United States District Court, N.D. New York
August 3, 2005.
JAMES T. NELSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: LAWRENCE KAHN, District Judge
MEMORANDUM-DECISION AND ORDER*fn1
Pro Se Petitioner James T. Nelson ("Nelson") moves pursuant
to 28 U.S.C. § 2255 to vacate and set aside his judgment or alter
his sentence following a conviction for violation of
18 U.S.C. § 922(g), Unlawful Possession of a Firearm by a Convicted Felon.
Pet.'s Motion (Dkt. No. 1); Resp.'s Memo. (Dkt. No. 4) at 3, Ex.
1. Nelson seeks relief, claiming that (1) counsel was ineffective
for preventing Nelson from testifying on his own behalf during
trial, (2) counsel was ineffective for failing to raise various
arguments to discredit the testimony of witness Richard Benitez
("Benitez"), and (3) the addition of two enhancements applied to
his sentence violated his Sixth Amendment right to a jury trial
under United States v. Booker, 125 S.Ct. 738 (2005). Pet.'s
Motion (Dkt. No. 1) at 5; Pet.'s Second Supp. Motion (Dkt. No. 9)
Nelson was convicted on February 16, 2000 after a jury trial,
of Unlawful Possession of a Firearm by a Convicted Felon,
18 U.S.C. § 922(g), and sentenced by this Court to one hundred twenty months in prison and three years supervised release.
Resp.'s Memo. (Dkt. No. 4) Ex. 5 at 1-3, Ex. 3 at 3. The sentence
included a two-level enhancement for obstruction of justice, a
four-level enhancement for using or possessing a firearm, and a
Criminal History Category of VI, Id. at 5-11, all of which were
challenged on appeal by Attorney Michael Desautels, who also
represented Nelson at trial. Pet.'s Motion (Dkt. No. 1) at 5. The
Second Circuit issued its mandate on March 23, 2001 rejecting
Nelson's sentencing challenges.*fn3 Nelson v.
United States, 7 Fed. Appx. 15 (2d Cir. 2001). Following that decision,
Nelson filed the instant petition on August 8, 2002, alleging
ineffective assistance of counsel. Pet.'s Motion (Dkt. No. 1) at
1. His first ineffective assistance claim alleged that his
attorney prevented him from testifying on his own behalf with a
threat that he would walk out in the middle of the trial. Pet.'s
Motion (Dkt. No. 1) at 4. His second ineffective assistance claim
alleged that his attorney failed to challenge the credibility of
the Government's primary witness Benitez. Id.
Almost two years later, on July 20, 2004, Nelson filed a
supplemental § 2255 motion to vacate and amend his sentence under
the recently decided Blakely v. Washington, 542 U.S. 296
(2004). Pet.'s First Supp. Motion (Dkt. No. 7) at 4.
Specifically, Nelson asserted that two enhancements applied to
him should have been deemed unconstitutional and his sentence
should have been reduced to within a range of sixty-three to
seventy-eight months. Id. The Court rejected that claim as
Blakely related to Washington's Sentencing Reform Act, and
denied Nelson's motion without prejudice to renew pending the
outcome in Booker. Nelson v. United States, No. 99-CR-184,
slip op. at 1-2 (N.D.N.Y. Aug. 12, 2004) (Dkt. No. 8). Once
Booker was decided, Nelson filed a second supplemental § 2255
motion to vacate and amend his sentence in accordance with that
case. Pet.'s Second Supp. Motion (Dkt. No. 9) at 1, 4.
