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Washington v. United States

July 1, 2009


The opinion of the court was delivered by: Sifton, Senior Judge.


On July 14, 2003, Gary Washington ("petitioner") pled guilty to conspiring to import cocaine into the United States from a place outside thereof, in violation of 21 U.S.C. § 952(a). On January 20, 2004, petitioner was sentenced to 92 months in prison to be followed by a three-year period of supervised release and the $100 special assessment. Petitioner now moves this Court, pursuant to 28 U.S.C. § 2255, for re-sentencing due to ineffective assistance of counsel during the plea and sentencing process and for failure of counsel to file a post-sentence appeal. For the reasons set forth below, petitioner's application is denied.


The following facts are drawn from the record of petitioner's criminal case, the submissions of the parties in connection with this petition, the plea allocution before Magistrate Judge Pollak on June 14, 2003, and the sentencing proceeding before this Court on January 20, 2004.

On December 31, 2002, petitioner was charged with (1) conspiracy to import cocaine; (2) importing five kilograms or more of cocaine into the United States; and (3) possession with intent to distribute five kilograms or more of cocaine. Petitioner was represented by Ruth Liebesman in this matter.

On July 14, 2003, petitioner entered into a plea agreement with the government providing that if petitioner pled guilty to Count One of the indictment, the remaining two counts would be dismissed with prejudice. By signing the plea agreement, petitioner waived his right to challenge his conviction or sentencing if he was sentenced to a term of imprisonment of 188 months or less. In the plea agreement, the government estimated that the petitioner's adjusted offense level under the United States Sentencing Guidelines (the "Guidelines") would be 29.*fn1 At the allocution, Magistrate Judge Pollak asked petitioner whether he had read and understood the plea agreement, and whether the provisions of the plea agreement had been explained to him. Petitioner answered affirmatively.*fn2 Transcript of Plea Allocution on July 14, 2003 ("Plea Tr.") at 14.

A presentence investigation report ("PSR") was prepared on October 15, 2003. The PSR detailed petitioner's 11 arrests between 1989 and 2001. The PSR calculated that petitioner's total offense level was 31 and that he had a criminal history category of IV. An addendum to the PSR ("Addendum") was prepared on December 9, 2003, in response to objections to the PSR by the government and petitioner's counsel. The Addendum stated that petitioner should be considered a career offender pursuant to United States Sentencing Guideline 4B1.1(b) because he was 33 years of age when he committed the instant offense, the instant offense is a controlled substance offense and defendant has more than two prior felony convictions for controlled substance offenses. The Addendum calculated a total offense level of 23 and a criminal history category of VI, which created a sentencing range of 92 to 115 months imprisonment, 3 to 5 years of supervised release and a fine of up to $1,000,000.

Petitioner was sentenced by this Court on January 20, 2004. At sentencing, defense counsel challenged the government's classification of petitioner as a career offender. Petitioner's counsel argued that petitioner should not be classified as a career offender because such a classification applies only to repeat offenders who serve significant jail time and are recidivists. Transcript of January 20, 2004 Sentencing Proceedings ("Sentencing Tr.") at 5-6. Petitioner's counsel reasoned that since petitioner had spent minimal time in jail and has not had an opportunity to learn from his mistakes, he should not be classified as a career offender. Id. This Court disagreed, finding that petitioner's sustained criminal activity over more than a decade, including the commission of offenses while on probation, supported his classification as a career offender. Id. at 9-10. The Court then took into account other mitigating factors*fn3 and sentenced petitioner to 92 months imprisonment, the minimum under the guidelines, a three-year period of supervised release and a $100 special assessment fee. Id.

On October 23, 2007, petitioner filed the instant petition for habeas corpus relief pursuant to 28 U.S.C. § 2255. Petitioner argues that his counsel provided him with ineffective assistance by: (1) failing to appeal his classification as career offender; (2) failing fully to investigate prior state convictions to ascertain whether they could properly be used to increase his criminal history category to category VI; and (3) failing to explain the consequences of accepting the government's plea agreement, specifically that his right to appeal would be limited.


Timeliness of Petition

In 1996, Congress amended 28 U.S.C. § 2255 to include a one-year statute of limitations period that runs from the latest of the following dates: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the existence of due diligence.

Petitioner's sentence was imposed on January 20, 2004. The instant petition was filed on October 30, 2007, more than three years after petitioner's conviction became final. There has been no unlawful government intervention, no Supreme Court decision that is relied upon, and no new essential facts discovered that were not present at the time of sentencing.

Extensions of time to file habeas petitions may be granted "only if (1) the moving party requests the extension upon or after filing an actual § 2255 motion, and (2) 'rare and exceptional' circumstances warrant equitably tolling the limitations period." Green v. United States, 260 F.3d 78, 82-83 (2d Cir. 2001). "To merit application of equitable tolling, the petitioner must demonstrate that he acted with 'reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances 'beyond his control' prevented successful filing during that time. Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001). In his motion, petitioner has not requested an extension of time to file his habeas petition. And, even if this Court were to construe petitioner's motion as including a request for an extension, petitioner has ...

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