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Sabbeth v. United States

December 29, 2005

STEPHEN J. SABBETH, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT,



The opinion of the court was delivered by: Hurley, District Judge

MEMORANDUM OF DECISION AND ORDER

Stephen J. Sabbeth ("Petitioner") petitions for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255, from his July 27, 2000 conviction before this Court. For the reasons stated below, the petition is denied.

BACKGROUND

On May 7, 1997, a federal grand jury charged Petitioner with one count of conspiracy to commit bankruptcy fraud, in violation of 18 U.S.C. § 371; one count of bankruptcy fraud, in violation of 18 U.S.C. § 152(7); three counts of making false oaths in relation to a bankruptcy proceeding, in violation of 18 U.S.C. § 152(2); and one count of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(I). Following a four-week trial, a jury found Petitioner guilty of all six counts and on July 21, 2000, the Court sentenced Petitioner to 97 months imprisonment, 3 years supervised release, restitution in the amount of $125,000, and a special assessment in the amount of $300.

Petitioner subsequently filed a timely notice of appeal. On August 21, 2001, Petitioner's conviction was affirmed by the Second Circuit. See United States v. Sabbeth, 262 F.3d 207 (2d Cir. 2001). On September 4, 2001, Petitioner's appellate counsel filed a motion for rehearing or rehearing en banc. On October 16, 2001, the Second Circuit issued an order denying the petitions for rehearing and for rehearing en banc. On October 23, 2001, Petitioner's counsel filed a motion for a stay of the mandate pending the filing of a petition for writ of certiorari. In the motion, counsel asserted that he intended to file a second petition for reconsideration on the Petitioner's behalf based upon a then recent amendment to the United States Sentencing Guidelines, which would become effective nine days later, on November 1, 2001. (Resp't's Mem. at 11.)

On November 5, 2001, Petitioner's counsel filed a second motion for reconsideration based upon the 2001 amendment to the Sentencing Guidelines. On November 6, 2001, the Second Circuit granted Petitioner's motion for a stay of the mandate pending his filing of a petition for writ of certiorari. On January 11, 2002, after briefing was complete, the Second Circuit denied Petitioner's second motion for reconsideration. See United States v. Sabbeth, 277 F.3d 94 (2d Cir. 2002).

On February 6, 2002, the Second Circuit received a pro se letter from Petitioner seeking to reargue the second rehearing petition which the court had just denied. (Resp't's Mem. at 12.)

The docket sheet reveals that because Petitioner was represented by counsel, the Second Circuit forwarded Petitioner's letter to counsel for a response. (Pet. Ex. A.) On February 26, 2002, the Second Circuit received a second pro se letter from Petitioner also seeking reargument of the January 11, 2002 Order, which was similarly forwarded to Petitioner's counsel. (Id.; see also Resp't's Mem. at 12.) On March 6, 2002, Petitioner's counsel moved to be relieved.

Thereafter, on March 14, 2002, the Second Circuit issued its mandate. Five days later, on March 19, 2002, the Second Circuit granted Petitioner's attorney's motion to be relieved as counsel. That same day, Petitioner, acting pro se, filed a third petition for rehearing and for rehearing en banc. The docket sheet notes: "Problem: Petition was previously DENIED." (Pet. Ex. A.) Approximately six months later, on September 25, 2002, after Petitioner had apparently sent five letters to the Second Circuit inquiring into the status of his third petition for rehearing, Petitioner filed a fourth motion seeking leave to file a second pro se petition for rehearing. On October 15, 2002, the Second Circuit denied this motion.

Thereafter, Petitioner sent two letters to the Second Circuit, entered on the docket October 25, 2002, and January 14, 2003, respectively. On January 16, 2003, a letter was sent to petitioner by the Second Circuit advising him that "[b]ecause this Court no longer has jurisdiction over this matter, we can be of no further assistance to you." (Pet.'s Reply Ex. B.). The docket sheet reflects that Petitioner sent two more letters to the Second Circuit in February and March of 2003, the latter of which requested information regarding "'any deadlines for certiorari, further appeal, and 2255 motions.'" (Pet. Ex. A.)

On January 12, 2004, Petitioner filed the instant petition. Respondent argues that the petition must be dismissed because it was not filed within the statutorily required time. Petitioner contends that his filing was timely and argues alternatively that should the Court find his petition untimely, the limitations period should be equitably tolled. For the reasons that follow, the Court finds that the petition is not timely and that equitable tolling does not apply. Accordingly, the petition is dismissed.

DISCUSSION

I. Timeliness of the Petition

A. Applicable Legal Standards

Prior to the Anti-Terrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), there was no statute of limitations governing requests for federal habeas corpus relief. Clay v. United States, 537 U.S. 522, 528 (2003). Effective April 24, 1996, the AEDPA requires, among other things, that § 2255 motions be filed within one year from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) 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. Here, the parties agree that the triggering event relevant to this action is contained in subdivision (1), i.e., "the date on which the judgment of conviction becomes final." Id.

Congress did not explicitly state in the AEDPA when a judgment of conviction becomes final for purposes of ยง 2255. In Clay, however, the Supreme Court held that 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." 537 U.S. at 527. Here, Petitioner did not file a petition for a writ of certiorari; thus, his conviction became final when his time for such filing expired. Id. at 532 ("[F]or federal criminal defendants who do not file a petition for writ of ...


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