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MORALES v. U.S.

June 7, 2005.

JAMIE MORALES, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.



The opinion of the court was delivered by: SIDNEY STEIN, District Judge

OPINION & ORDER

Jamie Morales brings a petition to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 and a motion for a new trial pursuant to Fed.R.Crim.P. 33. On March 7, 2001, a jury found Morales guilty of conspiring to distribute heroin in violation of 21 U.S.C. § 846. Morales' petition pursuant to Section 2255 is dismissed on the grounds that it is untimely and is barred by Morales' knowing and voluntary waiver of the right to attack his sentence collaterally. Morales' motion for a new trial pursuant to Fed.R.Crim.P. 33 is denied on the grounds that it is untimely and that Morales previously knowingly and voluntarily withdrew that motion in order to realize the benefit of a sentencing agreement he had entered into with the government.

I. Background

  Substantial evidence at trial showed that Jaime Morales agreed to receive and deliver heroin on behalf of a Columbian narcotics distributor. Among the several witnesses against Morales was Marino Lara, a paid informant for the Drug Enforcement Administration ("DEA"). On cross-examination, defense counsel elicited testimony from Lara that suggested that working as a DEA informant was an easy way to make money. (See Trial Tr. 237-38). On re-direct examination, the government endeavored to rebut that impression by questioning Lara regarding an incident that demonstrated how challenging that work was. The incident, which was not directly related to the charges against Morales, involved Lara being kidnapped and robbed of $12,000 while doing undercover work. (See Trial Tr. 360-61).

  Approximately four months after Morales' conviction, the Assistant United States Attorneys who had prosecuted Morales (the "trial AUSAs") wrote to the Court that they had learned that Lara had testified falsely regarding certain details of the kidnapping and robbery. (See Letter of Diane Gujarati and Christopher Morvillo to the Court dated July 9, 2001). Several months prior to the Morales trial, in a proffer session conducted by Assistant United States Attorneys for the Southern District of New York other than the trial AUSAs, a putative cooperating defendant discussed the kidnapping and robbery of Lara. (Id. at 2). That individual claimed that he and others kidnapped Lara and stole a safe containing $60,000 from him. (Id.). In another proffer session that occurred a month after the end of the Morales trial, the putative cooperator mentioned that the safe also contained approximately half an ounce of cocaine and some paperwork. (Id.). The trial AUSAs learned of these proffer session after the Morales trial had ended. (Id.). They confronted Lara, who insisted that the account he had told at trial was accurate. (Id.). On June 5, 2001, another of Lara's kidnappers engaged in a proffer session with the government and also mentioned the theft of a safe containing $60,000 and cocaine. (Id.).

  As a result of the government's disclosure, the defendant moved for dismissal of the indictment or, in the alternative, for a new trial. After negotiations with the government, the defense withdrew that motion on April 3, 2002 in contemplation of completing a Sentencing Agreement that the parties were in the process of negotiating. (See Tr. of April 3, 2002 conference at 2-4; Sentencing Agreement dated May 2, 2002 ("SA") at 1). Approximately six months later, on September 25, 2002, the parties executed the Sentencing Agreement in reliance on the fact that Morales had withdrawn with prejudice his pending motion for dismissal of the indictment or for a new trial. (See SA at 1).

  The Sentencing Agreement reflected the joint position of the parties that Morales should not be sentenced by the Court in compliance with the statutory mandatory minimum term of 120 months imprisonment, but rather that he qualified for "safety valve" treatment pursuant to 18 U.S.C. § 3553(f). Accordingly, in the Sentencing Agreement, the parties agreed to the following determinations pursuant to the United States Sentencing Guidelines: the appropriate adjusted offense level was 28, the criminal history category was I and the sentencing range was 78 to 97 months imprisonment. The stipulated base offense level was 34, but the parties agreed to a two level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1, a two level reduction for satisfaction of the safety valve criteria pursuant to U.S.S.G. § 2D1.1 (b), a two level reduction for the defendant's acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 and a four level reduction for Morales' minimal role pursuant to U.S.S.G. § 3B1.2(a). The Sentencing Agreement also permitted the defendant to move for a downward departure on the grounds of extraordinary family circumstances and aberrant conduct.

