United States District Court, S.D. New York
June 7, 2005.
JAMIE MORALES, Petitioner,
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.
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, acting with reasonable diligence, could have
filed on time notwithstanding the extraordinary circumstances."
Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001)
(internal quotation marks and citation omitted).
On October 6, 2003, shortly before the expiration of the period
within which he may have properly filed his petition, Morales
moved for an extension on the grounds that: 1) he suffered from
depression; 2) he was consuming psychotropic medication "during
the trial and other crucial phases of the case"; 3) he was
impoverished and unable to purchase a trial transcript or hire an
attorney; 4) his trial counsel did not inform him of the
possibility of bringing a petition pursuant to 28 U.S.C. § 2255;
and 5) his primary language is Spanish. (See Brief in Supp. of
Def.'s Mot. to Enlarge Time to File a Motion Under
28 U.S.C. § 2255 at 6).
Morales has not made a sufficient showing to justify equitable
tolling on the grounds that his depression and consumption of
drugs interfered with his cognition. In his declaration, Morales
asserts that during the pendency of this matter he has suffered
from major depression and taken Sevzone and Celexa, psychotropic
medications. (Morales Declaration-Petition in Supp. of Mot. to
Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255
and/or Motion for a new trial Under Fed.R.Crim.P. 33 ("Morales
Decl.") ¶ 3k(iii)). He claims that "[a]t various . . . times
while taking Sevzone and/or Celexa, including during the
progression of my case, I have experienced feelings of confusion, nervousness, and
drowsiness, all adverse reactions to Sevzone and/or Celexa."
(Id. ¶ 3k(vii)). As a result, he claims that he was "not
competent during the proceedings." (Id. ¶ 4).
These claims lack substantiation. Morales fails to point to any
support for his bald assertion that he suffered cognitive
impairment. In addition, Morales has failed to ground his claim
in the relevant temporal terms; he does not specifically claim to
have been consuming any drugs or suffering from depressive
symptoms during the period in which he should have filed his
petition. See Jean-Louis v. Greiner, No. 02 Civ. 6326, 2003
WL 1807144, at *3 (S.D.N.Y. Apr. 4, 2003). Even if Morales
experienced depression or consumed drugs during the relevant time
period, he has not adequately alleged that he was unable even
with the exercise of reasonable diligence to file a petition
during that time period. See Cox v. Edwards, No. 02 Civ.
7067, 2003 WL 22221059, at *3 (S.D.N.Y. Sept. 26, 2003) (no
equitable tolling for prisoner who suffered from Grave's disease,
as well as mood and paranoia swings and who had been repeatedly
hospitalized and provided medication); Jean-Louis, 2003 WL
1807144, at *3 (long history of mental illness and placement in
psychiatric units before the limitations period did not establish
extraordinary circumstances during limitations period).
The evidence in the record sharply controverts Morales'
unsupported claims that he has been hindered by significant
cognitive impairment. Morales has submitted a letter from his
physician, Dr. Claudio Dicovskiy, indicating that Morales "showed
no Psychotic symptoms" and that his "thinking was free of any
delusional content or thought." (Letter of Claudio Dicovskiy,
M.D., dated May 24, 2001). The physician further commented that
Morales' "insight and judgment seemed good" and that he "does not
seem to show any sign of serious Mental Illness." (See id.).*fn2 The affidavits of Miles Feinstein
Morales' pre-trial and first post-trial attorney and Rick
Garcia Morales' trial attorney provide additional evidence of
Morales' significant cognitive capacity. Feinstein explained that
"I have been practicing law since 1967 and I venture to say that
I met with Mr. Morales and his family as many or more times than
any client I have represented." (Aff. of Miles Feinstein dated
April 8, 2005 ¶ 6). Feinstein attested to the fact that Morales
"had the ability to and did consult with me with a rational and
factual understanding of the proceedings against him." (Id. ¶
2). Feinstein also wrote that Morales "conversed with me about
all aspects of his case and asked relevant questions, which I
answered and he appeared to understand." (Id.). Garcia commented that Morales "seemed to
comprehend what was going on. . . ." (Aff. of Rick Garcia dated
April 11, 2005 ¶ 4).