I. Period of Limitation
A petitioner's collateral motion under 28 U.S.C. § 2255 is
subject to a one-year period of limitation as introduced in the
1996 Antiterrorism and Effective Death Penalty Act
("AEDPA").*fn4 28 U.S.C. § 2255. The AEDPA has been said to
provide a gate-keeping function in postconviction cases, "to
reduce the abuse of habeas corpus that results from delayed and
repetitive filing [while] preserving the availability of review when a prisoner diligently
pursues [those remedies available to him] and applies for federal
habeas review in a timely manner." Effective Death Penalty Act of
1995, H.R. REP. NO. 104-23, at 9 (1995). Ordinarily, as provided
in § 2255, the one-year limitation period begins to toll after a
petitioner's judgment becomes final. 28 U.S.C. § 2255. The
Supreme Court has defined "final", for postconviction relief
purposes, as (1) the date upon which a final decision is rendered
in the Supreme Court or court of last resort, (2) the date of
rejection of a petition for certiorari, or (3) "when the time for
seeking such review expires."*fn5 Clay v. United States,
537 U.S. 522, 532 (2003); Freeman v. United States, 2005 WL
1498289, at *2 (E.D.N.Y. June 17, 2005). Since Nelson did not
file a petition for certiorari after the Second Circuit's
judgment on his appeal on March 23, 2001, his deadline for filing
a timely § 2255 motion was June 21, 2002. SUP.CT. R. 13(1);
United States v. Nelson, 7 Fed. Appx. 15 (2d Cir. 2001);
Resp.'s Memo. (Dkt. No. 4) Ex. 8. Nelson's original § 2255 motion
would have been time-barred, as it was filed on August 8, 2002,
forty-eight days after the aforementioned deadline, Pet.'s Motion
(Dkt. No. 1) at 1; however, this Court granted Nelson a sixty-day
extension to file his motion in consideration of a delay in
filing the Second Circuit's certified mandate with the Northern
District. June 13, 2002 Order (Case No. 99-CR-184) (Dkt. No. 69).
A. Jurisdiction to Extend the Period of Limitation and
A district court does not have subject-matter jurisdiction to
grant an extension to the one-year period of limitation under § 2255 unless (1) the moving party
requests the extension upon or after filing an actual section
2255 motion, and (2) "rare and exceptional" circumstances warrant
equitably tolling the limitations period.*fn6 Green v.
United States, 260 F.3d 78, 82-83 (2d Cir. 2001); United States
v. Leon, 203 F.3d 162, 164 (2d Cir. 2000). Nelson's motion for
an extension did not articulate any cognizable claim under §
2255, Id. at 84, and no such claim was made until after the
extension was granted, Record of Case No. 99-CR-184 (Dkt. No.
69); however, because the doctrine of equitable tolling applies
here, Nelson's motion is not time-barred. To establish equitable
tolling, which applies only "in rare and exceptional
circumstance[s]," a petitioner must demonstrate that (1)
"extraordinary circumstances prevented him from filing his
petition on time" and (2) he has "acted with reasonable diligence
throughout the period he seeks to toll." Smith v. McGinnis,
208 F.3d 13, 17 (2d Cir. 2000) (citing Johnson v. Nyack Hosp.,
86 F.3d 8, 12 (2d Cir. 1996)). The Supreme Court, in Baldwin County
Welcome Center v. Brown, 466 U.S. 147 (1984) (citing Carlile v.
South Routt School District RE 3-J, 652 F.2d 981 (10th Cir.
1981)), implied that equitable tolling may be appropriate in
situations "where the court has led the plaintiff to believe that
she had done everything required of her." Brown,
260 F.3d at 151. Such events constitute an "extraordinary circumstance" as
contemplated in Smith. This was true in Davidson v.
United States, 2000 WL 1772656 (N.D.N.Y. Nov. 28, 2000) (McCurn, J.),
where equitable tolling was applied to a petitioner who relied to
his detriment on an assurance by the court that the AEDPA's
period of limitation did not apply to him. Id. at *1-2.
Similarly, Nelson relied first on a letter advising him that the limitation period had not yet tolled; then,
on this Court's assurance of a sixty-day extension when he filed
his § 2255 petition forty-eight days after the original deadline.
June 13, 2002 Order (Case No. 99-CR-184) (Dkt. No. 69); Pet.'s
Motion (Dkt. No. 1) at 1. Because he filed within the period
extended to him and submitted his motion for an extension before
the original deadline expired, Nelson exhibited reasonable
diligence within the period of equitable tolling now under
consideration. Davidson, 2000 WL 1772656 at *2; Green v.
United States, 260 F.3d at 86-87 (Kearse, J., dissenting in part
and concurring in the judgment) ("equity need not be formulaic"
but should be applied where petitioner filed an extension motion
before his deadline and was denied by an erroneous decision of
the court). Therefore, the Court recognizes Nelson's ineffective
assistance claims as timely.
B. Timeliness of Nelson's Supplemental Motion
Nelson's supplemental motion challenging the constitutionality
of his sentence under Booker was not submitted until February
2005, years after his original limitation period ended. Pet.'s
Second Supp. Motion (Dkt. No. 9) at 1. However, the limitation
period is suspended when a petitioner seeks to assert a right
that has been newly recognized by the Supreme Court.
28 U.S.C. § 2255(3). In such a case, the one-year period does not begin to
toll until that right is recognized by the Supreme Court if (1)
the Court announces a new rule, which (2) is made retroactively
applicable. Id.; Coleman v. United States, 329 F.3d 77, 82
(2d Cir. 2003).
