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United States District Court, S.D. New York

April 20, 2005.

HAIM YUZARY, Petitioner,

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


By petition dated April 13, 2004, Haim Yuzary, represented by new counsel, moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his conviction and sentence of 120 months' imprisonment to be followed by 36 months' supervised release. For the reasons set forth below, Yuzary's motion is denied as untimely.


  On June 13, 1997, a jury convicted Yuzary of conspiracy to commit money laundering in violation of 18 U.S.C. § 371 and money laundering in violation of 18 U.S.C. § 1956(a)(2)(B). In August 1997, new counsel appeared for Yuzary and requested that sentencing be adjourned so that a factual investigation could be conducted. The application was granted. On February 28, 2000, Yuzary moved for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, which this Court denied on May 24, 2000. United States v. Yuzary, No. 96 Cr. 967 (RPP), U.S. Dist. LEXIS 7106 (S.D.N.Y. May 24, 2000). On September 15, 2000, Yuzary was sentenced to 120 months in prison and 36 months of supervised release, fined $250,000 and assessed $100, and judgment was entered. The Second Circuit Court of Appeals affirmed his conviction on August 21, 2001. United States v. Yuzary, 17 Fed. Appx. 43 (2d Cir. 2001). Yuzary filed the instant motion on April 13, 2004.


  I. The Motion is Time Barred

  On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, which, inter alia, amended 28 U.S.C. § 2255 to impose a one-year limitations period for post-conviction applications filed on or after April 24, 1996. Because Yuzary filed the instant petition on April 13, 2004, the one-year limitation period established by AEDPA applies to his petition. Under § 2255, the limitation period is calculated as follows:

The limitation period shall 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.

  Yuzary's conviction became final on November 19, 2001, when his time for filing a petition for a writ of certiorari to the United States Supreme Court expired. Accordingly, under § 2255(1), Yuzary had until November 19, 2002 to file a petition pursuant to 28 U.S.C. § 2255. Yuzary filed his petition on April 13, 2004 — approximately one and one-half years after the one-year limitation period expired under § 2255(1). Yuzary argues that he is entitled to statutory and equitable tolling. His first argument is that his petition is timely under § 2255(2) because the Second Circuit's decision in Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993), was "a government created impediment to claims of ineffective assistance of counsel," (Pet.'s Mem. at 11), which was removed on April 23, 2003 by the decision of the United States Supreme Court in Massaro v. United States, 538 U.S. 500 (2003). Yuzary claims that his petition is timely because, pursuant to § 2255(2), he had until April 23, 2004 to file his § 2255 motion. Yuzary also argues that he is entitled to equitable tolling because of the Supreme Court's ruling in Massaro.

  In Billy-Eko, the Second Circuit held that when a § 2255 petitioner is represented by new counsel on appeal, the petitioner's ineffective assistance of trial counsel claims are procedurally defaulted if they were not raised on direct appeal. See 8 F.3d at 114-15. In Massaro, however, the Supreme Court abrogated that rule by holding that, with respect to § 2255 petitions, there is no procedural default for failing to raise ineffective assistance of counsel claims on direct appeal. See Massaro, 538 U.S. at 509.

  To be entitled to statutory tolling of the one-year limitations period under § 2255(2), Yuzary must show that he meets the following statutory criteria: "(1) a government-created impediment (2) that violates the Constitution or laws of the United States and (3) prevents the filing of the motion to vacate." United States v. Tamfu, 2002 U.S. Dist. LEXIS 19771, at *11 (N.D. Tex. Oct. 5, 2002) 20 U.S.C. § 2255(2); see also Joost v. United States, 336 F. Supp. 2d 185, 187 (D.R.I. 2004). Yuzary has not made, and as a matter of law cannot make, a showing that satisfies these criteria. First, the Second Circuit's decision in Billy-Eko, was not a government-created impediment within the meaning of § 2255(2). Although § 2255(2) does not expressly state that unfavorable judicial precedent cannot be a government-created impediment, almost all of the cases arising under that subdivision involve some sort of action or inaction by the executive branch. See, e.g., Ruiz v. United States, 221 F. Supp. 2d 66, 76 (D. Mass. 2002) (stating that the Government's failure to fulfill petitioner's Freedom of Information Act request seeking allegedly exculpatory documents constitutes an impermissible governmental impediment); United States v. Smith, No. 99-CV-6117, 2000 U.S. Dist. LEXIS 12801, (E.D. Pa. Aug. 31, 2000) (same); Edmond v. United States Attorney, 959 F. Supp. 1, 4 (D.D.C. 1997) (same).

