United States District Court, S.D. New York
August 12, 2005.
JOSE GARCIA, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: LAWRENCE McKENNA, District Judge
MEMORANDUM AND ORDER
The above petitioner, an alien, pleaded guilty on April 27,
2000 to a three-count information alleging violations of
18 U.S.C. § 1029, and was sentenced on November 27, 2000,
principally to 18 months of imprisonment, and given a date on
which to surrender to the facility designated by the Bureau of
Prisons, ultimately extended to January 22, 2001.*fn1 He did
not so surrender, but was apprehended in or about October of
2004, when a sealed indictment alleging the violation of
18 U.S.C. § 3146(a)(2) was unsealed; he pleaded guilty to that
indictment before another judge on December 16, 2004, and was
sentenced on April 8, 2005, principally to 12 months and a day of imprisonment, to be served
consecutively to the 18 month sentence.
Petitioner now seeks, pursuant to 28 U.S.C. § 2255, an order
setting aside the first conviction, on the ground that he pleaded
guilty as a result of the ineffectiveness of counsel, who advised
him, he alleges, that, if he pleaded guilty, "because [he] had
been a lawful permanent residen[t] for a considerable period, and
had significant family ties in the United States, a waiver would
likely be granted" (Pet. ¶ 3); that advice, he asserts, was
incorrect (id. ¶ 9 (citing United States v. Couto,
311 F.3d 179 (2d Cir. 2002)); and, he states, he became aware that the
advice was incorrect when, at the time of his plea of guilty in
the second case, the judge advised him of "the certainty of my
deportation." (Id. ¶ 4.)*fn2
The petition does not indicate whether or not either the
Immigration and Naturalization Service (or, now, Immigration and
Customs Enforcement) on the one hand, or petitioner, on the
other, has initiated any relevant proceeding regarding
The government contends that the petition is untimely. 2.
A motion under 28 U.S.C. § 2255 must be made within a year of
the latest of four specified dates, two of which might be argued
to apply here: "the date on which the judgment of conviction
becomes final" and "the date on which the facts supporting the
claim or claims presented could have been discovered through the
exercise of due diligence." 28 U.S.C. § 2255(1) & (4).
"[F]or purposes of [28 U.S.C.] § 2255 motions, an unappealed
federal criminal judgment becomes final when the time for filing
a direct appeal expires." Moshier v. United States,
402 F.3d 116, 118 (2d Cir. 2005) (per curiam). Here, the conviction
(which, as noted, was not appealed) became final on January 12,
2001, and, under 28 U.S.C. § 2255(1), the petition had to be
filed by January 12, 2002. (See Gov't Mem. at 5-6.) It was not
filed, however, until, at the earliest, May 20, 2005,*fn3
and is therefore untimely under 28 U.S.C. § 2255(1).
Under 28 U.S.C. § 2255(4), the one-year limitation period
begins to run on the date "when `the facts supporting the claim
or claims presented could have been discovered through the
exercise of due diligence.' This is so, moreover, regardless of
whether petitioner actually discovers the relevant facts at a
later date." Wims v. United States, 225 F.3d 186, 188 (2d Cir. 2000)
(footnote omitted) (quoting 28 U.S.C. § 2255(4) (emphasis added
in original)). That means that, if the relevant facts could have
been discovered prior to May 20, 2004, the petition is not
There is no indication from the petition or anything else
before the Court that shows that, in the almost three and a half
years between November 27, 2000, when petitioner was sentenced,
and May 20, 2004, petitioner could not, through the exercise of
due diligence, have discovered the facts on which the petition is
premised. He knew, of course, that he was an alien, he was aware,
as the petition shows, of whatever pre-plea discussions he had
with his counsel, he knew, or could have learned, from the
judgment of conviction (including, as a condition of supervised
release, that he "comply with all lawful directives of I.N.S."
(Gov't Mem., Ex. C., at 3)) that the government was aware of his
alien status, and he had plenty of time to take steps to inquire
into his immigration status. United States v. Couto, on which
he relies, was decided in November of 2002. Petitioner could,
through the exercise of due diligence, have ascertained the facts
and filed his petition well before May 20, 2004, and the petition
is therefore untimely under 28 U.S.C. § 2255(4).
Nor is petitioner entitled to equitable tolling. Mamaradlo v.
United States, No. 00 Civ. 2468, 2000 WL 633417 (S.D.N.Y. May 17, 2000) (declining, on facts similar to present
case, to apply equitable tolling).
* * *
For the reasons set forth above, the petition is dismissed as