The Supreme Court in Teague v. Lane, 489 U.S. 288 (1989),
held that a new rule of constitutional law will not be given
retroactive effect in cases on collateral review unless the rule
is substantive or is a "watershed" rule of criminal procedure and
affects "the fundamental fairness and accuracy of the criminal proceeding."*fn7 Saffle v. Parks,
494 U.S. 484, 494-495 (1990) (quoting Teague, 489 U.S. at 311;
Guzman v. United States, 404 F.3d 139, 141 (2d Cir. 2005)).
Several recent decisions in this circuit have held that, though
Booker announced a new rule of constitutional law,*fn8 it
is not retroactively applicable on collateral review. Guzman,
404 F.3d at 144; Green v. United States, 397 F.3d 101, 103 (2d
Cir. 2005); Barrett v. United States, 2005 WL 1520849 at *9
(N.D.N.Y. June 27, 2005) (McAvoy, J.). Though the result here is
that Nelson's Booker claim does not fall under § 2255(3), it is
unnecessary to decide the claim on timeliness grounds because he
has no recourse under that rule regardless of whether or not it
II. Failure To Raise the Issue on Direct Appeal
In its memorandum opposing Nelson's original § 2255 petition
alleging ineffective assistance of counsel, the Government
asserted that those claims were procedurally defaulted for failure to raise the issue on direct appeal. Resp.'s Memo. (Dkt.
No. 4) at 4. The Government relied on the "cause and prejudice"
test articulated in United States v. Frady, 456 U.S. 152
(1982), Wainright v. Sykes, 433 U.S. 72 (1977) and Davis v.
United States, 411 U.S. 233 (1973), which states that a
petitioner's failure to raise a claim on direct appeal is a
procedural default, barring him from raising the claim on
collateral review unless he can show cause excusing his
procedural default and actual prejudice resulting therefrom.
Resp.'s Memo. (Dkt. No. 4) at 4-5; Frady, 456 U.S. at 167-168;
Campino v. United States, 968 F.2d 187, 189 (2d Cir. 1992). Two
exceptions then existed to the cause and prejudice test for
ineffective assistance claims when (1) a petitioner was
represented on appeal by the same attorney that represented him
at trial; or (2) the claim was not solely based on the record
developed at trial. Billy-Eko v. United States, 8 F.3d 111, 115
(2d Cir. 1993); United States v. Wiggins, 971 F. Supp. 660
(N.D.N.Y. 1997) (McAvoy, J.). This set the groundwork for the
proposition that "the failure to treat ineffective assistance of
counsel claims on direct appeal . . . should not necessarily be
treated similarly to a failure to raise other constitutional
claims." Billy-Eko, 8 F.3d at 114. The Supreme Court extended
this proposition in Massaro v. United States, 538 U.S. 500
(2003), which abrogated the Billy-Eko test and removed the
procedural bar to any petitioner raising ineffective assistance
claims on collateral review. Massaro, 538 U.S. at 509. The
Supreme Court reasoned in Massaro that, in general, a § 2255
motion is preferable to direct appeal for deciding an ineffective
assistance claim because to require a petitioner to raise the
issue on direct appeal would restrict his ability to fully
"develop the factual predicate for the claim," Id. at 504; it
would also compel adjudication in "a forum not best suited to
assess those facts." Id. In view of Massaro, Nelson's
ineffective assistance claims were properly commenced as a § 2255
motion. III. Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution affords a
defendant the right "to have the Assistance of Counsel for his
defence." U.S. CONST. amend. VI. Strickland v. Washington,
466 U.S. 668 (1984) provides the appropriate test to determine
whether counsel's professional obligations to his client have
fallen short of that constitutional standard. Under the
Strickland test, a petitioner must establish that counsel's
performance fell below an objective standard of reasonableness
within the profession "and that this deficiency prejudiced his
defense". Purdy v. United States, 208 F.3d 41, 44 (2d Cir.
