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United States District Court, S.D. New York

August 23, 2005.

ALDO MITCHELL, Petitioner,

The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge


Before the Court is the petition of Aldo Mitchell ("Mitchell") to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255. For the reasons that follow, the petition is dismissed as untimely.


  Mitchell was charged in Counts One, Two, Four, Five, Six, Seven, Eight, and Ten of a superseding twelve-count indictment filed on January 12, 2000.

  Count One charged Mitchell and others with conducting and participating in the affairs of a racketeering enterprise, namely, the "148th Street Organization" from the late 1980's through June 1999, through a pattern of racketeering activity that included murders, attempted murders, robberies, extortion and narcotics offenses, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c). Count Two charged Mitchell and others with RICO conspiracy, in violation of 18 U.S.C. § 1962(d).

  Counts Four through Eight charged Mitchell and others with various offenses in connection with a July 4, 1997 attempted robbery and shooting of Eric Connor, a drug dealer. Count Four charged the defendants with assault with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C §§ 1959(a)(3) and 2. Count Five charged the defendants with attempted murder in aid of racketeering, in violation of 18 U.S.C. §§ 1959(a)(5) and 2. Count Six charged the defendants with conspiracy to commit robbery, in violation of 18 U.S.C. § 1951. Count Seven charged the defendants with attempted robbery, in violation of 18 U.S.C. §§ 1951 and 2. Count Eight charged the defendants with using and carrying a firearm in connection with a crime of violence, in violation of 18 U.S.C §§ 924(c) and 2.

  Count Ten charged Mitchell and others with conspiring to distribute and to possess with intent to distribute cocaine and cocaine base ("crack") from the late 1980's through June 1990, in violation of 21 U.S.C. §§ 812, 841(b)(1)(A) and 846.

  On July 28, 2000, after an eleven-week trial, a jury convicted Mitchell on Count Two (RICO conspiracy) and Counts Six and Seven (conspiracy to commit robbery and attempted robbery).*fn1 The jury failed to reach a verdict on Counts One, Four, Five and Ten and acquitted Mitchell on Count Eight. On March 26, 2001, the Court sentenced Mitchell to a total of 360 months in prison, to be followed by three years' supervised release. The Court of Appeals for the Second Circuit affirmed Mitchell's conviction on November 21, 2002. United States v. Mitchell, 51 Fed. Appx. 355 (2d Cir. 2002). Mitchell's co-defendant, Irving Mason, was convicted on the same day of several counts in the indictment. The Court sentenced Mason to thirty years' imprisonment as well. See Mason v. United States, No 04 Civ. 2198(JFK), 2005 WL 1902776 at *1 (S.D.N.Y. Aug. 9, 2005). The Court of Appeals affirmed Mason's conviction in Mitchell, cited in the preceding paragraph. Mason petitioned the Supreme Court of the United States for a writ of certiorari. The Court denied the petition on March 24, 2003. Mason v. United States, 538 U.S. 939 (2003). Mason's certiorari petition is important for reasons that soon will become clear.

  Mitchell sent a letter to this Court dated December 13, 2003, requesting that counsel be appointed to assist him with respect to the viability and advisability of filing a § 2255 motion. (London Aff., Exh. A). On January 7, 2004, the Court assigned James Roth, Esq. as counsel to Mitchell under the Criminal Justice Act ("CJA"). On June 15, 2004, Mr. Roth informed the Court that he was required to withdraw from the case because of a conflict. (Id., Exh. C). By Order dated June 30, 2004, the Court assigned Joyce London, Esq. as Mitchell's new CJA counsel. Mr. Roth notified Mitchell of his withdrawal as counsel by letter dated July 29, 2004. (Id., Exh. D).