  In the two instances in which a federal court has considered whether a judicial precedent can constitute a government-created impediment under § 2255(2), both courts rejected the petitioner's argument. In Gonzales v. United States, 135 F. Supp. 2d 112 (D. Mass. 2001), a defendant had been designated a Career Offender based on two prior state convictions and these convictions were used to enhance his sentence under the United States Sentencing Guidelines. Approximately two years after his federal conviction became final, the defendant succeeded in vacating the state convictions upon which his Career Offender status was based. Six months later, he filed a § 2255 petition seeking a reduction in his federal sentence and arguing that he was entitled to calculation of his limitations period pursuant to § 2255(2) because he could not file a habeas petition to reduce his federal sentence until after his state court sentences were vacated. The district court, however, held that "[t]here was no `governmental action' that prevented [the petitioner] from filing [his] petition." Id. at 124. In the second case, United States v. Tush, 151 F. Supp. 2d 1246 (D. Kan. 2001), the defendant pled guilty to arson of a building — in this case a church building — used in an activity affecting interstate commerce in violation of 18 U.S.C. § 844(i). Id. at 1247. The district court accepted the defendant's guilty plea on the grounds that the hymnals and Sunday school materials used by the church were purchased out of state. After the defendant was sentenced on July 19, 1999, the United States Supreme Court limited the breadth of the interstate commerce requirement of 18 U.S.C. § 844(i) to require that the building must be actively employed in interstate commerce for commercial purposes, and that "a passive, passing, or past connection to commerce" is insufficient. See Jones v. United States, 529 U.S. 848, 855 (2000). Approximately one year and three months after his sentencing, the defendant filed a § 2255 motion arguing that the district court did not have jurisdiction to accept his plea or sentence him because in pleading guilty he had only acknowledged that the church he burned down was used in "a passive, passing or past connection to commerce," which did not satisfy the interstate criteria required by Jones. He argued that his motion was timely under § 2255(2) because prior to the Supreme Court's decision in Jones, he was prevented from filing his motion by a government-created impediment — i.e., the prior precedent that the church's purchase of out-of-state supplies did constitute an activity affecting interstate commerce. The district court disagreed, stating that "[a]ny such impediment was not created by `governmental action in violation of the Constitution or laws of the United States' as required by subsection (2)." Id. at 1248.*fn1 Second, even if the Billy-Eko decision was an impediment created by governmental action, it was not "in violation of the Constitution or laws of the United States" as required by 28 U.S.C. § 2255(2). The Supreme Court in Massaro concluded that the rule established by Billy-Eko was procedural and did not violate the laws of the United States or the Constitution:

The procedural default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments. We conclude that requiring a criminal defendant to bring ineffective-assistance-of-counsel claims on direct appeal does not promote these objectives.
Massaro, 538 U.S. at 504; see also Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003) (stating that "Massaro is not a constitutional decision").

  Third, the Second Circuit's holding in Billy-Eko did not "prevent?" Yuzary from filing a timely § 2255 motion. The requirements of § 2255(2) contemplate a literal impediment rather than a legal or strategic hurdle. See, e.g., Gonzalez, 135 F. Supp. 2d at 124-25 (the unripeness of petitioner's claims during the period of limitation did not prevent him from filing a timely § 2255 motion); Tamfu, 2002 U.S. Dist. LEXIS 19771, at *11-12 ("[e]ven assuming the government has withheld exculpatory material . . ., such withholding would not prevent the filing of a motion under § 2255") (emphasis in original). The Billy-Eko rule did not prevent Yuzary from filing a timely habeas petition; it merely affected the probable outcome of such a motion. For the above reasons, Yuzary's claim that his § 2255 petition is timely under § 2255(2) is without merit.

