United States District Court, S.D. New York
August 23, 2005.
ALDO MITCHELL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
OPINION and ORDER
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
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.
SO ORDERED. EXHIBITS A1-A27
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