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
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 ...