In light of the considerable record evidence of Morales' proper
cognitive functioning, his vague, unsupported allegations of
mental impairment do not justify equitable tolling. Moreover,
those allegations are not grounded in the proper time period
the year after his conviction became final. Specifically, he
claims that he was consuming drugs "[t]hroughout the tenure of
this instant case," without specifying if that period included
the year following his conviction. (Morales Decl. ¶ 3k(iii)).
Even if credited, Morales' allegations do not demonstrate that he
would have been unable to file a petition had he acted with
reasonable diligence. See Baldayaque v. United States,
338 F.3d 145, 153 (2d Cir. 2003).
The other grounds that Morales has asserted as a basis for
equitable tolling do not constitute the sort of extraordinary
circumstances in which it is appropriate to toll the Section 2255
statute of limitations. Claims of inability to retain an
attorney, see Smith, 208 F.3d at 18, trouble with English,
see Silvestre v. United States, 55 F.Supp. 2d 266, 268
(S.D.N.Y. 1999), ignorance of the law, see Ayala v. Fischer,
No. 04 Civ. 3404, 2004 WL 2435523, at * 1 (S.D.N.Y. Nov. 2,
2004), and difficulty obtaining documents, see Hardy v.
Conway, 299 F. Supp. 2d 159, 161 (E.D.N.Y. 2004), do not,
without more, warrant tolling.
In sum, Morales has failed to allege that he encountered
extraordinary circumstances that would justify equitable tolling.
A factual hearing is unnecessary, because "[t]he motion and the
files and records of the case conclusively show that the
petitioner is entitled to no relief. . . ." 28 U.S.C. § 2255.
Morales' Motion to Enlarge Time to File under 28 U.S.C. § 2255 is
denied, and his petition pursuant to Section 2255 is dismissed as
B. Morales Had Waived His Right to Bring a Petition Even were Morales' petition timely, it would nonetheless be
barred by his knowing and voluntary waiver of his right to attack
his sentence collaterally. Such waivers are generally
enforceable. See, e.g., Frederick v. Warden, Lewisburg Corr.
Facility, 308 F.3d 192, 195-96 (2d Cir. 2002); Garcia-Santos v.
United States, 273 F.3d 506, 509 (2d Cir. 2001) (per curiam);
Ramos v. United States, No. 97 Civ. 7066, 98 Cr. 828, 1998 WL
60941, at *5 (S.D.N.Y. Feb. 13, 1998) (enforcing a waiver of the
right to bring a Section 2255 petition contained in a sentencing
agreement). Waivers of collateral attack rights are
unenforceable, however, when entered into with ineffective
assistance of counsel, see Frederick, 308 F.3d at 195; see
also United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir.
2001), or when they are not knowing and voluntary, see United
States v. Martinez-Rios, 143 F.3d 662, 668 (2d Cir. 1998).
The Sentencing Agreement Morales signed contained the following
It is further agreed . . . that the defendant will
neither appeal, nor otherwise litigate under Title 28
United States Code, Section 2255, any sentence within
or below the Stipulated Guidelines Range set forth
above. . . . This provision is binding on the parties
even if the Court employs a Guidelines analysis
different from that stipulated to herein. This
provision is binding on the parties regardless of the
result of any litigation in the District Court
relating to any motion by the defendant for a
downward departure based on extraordinary family
circumstances, aberrant conduct and/or the totality
of the circumstances.
(SA at 4). The terms of that provision bar Morales from bringing
the instant petition.
