The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
Currently before the Court is a motion by petitioner Kevin Rivera to vacate, set aside, or correct his sentence, under 28 U.S.C. § 2255. For the reasons stated, the motion is denied.
Rivera was charged with two other co-defendants with engaging in a conspiracy to possess with the intent to distribute and to distribute cocaine base. On May 24, 2002, Rivera plead guilty to Count 1 of the indictment, conspiracy to possess with the intent to distribute and to distribute cocaine base in violation of 21 U.S.C. § 846. The plea agreement described the factual basis for the plea, stating that Rivera conspired with co-defendants Ricky Rodriguez and William Pena to provide cocaine base to another individual in exchange for money. The defendant instructed Rodriguez and Pena to bring the drugs to that person and to return with the cash. Rodriguez and Pena were intercepted by police officers who discovered approximately 141 grams of cocaine base. Rivera agreed that approximately 141 grams of cocaine base should be included as his relevant conduct in the offense.
The plea agreement anticipated that Rivera's base offense level (under the then-mandatory United States Sentencing Guidelines ("U.S.S.G.")) would be 32, that a two-level upward adjustment should be applied under U.S.S.G. § 3B1.1(c) and that a three-level acceptance responsibility adjustment should be applied under U.S.S.G. § 3E1.1. The parties agreed that Rivera's adjusted offense level was 31, his criminal history category was IV, and his anticipated guidelines range was 151 to 188 months. The parties also agreed that Rivera was subject to a 10-year mandatory minimum sentence. Rivera agreed to cooperate and, in exchange, the government agreed to file a downward departure motion under Guideline Section 5K1.1
In paragraph 19 of the plea agreement, Rivera agree to waive his right to appeal or collaterally attack any sentence imposed that was within or below the anticipated guidelines range of 151 to 188 months.
On January 6, 2003, Rivera appeared in this Court for sentencing. Consistent with the terms of the plea agreement, the government moved for a three-level downward departure under U.S.S.G. § 5K1.1. The Court granted the government's motion which reduced the defendant's offense level to 28, and his guidelines range to 110 to 137. The defendant was sentenced to 110 months' imprisonment - the lowest end of the guidelines range and 10 months below the statutory minimum sentence.*fn1
Judgment was entered on January 10, 2003. Rivera did not appeal his conviction or sentence.
On August 23, 2004, Rivera filed a motion under 28 U.S.C. § 2255 to vacate or set aside his conviction. The Court ordered Rivera to show cause as to why the petition should not be dismissed as untimely. Rivera responded alleging that he did not timely file his § 2255 petition because he believed that his attorney had filed a direct appeal. He claimed that his attorney had advised him that he had filed a direct appeal. On November 2, 2005, the Court found that, although the petition was untimely, there was at least a "colorable issue" as to whether the statute of limitations should be equitably tolled because Rivera's attorney had purportedly misled him to believe that a direct appeal was pending. The Court directed the government to respond to the petition. On December 12, 2005, the government responded arguing that the petition should be dismissed as untimely and because Rivera had waived his right to collaterally attack his sentence and conviction.
I. Motion is Untimely and Equitable Tolling is Unwarranted
The Court finds that the motion must be dismissed as untimely. As noted in the Court's November 2, 2005 Order, Rivera's motion was subject to a one-year statute of limitations that began to run on January 20, 2003, when his time to file a direct appeal from his conviction expired. He did not file his § 2255 motion until August 23, 2004, which is one year and 216 days after his conviction became final.
Rivera asserts that he was misled by his attorney into believing that his attorney had filed a direct appeal and seeks equitable tolling of the limitations period. Although the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d)(1), does not contain an equitable tolling provision, the Second Circuit has permitted equitable tolling in "rare and exceptional circumstances." Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004). To qualify for such treatment, the petitioner must establish that "extraordinary circumstances ...