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Kotlyarsky v. United States

March 12, 2007

BORIS KOTLYARSKY, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: John F. Keenan, United States District Judge

OPINION and ORDER

Boris Kotlyarsky, pro se, moves to vacate his conviction under 28 U.S.C. § 2255. He filed this motion over thirty-eight months after his conviction became final and over one year after he was released from imprisonment. For the reasons that follow, the petition is denied.

BACKGROUND

Kotlyarsky and eight others were charged in a 43-count indictment filed on December 2, 1998. The Indictment charged Kotlyarsky with conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956 (Count 1), money laundering, in violation of 18 U.S.C. § 1956 (Count 2), conspiracy to defraud the United States, in violation of 18 U.S.C. § 371 (Count 23) and avoiding the requirements for reports on domestic coin and currency transactions in 31 U.S.C. § 5313 (Count 24). On January 3, 2001, Kotlyarsky pled guilty to Count 1, the conspiracy count. On April 10, 2001, the Court sentenced Kotlyarsky to 18 months of imprisonment and 24 months of supervised release. The other open counts against him were dismissed. Final judgment was entered on April 11, 2001 and modified on April 19, 2001. Kotlyarsky did not appeal the conviction or sentence.

On June 18, 2004, Kotlyarsky filed his 2255 petition. He attacks his sentence on two grounds. He argues first that his guilty plea was "unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequence of the plea." More specifically, he contends that his counsel, Joy Vastola, Esq., "advised [him] that the government advised counsel that it will indict [his] wife and two children should [he] decide to proceed to trial." Kotlyarsky's second argument is Ms. Vastola and her co-counsel, Michael Rosen, Esq., "induced [Kotlyarsky] to enter into a plea agreement despite [his] wishes to proceed to trial and the existence of exculpatory material." (2255 Petition at §§ 12A, 12B.)

DISCUSSION

Kotlyarsky is not entitled to relief under 28 U.S.C. § 2255. As part of his plea agreement, he waived the right to collaterally attack his conviction by means of a § 2255 motion. Kotlyarsky acknowledged as much at his January 3, 2001 plea hearing. (Tr. 11.)*fn1

In addition, his motion is time-barred under the one-year statute of limitations in the AEDPA. The limitations period began to run as of the date that Kotlyarsky's conviction became final. See 28 U.S.C. § 2255(1). This occurred in April 2001, over three years before Kotlyarsky filed his § 2255 motion. Nevertheless, the limitations period may be equitably tolled if the petitioner shows "extraordinary circumstances preventing him from filing his petition on time, and he must have acted with reasonable diligence throughout the period he seeks to toll." Baldayaque v. United States, 338 F.3d 145, 150 (2d Cir. 2003). Kotlyarsky offers no explanation in his submission for his failure to timely file his § 2255 motion.

In any event, the petition is baseless on its merits. Kotlyarksy's first argument is that the plea was unlawfully induced or not made voluntarily. He suggests that the Government advised his counsel that his wife and children would be indicted if he did not plead guilty. Kotlyarsky's testimony at the plea hearing contradicts this argument:

THE COURT: Most defendants say they want a break. If you say all you want is justice, that's fine too. The point is this. Have you been induced to offer to plead guilty by reason of any promise or statement by anyone to the effect that you would get leniency, a break or special treatment or consideration because you pleaded guilty instead of going to trial.

THE DEFENDANT: No.

THE COURT: Are you offering to plead guilty of your own free will?

THE DEFENDANT: Yes.

THE COURT: Have you been induced to offer to plead guilty by any fear, pressure, threat, or ...


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