The opinion of the court was delivered by: Joanna Seybert, U.S.D.J.
AMENDED MEMORANDUM & ORDER
On June 3, 2008, Petitioner Shi Dong Ping filed an Application for leave to file a second or successive motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Petitioner filed a Motion to modify the terms of imprisonment pursuant to 18 U.S.C. § 3582 on November 30, 2009. On April 15, 2010, Petitioner moved to file a supplemental argument. For the following reasons, Petitioner's application to supplement his Petition is GRANTED, but his motion to modify the terms of his imprisonment is DENIED.
On May 31, 1995, Petitioner was indicted by a federal grand jury, charging him with five counts related to a series of kidnappings that took place within the Eastern District of New York. The counts included violations of 18 U.S. §§ 371, 1203(A), 1203(2) for conspiracy to seize and detain and intentionally seizing and detaining individuals in order to compel third persons to pay sums of money as an explicit or implicit condition for the release of persons detained. (Consolidated Mem. of Law in Opp'n to Pet. to Vacate Sentence ("Mem. in Opp'n") 3-4.) Petitioner's motion to suppress witness identifications of him based on photograph and voice exemplar arrays was denied after a hearing. (June 21, 1995 Suppression Hrg. Tr. 123-25.) At trial, the government called 24 witnesses, including Petitioner's co-conspirator and three victims. (Tr. 682-896, 292-329, 437-66, 896-949.) Petitioner did not testify and rested without calling any witnesses. (Tr. 1085-86.) The jury found Petitioner guilty of all charges after one day of deliberations. (Tr. 1266.) On April 4, 1996, the Court held Petitioner's sentencing hearing, applying a four-level enhancement for Petitioner's leadership role in the conspiracy pursuant to U.S.S.G. § 3B1.1(a) and sentenced him to life imprisonment on counts one through five. (Apr. 4, 1996 Hrg. 46, 50.)
Petitioner then filed a petition to correct his sentence pursuant to 28 U.S.C. § 2255 on April 15, 1996. (94-CR-981, Docket Entry 93.) This motion was dismissed based on lack of final judgment on July 19, 1996. (Mem. in Opp'n 15.) Petitioner filed a second notice of appeal in the Second Circuit after the government moved to correct the life sentence for count one because it was subject to a five-year statutory maximum sentence. (Mem. in Opp'n 14-15.) The Second Circuit vacated the sentence as to Count One as it exceeded the statutory maximum and remanded for correction of the sentence. United States v. Yong, 113 F. 3d 1230, 1997 WL 265253, at *4 (2d Cir. May 20, 1997). However, the Second Circuit found that there was enough evidence at trial to justify the application of the sentencing enhancement for Ping's leadership role and upheld the rest of his sentence. Id. at *3.
On February 18, 2005, the Court entered an amended judgment with regard to count one. The Court sentenced the Petitioner to a term of 60 months to run concurrently to his other life terms imposed for counts two through five. (Feb. 18, 2005 Resentencing Hrg. Tr. 6.) Petitioner then filed a pro se motion seeking to reinstate his first direct appeal and the Second Circuit denied this motion on October 22, 2007. (Mem. in Opp'n 16.)
On June 3, 2008, Petitioner filed the instant second or successive petition to vacate his sentence pursuant to 28 U.S.C. § 2255. (Application for Leave to File a Second or Successive Mot. to Vacate, Set Aside or Correct Sentence ("Pet'rs § 2255 Mot.") 1.) In the Motion, Petitioner claimed he received ineffective assistance of counsel in violation of his rights under the Fifth and Sixth Amendments. (Pet'rs § 2255 Mot. 5.) Petitioner also contends he was denied his right to testify in violation of the Fifth and Sixth Amendments. (Pet'rs § 2255 Mot. 5.) On November 30, 2009, Ping filed a Motion to modify the terms of his imprisonment pursuant to 18 U.S.C. § 3582. (Mot. to Modify the Terms of Imprisonment ("Pet'rs § 3582 Mot.") 1.) Petitioner also filed a letter on November 30, 2009, requesting that the Motion to modify the terms of imprisonment be consolidated with his Motion pursuant to 28 U.S.C. § 2255. (Letter to Clerk, Docket Entry No. 12.)
I. Petitioner's § 2255 Motion To Vacate
Under § 2255(a) of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a prisoner may claim the right to be released upon the ground that the sentence "was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a) (2008). The court that imposed the sentence can vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a).
According to 28 U.S.C. § 2255(f), a one-year period of limitation applies to motions under this section. The year starts from the date on which the judgment of conviction becomes final.*fn1 28 U.S.C. § 2255(f)(1). The Second Circuit has held that, for the purposes of deciding § 2255 motions, the judgment becomes final when the time for filing a direct appeal expires. Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005). The Second Circuit also decided that the provision in § 2255 is a statute of limitations and not a jurisdictional bar; courts can equitably toll the period. Smith v. McGinnis, 208 F. 3d 13, 17 (2d Cir. 2000). In order to equitably toll the one-year statute of limitations, however, the petitioner must show that extraordinary circumstances prevented him or her from filing a timely motion. Id. Moreover, the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll. Id. (citing Johnson v. Nyack Hosp., 86 F. 3d 8, 12 (2d Cir. 1996)).
In Diaz v. Kelly, the Second Circuit found that language deficiency could be considered an extraordinary circumstance that could prevent a petitioner from filing a timely motion. 515 F.3d 149 (2d Cir. 2008). The proper inquiry is to ask whether the deficiency is a severe obstacle for the prisoner endeavoring to comply with AEDPA's limitations. See id. at 154. Deficiency in the English language does not automatically allow for equitable tolling for the time limit on § 2255 motions. Id. Petitioners have the obligation to make all reasonable efforts to obtain assistance to mitigate language deficiency. Id.
Here, Petitioner's Motion is not within the one-year statute of limitations imposed by § 2255. His final sentencing hearing was on February 18, 2005. At this sentencing hearing, the Court made it clear to the Petitioner that he would be able to file ...