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BARTON-NACHAMIE v. U.S.

United States District Court, S.D. New York


November 3, 2004.

ALAN BARTON-NACHAMIE, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

MEMORANDUM OPINION AND ORDER

On October 12, 2004, the Government was ordered to address whether the pro se petition filed by Alan Barton-Nachamie ("Nachamie") under 28 U.S.C. § 2255 is barred by the applicable statute of limitations. In compliance with that Order, the Government submitted a letter to the Court dated October 22, 2004. Because Nachamie's petition is untimely, it is hereby dismissed.

  I. BACKGROUND

  Nachamie was charged in Superseding Indictment S3 98 CR 1238 with twenty-six counts of health care fraud stemming from his participation in a fraudulent billing scheme to defraud Medicare of millions of dollars. Following a six-week jury trial, Nachamie was found guilty of twenty-three counts. On November 22, 2000, Nachamie was sentenced to a term of eighty-eight months in prison, to be followed by a three-year term of supervised release. Nachamie was also ordered to make restitution in the amount of $4,292,555.90. Nachamie is currently serving his sentence at the Federal Correctional Institution at Otisville, New York.

  Nachamie appealed his conviction arguing that this Court erred in: (1) making certain evidentiary rulings; (2) denying his request for a severance; and (3) calculating his offense level at sentencing. See United States v. Nachamie, No. 00-1806, 2002 WL 108341, at *1 (2d Cir. Jan. 25, 2001). Nachamie also claimed that he was deprived of a fair trial by remarks made by the prosecutor during summation. See id. The Second Circuit affirmed Nachamie's conviction on January 24, 2002. See Second Circuit Docket Sheet for United States v. Nachamie, Docket #00-1806, Ex. A to the 10/22/04 Letter from Assistant U.S. Attorney Christine Meding, at 8. The mandate issued on February 14, 2002. See id.

  Nachamie's habeas petition is dated July 6, 2004. An official stamp indicates that this Court's Pro Se Office received the petition on July 8, 2004, and the Court's docket sheet indicates that the petition was filed on July 23, 2004. Under the "prison mailbox" rule, a pro se petition is deemed to have been filed on the date that the petitioner gives it to prison officials to forward to the Clerk of the Court. See Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir. 2001). Accordingly, Nachamie's petition is deemed to have been filed on July 6, 2004.

  II. DISCUSSION

  Nachamie's petition must be dismissed because it was not filed within the one-year limitation period set forth in 28 U.S.C. § 2255 and is therefore time-barred. The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), enacted a one-year limitation period for petitions filed under 28 U.S.C. § 2255. The one-year limitation period begins to run from the latest of:

(1) the date on which the judgment of conviction 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 asserted 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. 28 U.S.C. § 2255.
  Here, Nachamie does not claim that he was impeded by any governmental action, nor is he asserting a right newly recognized by the Supreme Court. Nachamie's sole contention is that his trial counsel was ineffective for a variety of reasons.*fn1 Therefore, the only applicable date is the date when Nachamie's conviction became final. When a defendant files a direct appeal but does not seek review in the United States Supreme Court, the one-year limitation period begins to run when the time for seeking such review expires. See Clay v. United States, 537 U.S. 522, 532 (2003) ("We hold that, for federal criminal defendants who do not file a petition for certiorari with this Court on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires."). The rules for the United States Supreme Court state that a petition for a writ of certiorari to review a decision by a United States Court of Appeals must be filed within ninety days after entry of the judgment. See Sup. Ct. R. 13(1); see also Clay, 537 U.S. at 525 (noting that the time in which the defendant could have petitioned for certiorari expired ninety days after the Court of Appeals affirmed the conviction). Accordingly, Nachamie's conviction became final on April 24, 2002, ninety days after the Second Circuit affirmed his conviction on January 24, 2002.

  III. CONCLUSION

  Because Nachamie's conviction became final on April 24, 2002, he had until April 24, 2003 — one year from April 24, 2002 — to file his habeas petition. Nachamie did not file his petition until July 6, 2004, well after the April 24, 2003 deadline had passed. As Nachamie's petition is untimely, it must be dismissed. See, e.g., Raphaela v. United States, No. 02 Civ. 6255, 2004 WL 203012, at *2 (S.D.N.Y. Feb. 3, 2004); Dowtin v. United States, No. 02 Civ. 2060, 2002 WL 31770806, at *1 (S.D.N.Y. Dec. 11, 2002). Because this Court has not ruled on the merits of Nachamie's petition, a certificate of appealability will not issue. The Clerk of the Court is directed to close this case.

  SO ORDERED.


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