The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Before the court is a petition for a writ of habeas corpus, pursuant to Section 2255 of Title 28 of the United States Code ("U.S.C."), brought by Chi Fai Wong ("Petitioner" or "Wong"), who is a prisoner at the Federal Correctional Institution in Memphis, Tennessee. Petitioner was convicted in this court, after a trial by jury, of murder, conspiracy to commit murder, racketeering, and conspiracy to commit extortion. On appeal, the Second Circuit affirmed the district court's judgment, on July 29, 1998. See United States v. Tung, 159 F.3d 1349 (2d Cir. 1998).
Petitioner now challenges his conviction and sentence on the ground that the United States of America (the "Government") improperly suppressed exculpatory evidence, and further challenges his sentence pursuant to United States v. Booker, 543 U.S. 220 (2005). The Government moves to dismiss on the ground that Wong's petition is untimely and, alternatively, requests that this court deny Wong's claims as without merit.
For the reasons stated below, the court finds that Petitioner's request is untimely. Accordingly, the Government's motion to dismiss is granted.
Starting in the mid-1980s until his arrest at the end of 1993, Petitioner was the elected President or the de facto boss, of a Chinatown tong, or association, known as the Tung On Association located in New York County. Under Petitioner's leadership, the Tung On Association was aligned with a violent gang called the Tung On, which controlled a sharply defined area of Chinatown in Manhattan. During this period, the Tung On gang was deeply entrenched in criminal extortion, gambling, narcotics trafficking, and violent gang activity, including turf wars, planned attacks, kidnapings, shootings, stabbings, and general gang warfare. In December 1993, federal agents arrested several members of the Tung On gang, including Petitioner, co-defendant Yuk Chun Kwong ("Kwong"), and Petitioner's brother Steven Wong.
Petitioner was convicted in the United States District Court for the Eastern District of New York, after a trial by jury, of racketeering activity under 18 U.S.C. § 1962(c), 18 U.S.C. § 1959(a), murder and conspiracy to commit murder under 18 U.S.C. § 1959(a), and conspiracy to commit extortion under 18 U.S.C. § 1951. On October 11, 1995, the trial court sentenced Petitioner to three terms of life imprisonment for murder and racketeering, a term of ten years of imprisonment for conspiracy to murder, and a term of twenty years of imprisonment for conspiracy to commit extortion, all of which were to run concurrently.
After Petitioner was sentenced, he moved for a new trial, alleging that he was denied effective assistance of counsel. Petitioner, along with his co-defendants, including Kwong, also advanced a claim under Brady v. Maryland, 373 U.S. 83 (1963). Pursuant to Brady, they alleged that the Government improperly failed to disclose that, prior to his indictment, Petitioner had provided information to law enforcement about members of the Tung On gang and other Chinatown gang activity.
The Honorable Reena Raggi, then a United States District Judge, conducted extensive post-trial evidentiary hearings and, on October 18, 1996, denied Petitioner's motion for a new trial. Judge Raggi held that Petitioner's previous cooperation with the Government was immaterial and deemed unfounded his claims of ineffective assistance of counsel.
Petitioner appealed Judge Raggi's decision, arguing on appeal that there was insufficient evidence to convict him of racketeering, that he received ineffective assistance of counsel, and that the Government suppressed material evidence*fn1 in violation of his right to due process. On July 29, 1998, the Second Circuit affirmed the district court's decision on all counts. See United States v. Tung, 159 F.3d 1349 (2d Cir. 1998).
Petitioner now brings the instant habeas petition, which was filed on January 12, 2005.
B. Discovery of Allegedly Exculpatory Evidence
Petitioner claims that, sometime in late January 2004, he learned, through a letter sent to him by co-defendant Kwong, that Kwong had cooperated with Drug Enforcement Administration ("DEA") agents in their investigation of Petitioner during the period spanning 1990 to 1992. (See Kwong Affs. and Letter Pet.'s Exs. A & B.). Kwong affirms that he sent the aforementioned letter to Petitioner in or around January 2004. (Kwong Aff. Pet.'s Ex. B ¶¶ 4-5.) Kwong further attests that DEA agents had asked him many questions about Petitioner, and that he informed them that Petitioner was a "legitimate businessman." (Kwong Aff. Pet.'s Ex. A ¶ 6.) Petitioner does not dispute ...