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