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