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Ocampo v. United States


August 24, 2006


The opinion of the court was delivered by: Norman A. Mordue Chief, United States District Judge

No. 1:04-CV-0729 (NAM)



On February 10, 1992, petitioner, pro se William Ocampo, who is a citizen of Colombia, was deported from the United States after he completed his term of imprisonment for his conviction in the Eastern District of New York of the aggravated felony of possessing with intent to distribute cocaine. See Plea Agreement of William Ocampo (11/8/01) (01-CR-0361, Dkt. No. 9) ("Plea Agreement") at ¶ 5. In or about October, 1997, Ocampo re-entered the United States without having first obtained the express permission of the United States Attorney General to re-enter this country.*fn2

Plea Agreement at ¶ 5.

On June 1, 1998, Ocampo was arrested in Suffolk County, New York and charged with criminal possession of a controlled substance in the third degree and second degree conspiracy. See 04-CV-0729, Dkt. No. 5 at Attachment 4, ¶ 31. Ocampo eventually plead guilty to the crime of attempted second degree conspiracy and was thereafter sentenced to an indeterminate term of four to eight years imprisonment. Id., ¶ 30. While incarcerated at the Ulster Correctional Facility for that crime, an immigration officer eventually learned that Ocampo had illegally re-entered the United States after having been previously deported from this country. Plea Agreement at ¶ 5. Following further investigation into the matter, a federal grand jury of the Northern District of New York subsequently returned an indictment against Ocampo in which he was charged with illegally re-entering the United States after deportation, in violation of 8 U.S.C. § 1326. See 04- CV-0729, Dkt. No. 5 at Attachment 1 ("Indictment"). The Federal Public Defenders Office for the Northern District of New York was thereafter appointed to defend Ocampo concerning the criminal charge brought against him, 01-CR-0361, Dkt. No. 5, and on November 8, 2001, Ocampo executed a plea agreement in which he agreed to plead guilty to the Indictment. 01-CR-0361, Dkt. No. 9.

At the proceeding held by this Court relating to Ocampo's change of plea, the Government discussed (in the presence of Ocampo) the factual basis for his plea and noted that, for purposes of sentencing, his criminal history category was III and his total offense level was twenty-four. See Transcript of Change of Plea (11/8/01) (04-CV-0729, Dkt. No. 5 at Attachment 3) ("Plea Tr.") at pp. 12-13.*fn3 At that proceeding, both this Court and the Government noted that Ocampo agreed, in his plea agreement, to waive his right to appeal any sentence of imprisonment of seventy-eight months or less. Plea Tr. at pp. 15, 19.

On March 7, 2002, Ocampo appeared before this Court for sentencing.*fn4 At that proceeding, this Court determined that petitioner's total offense level of twenty-one,*fn5 combined with his criminal history category of IV, subjected Ocampo to a range of imprisonment under the Sentencing Guidelines of between fifty-seven to seventy-one months. See Transcript of Sentencing of William Ocampo (3/7/02) (01-CR-0361, Dkt. No. 22) ("Sentencing Tr.") at pp. 11-12. This Court thereafter principally sentenced Ocampo to a term of fifty-seven months imprisonment.*fn6 Sentencing Tr. at p. 12.

Ocampo filed a Motion to Vacate, Set Aside or Correct his sentence pursuant to 28 U.S.C. § 2255 on June 18, 2004. See 04-CV-0729, Dkt. No. 1 ("Motion to Vacate") at p. 7. In his application, movant alleges that his trial counsel rendered ineffective assistance by: i) failing to file and pursue an appeal on behalf of Ocampo; and ii) failing to object when this Court increased petitioner's total offense level by sixteen levels, thereby subjecting petitioner to a longer range of imprisonment under the Sentencing Guidelines. See Motion to Vacate at pp. 5-6.

On August 6, 2004, the Government, through the United States Attorney for the Northern District of New York ("United States Attorney"), filed its memorandum in opposition to petitioner's Motion to Vacate. See 04-CV-0729, Dkt. No. 5 ("Resp. Mem."). In opposing Ocampo's application, the United States Attorney argues, inter alia, that the present Motion to Vacate is untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").

See Resp. Mem. at pp. 6-8. Ocampo has filed a reply memorandum of law in further support of his Motion to Vacate. See 04-CV-0729, Dkt. No. 6 ("Reply").

In light of Ocampo's claim that his counsel failed to comply with petitioner's request to file an appeal, on July 28, 2006 this Court conducted an evidentiary hearing to determine whether the petitioner instructed his attorney to file an appeal. E.g., Campusano v. United States, 442 F.3d 770, 777 (2d Cir. 2006) (where petitioner alleges that his attorney wrongfully failed to file an appeal, district court is to conduct evidentiary hearing to determine whether such claim has substance). Both Ocampo and his attorney in the underlying criminal proceeding, Kent Sprotbery, Esq., testified at that proceeding.*fn7 Additionally, various documents submitted by the parties were received into evidence at that hearing.

After considering all of the evidence received at that hearing, together with the briefs filed by the parties in this civil action and relevant documents filed in the related criminal matter, this Court issued a bench decision at the conclusion of the July 28, 2006 hearing in which this Court found that the evidence conclusively established that Ocampo did not ask Attorney Sprotbery to file any appeal on Ocampo's behalf in the underlying criminal matter. See 04-CV-0729, Dkt. No. 10.


In light of this Court's finding that Ocampo did not request that Attorney Sprotbery file any appeal on Ocampo's behalf, this Court may now properly consider respondent's initial argument in opposition to the present action, which claims that this proceeding was not timely commenced by Ocampo. See Resp. Mem. at pp. 6-8.