Morales contends that he cannot be held to the terms of the
Sentencing Agreement because he did not execute the agreement
knowingly and voluntarily and because he received ineffective
assistance of counsel. However, he provides no specific
allegations to support that claim and has failed to make any
showing whatsoever that his waiver of his right to bring a
petition pursuant to 28 U.S.C. § 2255 was not knowing and
voluntary. Rather, the record contains considerable support for the
conclusion that Morales intentionally and knowingly acceded to
the terms of the Sentencing Agreement in order to benefit from
the favorable sentencing terms the government offered in that
agreement. That Morales was cognizant of the terms of his bargain
with the government is supported by the facts that Morales signed
the Sentencing Agreement, that he stated under oath at his
sentencing that he had received the sentencing materials which
included the Sentencing Agreement and had discussed them with
his attorney (Tr. of Sept. 26, 2002 Sentencing Hr'g at 4) and
that his attorney confirmed that (id.). As set forth more fully
below, the record demonstrates that Morales, in consultation with
his attorney, made the strategic decision to forgo certain rights
in exchange for the government's corresponding willingness to
agree to favorable sentencing terms that would be presented to
The court's confidence that Morales forfeited his rights
knowingly and voluntarily is not now undermined by his vague
assertions that his cognitive capacity was diminished
"[t]hroughout the tenure of this instant case. . . ." (Morales
Decl. ¶ 3k(iii)). As noted above, evidence in the record belies
Morales' generalized, unsupported claims. In light of the
substantial, cogent record evidence of Morales' proper cognitive
functioning, as well as the Court's observation of Morales during
all court proceedings in this action, the Court finds Morales'
allegations insufficient to raise a material issue regarding
whether he knowingly and voluntarily waived his right to bring a
Section 2255 petition.
Morales has also failed to establish that he was denied
effective assistance of counsel when waiving his right to bring a
petition pursuant to Section 2255. Ineffective assistance of
counsel entails "(1) that counsel's performance `fell below an
objective standard of reasonableness,' and (2) that there is a
`reasonable probability' that, but for the deficiency, the outcome of the proceeding would have been different." McKee v.
United States, 167 F. 3d 103, 106 (2d Cir. 1999) (quoting
Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984)) (citations omitted). Nothing in the
record supports a showing pursuant to either prong of the
Morales has failed to show that his trial counsel did not
perform in accordance with an objective standard of
reasonableness. Morales cannot overcome the "`strong presumption
that counsel's conduct falls within the wide range of reasonable
professional assistance.'" Cox v. Donnelly, 387 F.3d 193, 198
(2d Cir. 2004) (quoting Strickland, 466 U.S. at 689); United
States v. Jones, 918 F.2d 9, 12 (2d Cir. 1990). Morales has
offered little more than "hindsight to second-guess his
[counsel's] strategy choices." Mayo v. Henderson, 13 F.3d 528,
533 (2d Cir. 1994).
It was prudent for Morales' counsel to advise acceptance of the
Sentencing Agreement which included the waiver of the right to
bring a Section 2255 petition because it provided Morales
highly favorable sentencing terms. Morales ultimately received a
sentence principally of 63 months incarceration, just above half
of the statutory mandatory minimum of 120 months. Given the
strength of the government's case against Morales and the
weakness of Morales' post-trial motion, Morales has no viable
claim that his attorney's acceptance of that agreement was
objectively unreasonable. See McKee, 167 F. 3d at 106.
Morales also cannot show prejudice. "[T]o establish prejudice,
a `defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.'" Wiggins v. Smith,
539 U.S. 510, 534, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (quoting
Strickland, 466 U.S. at 694). In light of the government's
substantial proof and the favorable terms of the Sentencing
Agreement, Morales can only show a reasonable probability that the outcome might have been more
adverse to him had he not acceded to the Sentencing Agreement.
Morales has failed to assert a colorable claim that his waiver
of his right to bring a petition pursuant to Section 2255 was
anything but knowing and voluntary or that he received
ineffective assistance of counsel in connection with that waiver.
The Court will hold Morales to his bargain and preclude his
motion pursuant to Section 2255. The Court need not address the
merits of the petition. See Latham v. United States,
164 F.Supp. 2d 365, 366 (S.D.N.Y. 2001).
C. Forfeiture of the Rule 33 Motion
Fed.R.Crim.P. 33(b)(1) provides that a defendant may bring a
motion for a new trial grounded on newly discovered evidence
within three years of the verdict. Morales contends that the
information that a portion of Lara's testimony was untruthful
constitutes newly discovered evidence. Morales' motion is denied,
both because it is untimely and because it is barred by the
Morales brought this motion one day after the expiration of the
three-year period that Rule 33(b)(1) provides. The verdict was
rendered on March 7, 2001 and Morales filed this motion on March
8, 2004. Morales has proffered no justification for the late
filing. He has known about the purportedly new evidence since the
government's letter of July 9, 2001.
