United States District Court, S.D. New York
April 20, 2005.
HAIM YUZARY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge
OPINION AND ORDER
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
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
The limitation period shall 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.
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
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
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
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
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
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
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
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
IT IS SO ORDERED.