United States District Court, S.D. New York
November 3, 2004.
ALAN BARTON-NACHAMIE, Petitioner,
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
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,
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.
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.
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
(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.
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.