  Yuzary's claim of equitable tolling is equally without merit. Equitable relief may be "awarded in the court's discretion only upon consideration of all the facts and circumstances." Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 965 (2d Cir. 1981). For a § 2255 petitioner to equitably toll AEDPA's limitations period,

a petitioner must show that "extraordinary circumstances prevented him from filing his petition on time." This formulation "requires the petitioner to demonstrate a causal relationship between the extraordinary circumstances . . . and the lateness of his filing." As one component of the causation showing, the petitioner must establish that he diligently pursued his application during the time that he seeks to have tolled. If the petitioner is unable to establish that he diligently attempted to file his petition, the extraordinary circumstances on which his tolling claim is based cannot be said to have caused the lateness of his petition.
Doe v. Menefee, 391 F.3d 147, 175 (2d Cir. 2004) (internal citations omitted); see also Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001), cert. denied, 536 U.S. 925 (2002).

  Yuzary argues that he is entitled to equitable tolling because the Billy-Eko decision kept him from pursuing collateral review until the Supreme Court decided Massaro. (Pet.'s Mem. at 11-12.) However, as the Government points out, for a petitioner to be faced with "unfavorable case law is neither rare nor exceptional." (Gov.'s Mem. at 25). The Billy-Eko decision does not constitute "extraordinary circumstances" that prevented Yuzary from filing his petition on time; he, like Massaro, could have challenged the holding in Billy-Eko. Consequently, Yuzary is not entitled to equitable tolling on this basis.

  Lastly, Yuzary's new attorney claims that his motion is timely because his February 28, 2000 Rule 33 motion "also requested that, in the alternative the motion be treated as a [§] 2255 motion." (Pet.'s Mem. at 11.) However, neither Yuzary nor his new counsel offer any evidence that any such request was ever made. Yuzary's Rule 33 motion was based on "newly discovered evidence" of alleged illegal wiretapping conducted in Panama. After allowing Yuzary's counsel a lengthy period of time to investigate the claim, this Court reviewed Yuzary's account of the results of that investigation and denied the motion without a hearing on May 24, 2000. See Yuzary, 2000 U.S. Dist. LEXIS 7106. The Court has found nothing in Yuzary's Rule 33 motion, the accompanying memoranda, or any letter to the Court which indicates that Yuzary requested relief under 28 U.S.C. § 2255 prior to his submission of the instant motion.

  II. Yuzary's Ineffective Assistance of Counsel Claims

  Even assuming Yuzary's § 2255 petition was timely filed, the ineffectiveness of counsel claims raised by the petition are not meritorious. Yuzary contends that his trial counsel was ineffective because he (1) failed to object to an alleged deficiency in Count Two of the Indictment concerning venue; (2) failed to challenge the stop of Yuzary on the jetway at JFK Airport; (3) failed to argue that the questioning of Yuzary constituted custodial interrogation; and (4) failed to give accurate professional advice about the probable outcome of Yuzary's trial and whether to enter a guilty plea. Yuzary also claims that his sentencing counsel rendered ineffective assistance because he failed to request an explanation from this Court as to why it chose to sentence Yuzary to 120 months of imprisonment.

  The benchmark for judging an ineffective assistance of counsel claim is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). To obtain reversal of a conviction due to ineffective assistance of counsel, a petitioner must demonstrate (1) that his counsel's performance was deficient; and (2) that the deficient performance prejudiced the appeal. See id. at 687. To satisfy the first prong of the Strickland test, a petitioner must show that his attorney's performance "fell below an objective standard of reasonableness" given the facts and circumstances of his case. Id. at 688. Merely asserting that defense counsel's trial strategy was deficient is not sufficient unless the petitioner can prove that the representation "was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). Under the second prong of Strickland, the petitioner must "show? that counsel's errors were so serious as to deprive the defendant of a fair trial," and that "but for" the claimed errors of counsel, the result would have been different. Strickland, 466 U.S. at 687, 694.

  Yuzary claims that his "trial counsel was constitutionally ineffective for not making an appropriate and timely objection on the grounds that, with respect to Count Two, the indictment failed to allege venue in the Southern District of New York." (Pet.'s Mem. at 16.) At trial, Yuzary's counsel, with Yuzary's consent, chose to waive venue as to Count Two thus preventing Yuzary from facing a second trial in the Eastern District of New York. (Affidavit of Jacob Laufer, Esq. attached as Exhibit F to Gov.'s Mem. ("Laufer Aff.") ¶¶ 2-4.) Yuzary's claim is easily dismissed as "sound strategy" of counsel under the standard discussed above. See Kimmelman, 477 U.S. at 381; see also Mason v. Scully, 16 F.3d 38, 42 (2d Cir. 1994) ("Actions or omissions by counsel that might be considered sound trial strategy do not constitute ineffective assistance.") (citing Strickland, 466 U.S. at 689).