  The Court sentenced Morales on September 26, 2002. Early in the hearing, the Court engaged the defendant in the following colloquy regarding the materials relevant to his sentencing, including the Sentencing Agreement:
THE COURT: Mr. Morales, have you had an opportunity to read and discuss this information with your attorney?
THE DEFENDANT: Yes, sir.
THE COURT: Have you, in fact, read and discussed it with [your attorney] Mr. Feinstein?
THE DEFENDANT: Yes, Sir.
(Tr. of Sept. 26, 2002 Sentencing Hr'g at 4). Later in the hearing, the Court specifically commented that the Sentencing Agreement reflected a bargain favorable to the defendant: THE COURT: Well, I'll talk quite specifically about that agreement, since you're focusing my attention on it or asking me to respond.
 
Overall, I think that agreement was given the guidelines calculations prior to the agreement and the fact that the pending motion, in my view, was not likely to succeed, I think that the agreement overall is very good for the defendant. And I think, in part, it reflects an understanding by the government of your position on how you characterize the defendant as a person and his law-abiding life, and so forth.
In other words, I think the government was assisting the defense or was being — I won't say generous, but I think this was a good agreement for the defense.
(Id. at 22). Toward the end of the hearing, the Court ensured that Morales understood his appeal rights and that he had waived them in the Sentencing Agreement. That interchange was as follows:
THE COURT: I also wish to inform you that in the agreement you signed on May 2 of this year, or actually — I'm sorry — the agreement that you signed on September 25, that is dated May 2, states that you are waiving your right to appeal the sentence if I sentence you within or below the guideline range of 78 to 97 months. And I have done that.
Do you understand the waiver of that part of your appeal rights?
THE DEFENDANT: Yes.
THE COURT: If you request, sir, the clerk of court will prepare and file a notice of appeal on your behalf immediately. Do you understand your appeal rights in general, sir?
THE DEFENDANT: Yes.
(Id. at 32).

  The Court adhered to the stipulated adjusted offense level, but included an additional two level departure pursuant to U.S.S.G. § 5K2.0 on the grounds of a combination of aberrant behavior and extraordinary family circumstances. (See Tr. of Sept. 26, 2002 Sentencing Hr'g at 26-28). Even though the parties' Sentencing Agreement provided for an adjusted offense level of 28 and a stipulated sentencing range of 78 to 97 months, the Court arrived at an adjusted offense level of 26 and a sentencing range of 63 to 78 months. The Court sentenced the defendant principally to 63 months of incarceration. II. Analysis

  Morales challenges his conviction and sentence on the following grounds: (1) that the withdrawal of his motion to dismiss the indictment or for a new trial was not made knowingly and intelligently; (2) that he received ineffective assistance of counsel; (3) that his sentence violated the requirements of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); and (4) that the admission into evidence of the guilty pleas of non-testifying co-conspirators did not comply with the rule of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.2d 177 (2004). In addition, as noted, Morales has moved for a new trial pursuant to Fed.R.Crim.P. 33 on account of newly discovered evidence.

  A. The Petition Is Untimely

  Morales' petition pursuant to 28 U.S.C. § 2255 is dismissed because it is untimely. A Section 2255 petition must be filed within one year of the date on which a defendant's conviction becomes final. Judgment against Morales was entered on October 1, 2002, and his conviction became final on October 11, 2002, when his time to file a notice of appeal pursuant to Fed.R.App.P. 4(b) expired. See Moshier v. United States, 402 F.3d 116 (2d Cir. 2005).*fn1 To be timely, Morales' petition would have to have been filed by October 11, 2003. It was not in fact filed until March 8, 2004, five months after the deadline.

  Despite his late filing, Morales contends that his petition should be treated as timely because he merits equitable tolling. A petition may be brought after the expiration of the one year period that Section 2255 prescribes if the petitioner can show the "`rare and exceptional circumstance?'" that prevents a petitioner from filing a timely petition. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (citations omitted and alteration in original). The party invoking the doctrine must demonstrate that he "acted with reasonable diligence throughout the period he seeks to toll." Id. That is because to merit tolling, a "petitioner must demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, ...


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