The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1
Pro sepetitionerVictor Martinez ("Petitioner") filed a request for counsel along with three motions presently before this Court. First, Petitioner moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Second, Petitioner seeks a "Brady hearing" regarding evidence that the government allegedly failed to disclose prior to Petitioner's plea hearing. Third, Petitioner moves to postpone briefing on his § 2255 motion, pending the outcome of Petitioner's request for counsel. For the reasons set forth below, Petitioner's motions and request for counsel are denied.
On June 10, 2004, Petitioner pled guilty to a conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. Federal Bureau of Investigation ("FBI") agents had seized nearly 200 kilograms of cocaine from Petitioner's alleged co-conspirators. At Petitioner's arrest, the FBI found in his possession a coded list of the conspiracy members which included Petitioner's name. Prior to the plea hearing, the government provided Petitioner with a letter, pursuant to United States v. Pimentel, 932 F.2d 1029 (2nd Cir. 1991), setting forth the government's application of the United States Sentencing Guidelines ("U.S.S.G." or "Sentencing Guidelines") to Petitioner's case. Presentence Investigation Report ("PSR") ¶ 4. The Pimentel letter suggested a sentencing range of 168 to 210 months based on the Petitioner's base offense level of 38 and Criminal History Category of I.
On February 7, 2005, the Court conducted a hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), to address sentencing issues raised by Petitioner. At the hearing, Petitioner's counsel conceded that "our version of the facts and the version of the facts that the government believes are the same." Resp't's Mem. in Opp'n ("Resp't's Opp'n") Ex. G at 55. Petitioner's "only problem" was whether he qualified for a mitigating role adjustment pursuant to U.S.S.G. 3B1.2. Id. Counsel for Petitioner argued that Petitioner's role in the conspiracy was limited to collecting debts from the sale of marijuana, not cocaine. The government opposed such a role reduction for Petitioner, and maintained that Petitioner's involvement in the conspiracy was substantial: Petitioner had made multiple trips on behalf of the organization to collect drug debts, he had been included in the coded list of members of the conspiracy, and he had held at least one conversation with the purported head of the conspiracy about the seized cocaine.
This Court ultimately rejected Petitioner's request for a mitigating role adjustment for the aforementioned reasons, and sentenced Petitioner to 135 months' incarceration followed by five years of supervised release. Judgment, No. 04 Cr. 29 (Feb. 14, 2005). On March 10, 2005, Petitioner filed a timely notice of appeal. Appeal No. 05-1575-Cr. (2d. Cir.). On appeal, Petitioner's counsel argued that the factual allocution to support Petitioner's guilty plea was insufficient and that the 135-month sentence was unreasonable. On May 16, 2006, the Second Circuit issued a summary order rejecting all of Petitioner's claims and affirming this Court's Judgment. Petitioner was denied a rehearing on July 20, 2006.
On January 9, 2008, Petitioner filed a motion to vacate, set aside, or correct his sentence. Attached to the government's memorandum in opposition was a handwritten note from Petitioner's interpreter that Petitioner claims he had never seen before. See Resp't's Opp'n Ex. N. Consequently, Petitioner moved for a hearing pursuant to Brady v. Maryland, 373 U.S. 83 (1963), regarding any other evidence that the government may have failed to disclose. On April 21, 2008, Petitioner filed a request for counsel and moved to postpone any further briefing until a decision was made on his request.
A. Motion to Vacate, Set Aside, or Correct Sentence
1. Petitioner's Motion Is Time-Barred
Petitioner was required by statute to file his motion to vacate, set aside, or correct his sentence within one year of the date when the judgment in his criminal case became "final." See 28 U.S.C. § 2255(1).*fn2 For criminal defendants convicted under federal law, a judgment is not considered final until either the United States Supreme Court has denied the defendant's petition for a writ of certiorari or the time for the defendant to file one has come and gone. See Green v. United States, 260 F.3d 78, 84 (2d Cir. 2001). Pursuant to Rule 13(1) of the Supreme Court, Petitioner had 90 days from July 20, 2006 (the date the Second Circuit denied Petitioner's motion for a rehearing) to file a certiorari petition. See Clay v. United States, 537 U.S. 522, 525 (2003). As a result, Petitioner's timeframe to file a § 2255 motion began when his time to file a certiorari petition expired, on October 18, 2006, and ended one year later, on October 18, 2007. Since Petitioner did not file his § 2255 motion until January 9, 2008, Petitioner's claims are time-barred. However, even if they were not, Petitioner's claims would fail on their merits.
2. No New Evidence Casts Doubt on Petitioner's Guilty Plea
Despite having pled guilty, Petitioner now claims he is innocent. Actual innocence tolls the period of limitations for a § 2255 motion. Doe v. Menefee, 391 F.3d 147, 161 (2d Cir. 2004) ("[P]petitioner may use his claim of actual innocence as a 'gateway,' or a means of excusing his procedural default."). However, actual innocence requires "factual innocence, not mere legal insufficiency." Id.at 162. To demonstrate actual innocence, a petitioner must show "that it is more likely than not that no reasonable juror would have convicted him in light of new evidence." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (emphasis ...