  Yuzary next claims that he was denied effective assistance of counsel because his trial counsel failed to challenge the allegedly unconstitutional search and seizure of his person on the jetway at JFK Airport on November 7, 1991. This claim is also without merit. According to Yuzary's current counsel, his trial counsel should have challenged the search and seizure on the ground "that the Custom's [sic] inspectors engaged in a non-routine `roving-patrol' stop (which requires reasonable suspicion) as opposed to a routine `checkpoint stop' (which does not require reasonable suspicion)." (Pet.'s Mem. at 17 (emphasis in original).)

  The evidence clearly established that Customs Inspectors stopped Yuzary for a routine border search on the jetway at JFK Airport as he was about to board a flight to Panama. The stop was part of a routine outbound currency check that did not target any particular individuals. (Tr. at 584, 587, 702.) Upon being stopped, Yuzary initially stated that he was not required to report the money he as carrying because his company was a "bank"; he subsequently reported that he was carrying between $20,000 and $30,000 in cash. During the stop, the Inspectors noticed that Yuzary's midsection was "bulky." They patted down his outer clothing and discovered that Yuzary was carrying $480,000 in cash, of which $180,000 was concealed in a specially designed vest that he wore under his shirt. (Tr. at 787.)

  The warrant provisions of the Fourth Amendment do not apply to routine border searches, which are "reasonable" within the meaning of that Amendment even if not supported by probable cause or reasonable suspicion. United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) ("Routine searches of the persons and effects of [border] entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant."). International airports such as JFK Airport are the functional equivalents of the border, Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973), and the Supreme Court's "border search exception" to the Fourth Amendment applies whether the person or items are entering or departing the country. See United States v. Benevento, 836 F.2d 60, 68 (2d Cir. 1987), cert. denied, 486 U.S. 1043 (1988).

  Yuzary's reliance on United States v. Brignoni-Ponce, 422 U.S. 873 (1975), is misplaced because that case pertains to a "roving patrol stop" not a stop at an international airport on the jetway to a departing aircraft. See Almeida-Sanchez, 413 U.S. at 267-68 (stating that roving patrol stops occur when law enforcement agents stop motor vehicles at some distance away from the border or its functional equivalent); Brignoni-Ponce, 422 U.S. at 875. Here, Yuzary was not subjected to a roving patrol stop because he was stopped on the jetway of an international airport — i.e., a functional equivalent of the border. Thus, the Customs Inspectors enforcing the currency reporting regulations did not need reasonable suspicion to stop Yuzary, see Almeida-Sanchez, 413 U.S. at 273, and the Supreme Court's analysis of roving patrol stops in Brignoni-Ponce is not relevant here. Accordingly, Yuzary's counsel did not render ineffective assistance by failing to argue that Yuzary was subjected to a roving patrol stop.

  Similarly, Yuzary's claim that his trial counsel was ineffective for failing to argue that his Fifth Amendment rights were violated by Agent Cordova's questions about whether he was carrying more than $10,000 out of the country is without foundation. The Customs Inspectors approached Yuzary — as well as other individuals — to conduct a routine outbound currency check. The brief questioning of Yuzary on the jetway did not need to be preceded by Miranda warnings because the Customs Inspectors had no reason to believe Yuzary had committed a crime until they discovered he was carrying hundreds of thousands of dollars more than he declared on the currency form he had just completed. See United States v. Moody, 649 F.2d 124, 127 (2d Cir. 1981) (stating that law enforcement officials are not required to give Miranda warnings prior to subjecting an individual to "a routine customs inquiry") (citation omitted). Once the cash was discovered, the Inspectors detained Yuzary and did not question him again until he was advised of his Miranda rights and had waived them. Accordingly, there is no basis to conclude that Yuzary's trial counsel was ineffective for failing to make suppression arguments that were unsustainable under the facts presented.

  Yuzary's final two ineffective assistance of counsel claims — that his trial counsel was ineffective because he failed to give reasonably accurate professional advice about the possible outcome of his trial and whether to accept a guilty plea, and that his sentencing counsel failed to request an explanation from this Court as to why it chose to sentence Yuzary to 120 months' imprisonment — are also without merit.

