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.
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 ...