  Ms. London claims that she tried to gather information about Mitchell's case during July and August 2004, but without success. (Id. ¶ 12-13). On August 3, 2004, the Court's Deputy faxed Ms. London, at her request, a copy of Mitchell's judgment and conviction. (Id., Exh. H). Ms. London claims that the fax was sent on August 23, 2004, (Id. ¶ 13), but the fax cover sheet clearly is marked "8-3-04." In any event, Ms. London apparently had not notified Mitchell of her efforts because on August 17, 2004, Mitchell informed the Court by letter that he had not heard from Ms. London and that he wished to preserve his § 2255 rights. (Id., Exh. F). On August 20, 2004, Ms. London left New York for vacation. Ms. London claims that she did not see the facsimile from the Court until sometime after the date of her return, September 8, 2004. On September 16, 2004, the Court forwarded Mitchell's letter from August 17, 2004 to Ms. London. On September 20, 2004, Ms. London contacted Mitchell. She claims that she tried to get Mitchell's files from his previous lawyers, but again without success. Complicating the project was the fact that the office of Mitchell's trial counsel was destroyed on September 11, 2001. On November 2, 2004, Ms. London filed Mitchell's § 2255 petition. (Id. ¶¶ 13-19).

  Mitchell alleges in his petition that (1) his sentence on Counts Two, Seven and Eight was unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004), and (2) the inclusion of relevant conduct in his Guidelines sentencing calculation was tainted by the failure of the prosecution to disclose evidence favorable to him. (Mitchell Br. at 4). The Government opposes the petition and urges the Court to dismiss the petition as untimely because Mitchell filed the petition after the expiration of the one year limitations period established by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (Gov't Br. at 16-19).


  The first issue is whether Mitchell's § 2255 petition was timely. The one-year AEDPA statute of limitations began to run on the date that Mitchell's conviction became final. See 28 U.S.C. 2255(1). Mitchell contends that his conviction became final on March 24, 2003, which is the date that the Supreme Court denied "[h]is" certiorari petition, and that he had until March 23, 2004 to file his § 2255 petition. (Mitchell Br. at 13). Mitchell concedes that his petition missed the deadline, but he argues that the limitations period should be equitably tolled.

  In calculating the filing deadline, Mitchell's counsel assumes that the Supreme Court denied certiorari petitions with respect to Mason and Mitchell. According to the Supreme Court and Second Circuit dockets, this is not so. Mason's Supreme Court docket reflects a certiorari denial on March 24, 2003. (See infra, page A.2). His Second Circuit docket shows receipt of the Supreme Court's Order on March 27, 2003. (See infra, page A.3-6). By contrast, Mitchell's name appears nowhere in the Supreme Court docket, and neither his Second Circuit docket nor the Second Circuit docket for the consolidated case shows a Supreme Court order denying certiorari as to Mitchell. (See infra, page A.7-10, A.11-27). This Court has consulted the appropriate clerks at the Supreme Court and the Second Circuit, and they have confirmed this information. The Court therefore concludes that Mitchell, unlike Mason, did not petition the Supreme Court for certiorari, and that Mitchell's counsel has incorrectly fixed the starting and ending points for the one-year statute of limitations.

  A conviction becomes final when the Supreme Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Clay v. United States, 537 U.S. 522, 527 (2003). Under Supreme Court Rule 13.1, petitions for certiorari are timely if filed in the Supreme Court no later than 90 days after the entry of judgment in the circuit court. The judgment was filed in Mitchell's Second Circuit docket on November 21, 2002. Mitchell's time to file a certiorari petition expired 90 days later, on February 19, 2003. He therefore had until February 19, 2004 to file a § 2255 petition, not March 23, 2004, as his counsel contends. Mitchell did not file the petition until 257 days later, on November 2, 2004.

  Mitchell seeks equitable tolling because Mr. Roth, who was assigned on January 7, 2004, failed to inform the Court of his conflict for six months. Mitchell also argues that Mr. Roth failed to verify the statute of limitations and failed to act accordingly. Relying on Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003), and Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003), Mitchell argues that Mr. Roth's actions were so "incompetent" and "egregious" as to render his circumstances "extraordinary" for the purposes of equitably tolling the one-year period. (Mitchell Br. at 15).

