The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
On August 7, 2003, a Superseding Indictment was returned by a grand jury sitting in the Northern District of New York. See 03-CR-0243, Dkt. No. 69 ("Superceding Indictment"). That accusatory instrument alleged that petitioner pro se Charles Myles and others combined, conspired, confederated, and agreed to engage in a pattern of racketeering activity through their membership in a criminal enterprise known as the Boot Camp Gang. Id.
On February 27, 2004, following negotiations between Myles's counsel and Assistant United States Attorney John Katko ("AUSA Katko"), the parties entered into a plea agreement relating to the Superceding Indictment. 03-CR-0243, Dkt. No. 258 ("Plea Agreement"). That agreement contained, inter alia, the factual basis for Myles's guilty plea (see Plea Agreement at ¶ 4) and provided that, under the terms of the Plea Agreement, he was expressly waiving his right to appeal or collaterally attack his conviction and any sentence of imprisonment of 235 months or less. Id. at ¶ 11 ("Appellate Waiver").
At the proceeding over which this Court presided wherein Myles formally entered his change of plea, the Court informed him of the rights he would be waiving by entering a guilty plea and the consequences of that plea. See Transcript of Change of Plea of Charles Myles (03-CR-0243, Dkt. No. 609) at pp. 2-4. After Myles acknowledged that he was aware of those facts, id. at p. 4, the Court took his guilty plea and then elicited answers from him which established, inter alia, that he had not been threatened into changing his plea, he was not under any duress, and he was entering the plea voluntarily and of his own free will. Id. at pp. 6-11. AUSA Katko then discussed what the Government would have proven if the case had gone to trial, id. at pp. 11-13, and Myles thereafter conceded that he had engaged in the acts summarized by the prosecutor which led to the criminal charges that were brought against Myles. Id. at p. 13. The prosecutor then noted that Myles had executed the Appellate Waiver, id. at p. 14, and Myles specifically acknowledged that he was aware of the terms of that waiver and that he had executed same. Id. at p. 16. The Court then accepted his guilty plea. Id. at pp. 18-19.
At the sentencing hearing that arose out of Myles's guilty plea, this Court found his Total Offense Level to be 33, his criminal history category to be IV, and the applicable range of imprisonment under the United States Sentencing Guidelines to be between 188 and 235 months. See Transcript of Sentencing of Charles Myles (11/18/04) (03-CR-0243, Dkt. No. 608) at p. 10. However, the Court concluded that his criminal history category overstated the likelihood that he would commit crimes in the future, and thereafter imposed a sentence of 180 months imprisonment on Myles. Id. This Court then reiterated the terms of the Appellate Waiver, id. at p. 12, which Myles again acknowledged. Id.
Myles did not file any appeal of his conviction or sentence. See Motion to Vacate, Set Aside or Correct Sentence (06-CV-0007, Dkt. No. 1) ("Motion to Vacate") at ¶ 8.
In the memorandum of law he has filed in support of his Motion to Vacate (see Attachment to Motion to Vacate) ("Supporting Mem."), Myles claims that his conviction and sentence must be set aside because they were obtained in violation of the Supreme Court's decisions in Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005). See Supporting Mem. at pp. 1-2. Myles candidly acknowledges, however, that current case law does not permit the retroactive application of the law discussed in the above cases to collateral challenges to convictions such as the action he has commenced herein. See id. at p. 3. He has therefore requested that this action be dismissed "without prejudice subject to re-filing at such time as the Supreme Court renders a decision in favor of retroactivity." Id. at pp. 3-4.
The Office of the United States Attorney for the Northern District of New York, acting on respondent's behalf, has filed a letter-brief in opposition to Myles's application. See 06-CV-0007, Dkt. No. 4 ("Letter Br."). In that filing, respondent argues that petitioner's Motion to Vacate was not timely commenced and that, in any event, the claims asserted by him in his pleading must be denied. Id.
Petitioner thereafter filed a Traverse (06-CV-0007, Dkt. No. 6) ("Traverse"), and a supplemental memorandum of law in further support of his Motion to Vacate (06-CV-0007, Dkt. No. 8) ("Supplemental Mem."). In his supplemental memorandum, Myles appears to be requesting permission from this Court to amend his Motion to Vacate and assert additional claims alleging: i) ineffective assistance of trial counsel (see Supplemental Mem. at pp. 2-16); and ii) error on the part of this Court in sentencing Myles due to inaccurate information contained in the Pre-Sentence Investigation Report prepared by the Probation Department for the Northern District of New York (id. at pp. 16-17).
A. Statute of Limitations
As a result of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2255 now provides that motions to vacate brought under this section are subject to a one year statute of limitations. See § 2255, ¶ 6.
In the underlying criminal action, the judgment of conviction was entered against Myles on November 30, 2004. See 03-CR-0243, Dkt. No. 500. Since he did not file any appeal relating to his conviction or sentence, see Motion to Vacate, ¶ 8, his conviction became "final" the first business day after the ten day period during which he could have timely filed his appeal in that criminal action expired, i.e., Wednesday, December 15, 2004. See Fed.R.App. P. 4(b), 26(a); see also Aboulissan v. United States, No. 03-CV-6214, 2008 WL 413781, at *2 (E.D.N.Y. Feb. 13, 2008) (citing Wims v. United States, 225 F.3d 186, 188 (2d Cir. 2000)) (other citations omitted). Myles therefore had one year from that date, until December 16, 2005, within which to timely commence this action. Since this action was not filed until, at the earliest, December 29, 2005--the date on which Myles signed his Motion ...