The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
Before the Court is Jose Urena's petition to vacate, set aside
or correct his sentence pursuant to 28 U.S.C. § 2255 ("§ 2255").
For the reasons that follow, the petition is denied.
On February 22, 2000, Urena was convicted, following a jury
trial, of trafficking in narcotics and of conspiracy to traffic
in narcotics, in violation of Title 21 U.S.C. §§ 841, 846, and
851. Judge Schwartz*fn1 sentenced Urena to 270 months'
imprisonment on February 14, 2001. The judgment of conviction was
affirmed by the United States Court of Appeals for the Second
Circuit, and Urena's application for a writ of certiorari was
denied on June 28, 2002.
Urena filed the instant motion on July 14, 2003, claiming (1)
that the District Court lacks jurisdiction to impose a sentence
in this case under 21 U.S.C. § 851 or under § 4B1.1 of the United
States Sentencing Guidelines, and (2) that his trial and
appellate counsel were ineffective. The Government, however,
urges the Court to dismiss the petition as untimely, because
Urena filed the petition after the expiration of the one year
limitations period established by the Antiterrorism and Effective
Death Penalty Act ("AEDPA"). In reply, Urena argues that his counsel is responsible for his
untimeliness, and that the limitations period should be tolled
because "his counsel deceived him about when the certiorari
petition was denied." Pet. Brief at 3. Urena states that,
sometime between November and December of 2002, he asked his
appellate attorney who was no longer representing him when
his petition for certiorari had been denied. Urena contends that
the attorney informed him that he was "pretty sure" that the
certiorari was denied "sometime around July or August," but that
he would have to look in petitioner's file which had been put
away as a closed case. In January 2003, Petitioner inquired again
of the attorney whether he had found the proof of the denial of
certiorari, and the attorney then stated he was "sure" it was in
mid-August 2002, but he "would send petitioner a copy of its
proof" as soon as possible. Petitioner did not hear back from the
attorney again, and, deciding that he wanted to be on the "safe
side," he prepared and filed his § 2255 petition "before the
August date." It was not until July 21, 2003, that petitioner
received proof from the attorney that his petition for certiorari
was denied on June 28, 2002, and printed in the August 2002
Lawyers Edition publication of Supreme Court decisions. See
Affidavit of Jose Urena, dated September 1, 2003 ("Urena Aff."). Legal Standards
Section 2255 allows one year from the date a judgment of
conviction becomes final for a defendant to file a motion to
vacate, set aside, or correct a sentence. See 28 U.S.C. § 2255.
That one-year limitations period may be subject to equitable
tolling. See Smith v. McGinnis 208 F.3d 13, 17 (2d Cir.
2000). Equitable tolling only applies, however, in "the rare and
exceptional circumstance?" where a petitioner can show that
"extraordinary circumstances prevented him from filing his
petition on time." Id. (alteration in original). This circuit,
along with others, has found attorney error inadequate to create
the "extraordinary" circumstances equitable tolling requires.
Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (citing
decisions of the Third, Seventh, and Eleventh Circuits). See
also Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir.
2003) ("[A]ttorney error normally will not constitute the
extraordinary circumstances required to toll the AEDPA
limitations period . . . [but,] at some point, an attorney's
behavior may be so outrageous or so incompetent as to render it
extraordinary." (emphasis in original)).
"The presence of extraordinary circumstances is not enough,
however, to justify the application of equitable tolling. A
petitioner must also show that he acted with reasonable
diligence, and that the extraordinary circumstances caused his petition to be untimely." Baldayaque, 338 F.3d at 153 (citing
Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001));
see Smith 208 F.3d at 17 ("[A petitioner] seeking equitable
tolling must have acted with reasonable diligence throughout the
period he seeks to toll.").
Because Urena's petition for a writ for certiorari was denied
on June 28, 2002, the AEDPA statute of limitations expired on
June 28, 2003. Urena's filing of the instant motion on July 14,
2003, was thus outside the limitations period, and Urena has not
proven circumstances that would warrant equitable tolling.
Whether or not Urena's former appellate counsel deceived Urena
is debatable. Urena's affidavit makes it clear that the attorney
was not sure of the exact date certiorari was denied, and there
is nothing in the record to show deliberate deception. See
Urena Aff. Rather, the attorney gave Urena erroneous
approximations of when he believed certiorari had been denied.
The attorney never gave Urena an exact date, and this should have
put Urena on notice that the approximations were not necessarily
accurate. Furthermore, the attorney did not draft or in any other
way assist Urena with the § 2255 petition. Urena was solely
responsible for his pro se petition, and therefore should have
made a personal effort to learn the exact date his conviction
became final. Urena erroneously relies on Baldayaque v. United States,
338 F.3d 145 (2nd Cir. 2003), to support his claim that attorney
error warrants equitable tolling of the otherwise expired statute
of limitations. In Baldayaque, the petitioner's attorney failed
to conduct any legal research on the case, and never spoke to, or
even met the petitioner. Id. at 152. The attorney also failed
to file a § 2255 petition on the petitioner's behalf even though
he was specifically directed to do so. Id. The court held that
attorney conduct may constitute "extraordinary circumstances if
the conduct is sufficiently egregious, and that the conduct
Baldayque described was "far enough outside the range of behavior
that reasonably could be expected by a client that [it] may be
considered extraordinary." Id. at 152-53. The court then
remanded the case for findings as to whether the petitioner could
show that he had acted with reasonable diligence and that the
extraordinary circumstances caused his petition to be untimely.
Id. at 153.
Here, Urena's former appellate counsel erred as to when the
conviction became final. This attorney conduct does not
constitute behavior so far outside the range of what may
reasonably be expected that it rises to the level of
extraordinary circumstances to merit equitable tolling.
Assuming, arguendo, that Urena's former appellate counsel's
conduct was sufficiently egregious to warrant equitable tolling, Urena would still have to prove that he acted with reasonable
diligence, and that the extraordinary circumstances prevented him
from filing his petition on time. However, Urena made only two
attempts to discover, from his former appellate counsel, the date
of the denial of certiorari. The record does not reflect that
Urena followed up on his inquiries, or took advantage of
available alternative methods to assure himself of the exact
date. Thus, Urena did not act with reasonable diligence
throughout the period he seeks to toll.
Even if the Court were to accept petitioner's claim as to
diligence, which the Court is not inclined to do, Urena cannot
prove that the attorney error caused Urena to file in an untimely
manner. Urena obtained the erroneous information from his
attorney in January 2003 at least five months before the June
28 deadline and thus had sufficient time to prepare and file
his petition. Urena was not depending on his counsel to file his
petition as was the petitioner in Baldayaque; he simply relied
on incorrect information. Conclusion
The petitioner cannot establish that there were exceptional
circumstances that prevented him from filing on time or that he
diligently pursued his claim. Therefore, Urena's § 2255 petition
is dismissed as untimely. The Court orders this case closed, ...