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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 ...

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