  The Court disagrees. In Baldayaque, the defendant's family retained an attorney in February 1997, only days after the Second Circuit affirmed his conviction. Baldayaque, 338 F.3d at 148. One month later, the family members asked the attorney to file a § 2255 petition, but the attorney responded that the time to file such a petition had expired. Id. In actuality, over fourteen months remained. Id. at 148-49. Instead, the attorney decided to file an early deportation motion. Id. at 149. Baldayaque's representative called the attorney every month, but the attorney assured her that he was "waiting for a court date." Id. In November 1997, the attorney filed the motion but cited no authority. Id. The time to file the § 2255 motion expired in May 1998. Id. at 150. The deportation motion was denied in June 1998. Id. at 149. The attorney thereupon informed the family that there was nothing he could do. Id. The Court of Appeals found these actions "extraordinary." Id. at 152. Mitchell's case is not "extraordinary." Mitchell was not the victim of fifteen months of astounding incompetence on his attorney's part, as was Baldayaque. Mr. Roth took over Mitchell's case with only 43 days remaining to file the § 2255 petition. This was not the attorney's fault. Mitchell did not apply to the Court for appointment of a CJA attorney to handle the petition until nearly ten months after his conviction became final. As Ms. London pointed out in her affidavit, a "lengthy process" was necessary to obtain Mitchell's file, particularly given the loss of the trial counsel's papers on 9/11. (London Aff. ¶¶ 16, 18). She did not file Mitchell's petition until over four months after her appointment as his counsel. Under these circumstances, it can hardly be termed "extraordinary" that Mr. Roth, who had only 43 days, missed the deadline. Even assuming arguendo that Mr. Roth erred, the Circuit has found "attorney error inadequate to create the `extraordinary' circumstances equitable tolling requires." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).*fn2 The Court notes that Baldayaque did not end with the finding of extraordinary circumstances. The Circuit remanded to the district court for a finding as to Baldayaque's reasonable diligence in bringing his petition. Id. at 152-53. The Court held: "The presence of extraordinary circumstances is not enough . . . to justify equitable tolling. A petitioner must also show that he acted with reasonable diligence, and that the extraordinary circumstances caused his petition to be untimely." Id. at 153.

  Mitchell was not diligent during the period he seeks to toll. After his December 13, 2003 letter, he did not write to the Court again until August 17, 2004, over one month after Ms. London's appointment and well after the filing deadline. While Mitchell stated in this letter that he was in "desperate need of Professional help with . . . complicated issues," he shows a clear concern about the filing date for a § 2255 petition and that the petition may be "proceedurally [sic] barred." (London Aff., Exh. F). This letter reveals Mitchell's command of the English language, despite the misspelling, and his understanding of his rights. He cannot argue, nor does he, that he should be excused from his obligation of reasonable diligence because he was unable to assess his attorney's work or comprehend legal material. See Doe v. Menefee, 391 F.3d 147, 175 (2d Cir. 2004). Unlike in Baldayaque, where the defendant's representative contacted the attorney once every month for several months, there is no evidence in Mitchell's two letters, or anywhere else in the record, that Mitchell's attorneys ignored either his contacts or his instructions. See Baldayaque, 338 F.3d at 149.

  Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003), like Baldayaque, provides Mitchell with no assistance. Even if it were appropriate for the Court to rely on Ninth Circuit precedent when our Circuit has spoken clearly on this issue, the fact pattern of Spitsyn is very similar to that of Baldayaque and dissimilar to the instant case. See Spitsyn, 345 F.3d at 801.


  Mitchell's § 2255 petition is procedurally barred and is therefore dismissed. The Clerk is directed to close Case No. 04 Civ. 9672(JFK) and remove it from the Court's active docket.



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