was not received in the Pro Se Office until April 10, 2002, more than two months after the expiration of the one-year limitations period.

  To be sure, the one-year period "is a statute of limitations rather than a jurisdictional bar so that courts may equitably toll the period." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); see also Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001). However, the circumstances in which such tolling will be appropriate are "rare and exceptional," id. (internal quotation marks omitted), and Medley has presented no facts that fit either category. That Medley has been acting pro se is not a "rare" circumstance, and his lawyer's failure to take a direct appeal is not "exceptional." Cf. Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000) (mistake by counsel in calculating time to file petition does not justify equitable tolling); German v. United States, 209 F.Supp.2d 288, 293 (S.D.N.Y. 2002) (inability to understand English and lack of law library in Spanish not "extraordinary"). Further, even if rare and exceptional circumstances were present here, Medley would have to show that such circumstances were responsible for his failure to file on time and that he had ...

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