The opinion of the court was delivered by: Haight, Senior District Judge
MEMORANDUM OPINION AND ORDER
By Summary Ivan Rodriguez has filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct a sentence imposed upon him by this Court following Rodriguez's conviction after a jury trial on charges of conspiracy to commit murder, murder, and the use of a firearm in furtherance of those crimes. The motion was originally assigned to Judge Stein and then transferred to this Court as the one that imposed Rodriguez's sentence.
The government, opposing Rodriguez's motion, contends that it is untimely and, in the alternative, without merit. For the reasons that follow, the Court denies the motion.
The jury trial resulting in the conviction of Rodriguez and his co-defendant, Angel Padilla, lasted for twelve weeks. On May 16, 1995, the jury returned its verdict finding both defendants guilty of all the charges against them.
On direct appeal, the Second Circuit affirmed the convictions of both Padilla and Rodriguez in a single opinion, having heard both appeals together. United States v. Padilla, 203 F.3d 156 (2d Cir. 2000); see also United States v. Padilla 205 F.3d 1326 (Table), 2000 WL 234427 (2d Cir. Feb. 7, 2000) (unpublished opinion). Although the present motion is made only on behalf of Rodriguez, I will for reasons that appear infra discuss the contentions made on appeal by both Rodriguez and Padilla, and the Second Circuit's dispositions of those contentions.
This Court sentenced Rodriguez principally to a term of life in prison, followed by the mandatory consecutive five-year term for the gun violation. The Second Circuit affirmed Rodriguez's judgment of conviction in its published opinion on March 3, 2000. Rodriguez's conviction became final ninety days later, on May 8, 2000, when his time for filing a petition of certiorari with the Supreme Court expired. See Clay v. United States, 537 U.S. 522, 524-25 (2003).*fn1
The Antiterrorism and Effective Death Penalty Act of 1966 (AEDPA) established a one-year limitation period on the filing of § 2255 motions which begins to run on the day the defendant's conviction becomes final. In Rodriguez's case, as noted in Part I, that day was May 8, 2000. Accordingly, the AEDPA required Rodriguez to file the present motion not later than May 8, 2001. But Rodriguez did not file the motion until January 17, 2006. In consequence, the motion must be dismissed as untimely under the statute unless, as Rodriguez contends and the government denies, Rodriguez can successfully invoke the doctrine of equitable estoppel.
"The Second Circuit has taken the position that the AEDPA's one-year statute of limitations is not a jurisdictional bar and is therefore subject to equitable tolling." Padilla, 2002 WL 31571733, at *1 (citing Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001)). See also Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) ("[O]ther circuits considering this issue uniformly have held that the [AEDPA] one-year period is a statute of llmitations rather than a jurisdictional bar so that courts may equitably toll the period. We join our sister circuits and also adopt this rule.") (citations omitted).
"Equitable tolling applies only in the rare and exceptional circumstance. In order to equitably toll the one-year period of limitations, [a petitioner] must show that extraordinary circumstances prevented him from filing his petition on time." Smith, 208 F.3d at 17.*fn2 The circumstance that Rodriguez relies upon for equitable tolling is his inability while incarcerated to obtain and make use of his legal papers and files. The particulars are described in ¶¶ 11(d) and 13 of Rodriguez's motion.
I also had a New York State conviction and sentence of life imprisonment, which I served and paroled from in 2004. During my transfers from the Federal Bureau of Prisons to the New York State DOC my legal paperwork was either misplaced, lost and/or destroyed ...