If timely, Morales' motion for a new trial would nevertheless
be precluded by the Sentencing Agreement. Relying on the
government's July 9, 2001 disclosure regarding Lara's testimony,
Morales brought a post-trial motion for dismissal of the
indictment or for a new trial. Morales withdrew that motion in
contemplation of the government accepting the terms of the
Sentencing Agreement. (SA at 1; Tr. of April 3, 2002 conference
at 2-4). The Sentencing Agreement specifically provided that the withdrawal of Morales'
post-trial motion was with prejudice. (SA at 1).
Morales alleges that his withdrawal of the post-trial motion
was not made knowingly and voluntarily, and that it was made with
ineffective assistance of counsel. (Morales Decl. ¶¶ 3m,
3k(viii), 4). However, once again Morales fails to support his
bald assertions. The record confirms that Morales, in
consultation with his attorney, made the strategic, knowing and
voluntary choice to withdraw his motion so that he and the
government could jointly present favorable sentencing terms to
Morales made the reasoned decision to withdraw his post-trial
motion upon the sound tactical advice of his first post-trial
attorney, Miles Feinstein, who submitted an affidavit that
explains as follows:
Regarding the withdrawal of the motion to dismiss the
indictment based on prosecutorial misconduct, or in
the alterative, for a new trial, Mr. Morales once
again had a complete understanding. He was told that
there was no guarantee that the motion would be
granted and if it was, he would most likely have to
have to stand trial again. He had already been
convicted by a jury and his guidelines and exposure
was extremely high. All of this was explained and he
clearly understood. At sentencing, he received a
considerable break, and I believe that the Court
granted a downward departure. He conveyed to me that
he was very pleased with the result, as he should
have been. Some members of his family were elated
with the ultimate sentence and thanked me for my
efforts and the result.
(Feinstein Aff. ¶ 4). Morales' vague, unsupported claims of
cognitive impairment are insufficient to draw the knowing and
voluntary nature of the withdrawal into question.
Morales has also failed to raise a colorable claim of
ineffective assistance of counsel in relation to the withdrawal
of his post-trial motion. The record demonstrates that the
withdrawal was a strategic decision made to induce the government
to enter into the Sentencing Agreement. Given the strength of the
government's case and the favorable terms of the Sentencing Agreement, it was not objectively unreasonable for Feinstein to
withdraw Morales' post-trial motion.
In addition, Morales cannot show prejudice resulting from his
agreement to withdraw the post-trial motion. The Court commented
at the sentencing that the post-trial motion was unlikely to be
successful. (Tr. of Sept. 26, 2002 Sentencing Hr'g at 22). Even
if Morales had been granted a new trial, there is no reason to
think the result would have been different. The evidence against
Morales at the first trial was substantial. In consideration of
the weakness of the post-trial motion, the strength of the
government's case and the favorable terms of the Sentencing
Agreement, Morales cannot show prejudice from the decision to
withdraw his post-trial motion.
The record belies Morales' unsupported claims that the
withdrawal of his post-trial motion for a new trial stemmed from
a lack of proper cognitive functioning and ineffective assistance
of counsel. Morales is held to the terms of the Sentencing
Agreement, which preclude him from raising his motion for a new
Because Morales knowingly waived his right to collaterally
attack his sentence and because he has failed to act in a timely
manner, his petition pursuant to 28 U.S.C. § 2255 is dismissed.
Morales' untimely motion for a new trial pursuant to
Fed.R.Crim.P. 33 is denied, because he knowingly and voluntarily
withdrew that motion with prejudice in order to realize the
benefit of the Sentencing Agreement.
As Morales 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). Finally, pursuant to 28 U.S.C. § 1915(a)(3), the
Court certifies that any appeal from this Order would not be
taken in good faith. See Coppedge v. United States,
369 U.S. 438, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).