Following the enactment of the AEDPA, 28 U.S.C. § 2255 now provides that motions to vacate brought under that section are subject to a one year statute of limitations. See 28 U.S.C. § 2255, ¶ 6. Under 28 U.S.C. § 2255, the AEDPA's limitation period begins to run from, inter alia, "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255, ¶ 6(1).

In the underlying criminal action, the judgment of conviction was entered against Ocampo on March 19, 2002. See 01-CR-0361, Dkt. No. 17. Pursuant to PP FED.R.A .P. 4(B), petitioner was required to file his notice of appeal within ten days of the entry of that judgment of conviction. See id.; see also United States v. Montoya, 335 F.3d 73, 74 (2d Cir. 2003). Since petitioner did not file any appeal relating to his conviction or sentence, his conviction became "final" the day after his time to file an appeal expired, i.e., April 3, 2002.*fn8 See Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005); Wims v. United States, 225 F.3d 186, 188 (2d Cir. 2000).

In contesting respondent's claim that this matter was untimely filed, petitioner initially argues that this matter was commenced less than one year after the applicable statute of limitations began to run concerning his § 2255 motion. See Reply at p. 4. In support of this claim, Ocampo notes that a "Sentence Monitoring Computation Data" sheet apparently prepared by the Bureau of Prisons ("BOP") indicates that Ocampo was committed to the custody of the BOP on November 13, 2003. See Reply, Exh. B. Petitioner argues that because this action was filed by him on June 18, 2004 -- less than one year after he began serving his federal sentence -- the present proceeding was timely commenced by petitioner. See Reply at p. 4.

Unfortunately for Ocampo, this argument fails to recognize the fact that the time at which the limitations period of the AEDPA commences is specifically addressed in that statute. Specifically, 28 U.S.C. § 2244(d) provides that the AEDPA's statute of limitations: shall run from the latest of --

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

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

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).

None of the language in the foregoing statute suggests that the AEDPA's limitations period does not begin to run until the person convicted of the federal offense actually begins serving the federal sentence imposed on him. Nor has this Court's research disclosed any case authority that stands for such proposition. Thus, this argument of petitioner is unavailing.

Therefore, since this Court has determined that movant never requested that his trial counsel file a notice of appeal on his behalf, this action -- which was filed no earlier than June 18, 2004 (see Motion to Vacate at p. 7) -- is patently untimely unless Ocampo is entitled to an equitable tolling of the AEDPA's limitations period. See, e.g., Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001) (equitable tolling is available for petitions filed pursuant to 28 U.S.C. § 2255).

In Pace v. DiGuglielmo, the Supreme Court noted that the AEDPA's statute of limitations may only be equitably tolled when the petitioner establishes the following: 1) that he pursued his rights diligently; and 2) that some extraordinary circumstance prevented him from timely filing his action. 544 U.S. 408, 418 (2005).

The Court's review of the present civil action establishes that petitioner has not pursued his rights diligently. Although petitioner now appears to lay the blame for his inaction at the feet of his trial attorney, see Reply at pp. 2-4, it is clear that such argument is rooted in his claim that his attorney failed to comply with petitioner's alleged request to pursue an appeal in the underlying criminal action. See id. However, this Court has already determined that Ocampo's claim that he directed his counsel to pursue an appeal is without substance. Thus, Ocampo cannot properly attribute his delay in filing the present Motion to Vacate to the claimed inactions of Attorney Sprotbery.

Petitioner also argues that while he was incarcerated for his crime of attempted second degree conspiracy, he was incarcerated "in a State prison without access to any meaningful federal law." Reply at p. 4. Thus, petitioner appears to suggest that he was prevented from preparing his Motion to Vacate until such time as he was incarcerated in a federal correctional institution because the law libraries in his state facility were inadequate. See id. Since Ocampo has not cited any specific deficiencies concerning the law libraries of the facilities in which he was incarcerated as support for his claim, it appears as though petitioner is making a general claim that inmates incarcerated in New York State's Department of Correctional Services ("DOCS") cannot adequately prepare and/or research claims rooted in federal law. That claim is specious.

This Court has reviewed countless petitions, complaints and other filings submitted by inmates who are incarcerated throughout the state. Nearly all of those submissions are based upon a claim that the inmate's federal statutory or constitutional rights have been violated by others. It is clear from those numerous filings that inmates incarcerated in the DOCS are well equipped to assert such claims in federal courts notwithstanding the fact that they are incarcerated in state-operated prisons.*fn9

In Green, the Second Circuit cautioned federal district courts that the equitable tolling of AEDPA's the statute of limitations "applies only in ... rare and exceptional circumstance[s]."260 F.3d at 82 (citing Smith v. McGinnis, 208 F.3d 13, 17 (2000)); see also United States v. Rodriguez, ___ F.Supp.2d ___, 2006 WL 1975811, at *1 (S.D.N.Y. July 14, 2006). Nothing in the record suggests that Ocampo was prevented from timely commencing this action by any "extraordinary circumstance." Pace, 544 U.S. at 418. Additionally, the facts of this case do not demonstrate that the circumstances relating to this case are rare or exceptional such that petitioner should be afforded an equitable tolling safe harbor from the dismissal of his petition based upon the AEDPA's one year limitations period. Therefore, the Court hereby dismisses Ocampo's § 2255 motion as untimely filed.


After having carefully considered the evidence adduced at the evidentiary hearing conducted on July 28, 2006, and having reviewed the file in this matter and the related criminal action, the parties' submissions, the applicable law, and for the reasons stated herein, it is hereby

ORDERED, that petitioner's Motion to Vacate is DENIED, and it is further

ORDERED, that the Clerk of the Court serve a copy of this Order on the parties by electronic or regular mail.


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