2000); Strickland, 466 U.S. at 687-688. Prejudice is shown when
"there is a reasonable probability that, but for counsel's
unprofessional performance, the outcome of the proceeding would
have been different." United States v. Gordon, 156 F.3d 376,
379 (2d Cir. 1998). "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Strickland,
466 U.S. at 694.
A. Preventing Petitioner From Testifying on His Own Behalf
Nelson asserts that his trial attorney prevented him from
testifying on his own behalf by threatening to "walk out in the
middle of the trial", Pet.'s Motion (Dkt. No. 1) at 5, and that
he would not have been convicted had he been given that
opportunity. Id. at 5. The Court, in deciding a § 2255 motion,
must hold a hearing "[u]nless the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief." 28 U.S.C. § 2255; see also Machibroda
v. United States, 368 U.S. 487, 495 (1962). While Nelson's
allegations are facially implausible considering the apparent
care with which his attorney has undertaken to represent him at
trial and on appeal, they cannot be conclusively determined by
the trial record and submissions. If true, Nelson may be entitled
to relief because he was denied his constitutional right to
testify on his own behalf. See Rock v. Arkansas, 483 U.S. 44, 49-51 (1987); Brown v.
Artuz, 124 F.3d 73, 74 (2d Cir. 1997). Even if this were the
case, however, it is clear that Nelson was not prejudiced by this
error for purposes of the second prong of the Strickland test.
On the subject of prejudice, the record is determinative because
it contains Nelson's proposed remarks as he would have
articulated them at trial. Resp.'s Memo. (Dkt. No. 4) Ex. 2 at
Essentially, Nelson contends that the testimonies of Benitez
and other Government witnesses were incredible; that these
stories were fabricated in order to satisfy a personal grudge
against him and that Benitez lied to protect himself. Id. at
22, 23, 26. Nelson also challenges the Government's contention
that a police officer saw him toss the firearm from his car
because the weapon was not found for four days, Id. at 21, 25,
and denies that he made any admission statements to the police.
Id. at 25. Nelson's proposed testimony "provided no evidence of
significance that is not wholly dependent on either his
credibility or the incredibility of the witnesses against him."
Rega v. United States, 263 F.3d 18, 22 (2d Cir. 2001). The jury
reached its verdict not only from Benitez' testimony but, inter
alia, from the testimony of police officers, ballistics reports
and statements made by Nelson himself. Record of Case No.
99-CR-184 (Dkts. No. 58-61). This evidence was ultimately found
by the jury to be credible. "Any probability of acquittal,
therefore, must be based on an assessment that, if [the
defendant] had testified, the jury would have credited his
testimony, notwithstanding the substantial evidence against him."
Rega, 263 F.3d at 22. The Court concludes that the jury would
not have credited Nelson's testimony in light of the substantial
evidence provided by the Government and the fact that Nelson's
attorney already covered many of these arguments throughout the
trial; those arguments not covered by Nelson's attorney do not hint to any factual support.*fn10 Moreover,
it is likely that Nelson's testimony would have injured his case
because of a previous outburst in the courtroom and his extensive
criminal record, which no doubt would have been explored through
cross-examination. Resp.'s Memo. (Dkt. No. 4) at 7, Ex. 2 at 18.
Nelson's testimony, therefore, would not have helped, but may
indeed have harmed his defense.
B. Failure to Raise Various Arguments to Discredit Benitez
Nelson asserts that his attorney was "ineffective for not
raising that the witness `Richard Benitez' testimony was
unreliable and . . . was lying to get his pending state case
dismiss[ed]." Pet.'s Motion (Dkt. No. 1) at 4. Without deciding
whether a failure to raise such an argument satisfies the first
prong of the Strickland test, the record conclusively shows
that Nelson's claim is untrue. Nelson's attorney aggressively and
repeatedly challenged Benitez' credibility throughout the trial.
During cross-examination, he asked several questions in attempt
to highlight Benitez' dishonesty and criminal history and reveal
a motive in avoiding prison. Record of Case No. 99-CR-184 (Dkt.
No. 60) at 123-151. Before the jury returned its verdict, he made
a motion pursuant to Federal Rule of Criminal Procedure 29 for
judgment of acquittal, on the theory that the Government rested
"almost exclusively on the testimony of Richard Benitez" and that
Benitez' testimony "was not worthy of belief as a matter of
law".*fn11 Record of Case No. 99-CR-184 (Dkt. No. 61) at
22-23. Nelson's attorney even raised these claims at the
sentencing hearing. Resp.'s Memo. (Dkt. No. 4) Ex. 2 at 10. Nelson's claim must therefore be dismissed.
For the foregoing reasons, it is hereby
ORDERED that Petitioner's motion to vacate, set aside, or alter
his sentence is DENIED; and it is further
ORDERED that Petitioner's motion for this Court to hold an
evidentiary hearing is DENIED; and it is further
ORDERED that the Clerk serve a copy of this Order on all
parties by regular mail.
IT IS SO ORDERED.