  Yuzary's claim that his trial counsel advised him to reject several plea offers by the Government because the evidence against him was weak is directly contradicted by the sworn affidavit of Yuzary's trial counsel, Jacob Laufer, Esq. In his affidavit, Mr. Laufer states that he made repeated, unsuccessful attempts to persuade Yuzary to plead guilty. (Laufer Aff. ¶ 8.) According to Mr. Laufer, Yuzary nonetheless chose to go to trial because "he did not want to go to jail and . . . he could not accept any plea offer that involved him spending time in jail." (Id.) Furthermore, the Government disclosed to Yuzary and Mr. Laufer that it had a strong case prior to trial when, after the Government brought its principal trial witness from Panama and arranged to bring Panamanian officials to New York to testify at trial, the trial prosecutor met with Yuzary and Mr. Laufer and presented an outline of the evidence against Yuzary. (Declarations of James Modico and Thomas Brent attached as Exs. G and H to Gov.'s Mem. ¶ 3.) Similarly, Yuzary's claim that his trial counsel failed to advise him of the likely sentence under the Sentencing Guidelines that would apply if he was convicted at trial is also contradicted by Mr. Laufer's statement that prior to trial he discussed the Guidelines with Yuzary on several occasions and advised him of the highest possible sentence he could receive. (Laufer Aff. ¶ 7.) Yuzary has submitted two declarations in which he makes statements that support his claims; however, such after-the-fact statements are not sufficient for the Court to rule in Yuzary's favor. See, e.g., Slevin v. United States, 71 F. Supp. 2d 348, 362 (S.D.N.Y. 1999) ("In every case in this Circuit where a court has found a `reasonable probability' that the defendant would have accepted a plea offer had he not received ineffective assistance of counsel, the finding has been supported by admissible, credible evidence beyond the self-serving testimony of a petitioner faced with the prospect of further imprisonment.").

  Finally, Yuzary's claim that his sentencing counsel, Ivan Fisher, Esq., was ineffective because he failed to request that the Court state on the record the reasons it chose to impose a sentence of 120 months' imprisonment is without merit. Yuzary's contention that this Court unthinkingly set Yuzary's sentence at 120 months' imprisonment is unfounded.*fn2 The Court held an extensive sentencing hearing at which Yuzary was heard at length. Although sentencing counsel could have requested an explanation as to why the Court chose 120 months' imprisonment if "there was a reasonable probability of a different sentence," (Pet.'s Mem. at 21), it is hardly ineffective assistance of counsel for sentencing counsel not to have done so after such an extensive hearing. The evidence showed that Yuzary had made many trips to Panama in 1991 and knowingly transferred approximately $8 million of narcotics proceeds (which is $2 million more than the minimum amount for the applicable sentencing range of between 108 and 135 months' imprisonment), from which he had previously deducted his 4 percent commission and expenses. Accordingly, Yuzary has not demonstrated that Mr. Fisher's decision not to request an explicit statement on the record from this Court constituted ineffective assistance of counsel.

  III. Blakely and Booker Claim

  Yuzary argues that his sentence must be vacated under the Supreme Court's reasoning in Blakely v. Washington, 124 S. Ct. 2531 (2004), and its recent decision (pending at the time of Yuzary's motion) in United States v. Booker, 125 S. Ct. 738 (2005), because the sentence was based on Guidelines enhancements that were not supported by facts found by a jury beyond a reasonable doubt.

  As the Second Circuit recently held, Booker does not apply to cases on collateral review where the petitioner's conviction was final as of January 12, 2005, the date Booker was decided. See Guzman v. United States, ___ F.3d ___, 2005 U.S. App. LEXIS 5700 (2d Cir. Apr. 8, 2005). Because Yuzary's conviction became final on November 19, 2001, his argument that Booker applies retroactively to his § 2255 petition is without merit.


  For the reasons stated herein, the one-year period during which Yuzary would have filed a motion pursuant to 28 U.S.C. § 2255 began on November 19, 2001 and ended on November 19, 2002. Yuzary did not file the instant motion to vacate within that time, and his arguments for statutory and equitable tolling are without merit. Furthermore, assuming the motion was timely, his claims of ineffective assistance of counsel are without merit. Consequently, Yuzary's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is denied as untimely.

  In addition, because Yuzary has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000); Soto v. United States, 185 F.3d 48, 51-53 (2d Cir. 1997). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Opinion and Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 445 (1962).


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