The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1
Cleofas Contreras Vasquez ("Petitioner" or "Vasquez") was convicted of conspiracy to distribute, and possession with intent to distribute, more than five kilograms of cocaine in violation of 21 U.S.C. § 846. Vasquez, appearing pro se, petitions for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. Vasquez claims that he was denied effective assistance of counsel in violation of the Sixth Amendment, because his counsel failed to make certain evidentiary objections and failed to properly explain the consequences of pleading not guilty to the charged offense. Vasquez claims that a seven-month delay in filing his habeas petition is due to extraordinary circumstances and merits equitable tolling. For the reasons below, the petition is DENIED.
On March 29, 2005, Vasquez was charged with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. Evidence at the trial established that Vasquez was a member of an international cocaine organization responsible for moving hundreds of kilograms of cocaine from Mexico to the United States for distribution between 2002 and 2004. Vasquez transported cocaine from California to the East Coast, and drove proceeds from these cocaine sales back to California. Agents arrested Vasquez in Fela, California, in late July 2004. At trial, the government introduced transcripts of wiretapped conversations between Vasquez and certain co-conspirators -two of which are included in this habeas petition.After a three-week trial, on May 2, 2005, the jury returned a verdict that found Vasquez and his co-conspirators guilty of the charged offense. On September 6, 2005, this Court sentenced Vasquez to 168 months in prison. Vasquez timely appealed, and the Second Circuit affirmed the conviction on May 11, 2007. While the appeal was pending, Vazquez became concerned about appellate counsel's focus on his appellate challenge. Between February and October of 2007, Petitioner contacted counsel to inquire about her activity on his behalf, and contacted the Clerk for the Second Circuit about the status of the appeal. On March 18, 2008, this Court sent a letter to Petitioner with an enclosed copy of the Second Circuit's decision to affirm the District Court's judgment.*fn2 Vasquez did not file a petition for a writ of certiorari to the United States Supreme Court within the ninety-day period provided, which expired on August 11, 2007.
On March 16, 2009, seven months after the one-year statute of limitations period for habeas claims expired, Vasquez filed this petition. Petitioner contends that his trial counsel was ineffective because he failed to object to the admissibility of certain evidence, and did not adequately counsel Vasquez on the benefits of pleading guilty. Petitioner relies on Government Exhibit 74, a recorded phone call conversation between Vasquez and an individual referred to as "Don Jose." In the call, "Don Jose" makes a business proposition to Vasquez concerning "alfalfa" and asks if a friend can park a trailer containing "wood" in Vasquez's lot. Trial Transcript ("Tr.") at 411-21 (April 13-29, 2005). The government introduced this taped conversation through Agent Martinez, a DEA agent assigned to Vasquez's case. Petitioner contends that the government inappropriately had Agent Martinez establish that members of the conspiracy used "alfalfa" as a "code word" for marijuana. Petitioner asserts that the testimony should have been excluded because, (1) Martinez had no expert knowledge to establish that Petitioner was referring to marijuana; and (2) the conversation had a readily understandable meaning without Agent Martinez's interpretation. Vasquez also argues that Government Exhibit 75, a transcript of a wiretap recording referred to as "Call 121," was improperly admitted. In "Call 121," Vasquez and a co-conspirator discuss a police stop that occurred on February 4, 2004, when the police seized $985,000 from a secret compartment in a car being transported by Petitioner. Part of the call was erased due to a technical malfunction, but a transcript was made prior to erasure. That transcript was introduced into evidence through DEA Translator Octavio Avila, who testified about the missing audio portion of the call. Petitioner argues that counsel should have, but failed, to challenge the introduction of the transcript given the erasure of the original recording. Petitioner also claims that counsel should have objected to this testimony as a violation of his Confrontation Clause rights under the Sixth Amendment. The government argues that (1) the petition was untimely; and (2) Petitioner's claims are without merit.
Under 28 U.S.C. § 2255, relief is provided where it is alleged that the prisoner is in custody in violation of the Constitution or laws or treaties of the United States. See Davis v. United States, 417 U.S. 333, 344 (1974). To prevail on a § 2255 claim, petitioner must show either that (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; or (3) the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255(b); Adams v. United States, 372 F.3d 132, 134 (2d Cir. 2004); see also Rosario v. United States, 625 F. Supp. 2d 123, 126 (S.D.N.Y. 2008).The statute further provides that if any of the grounds enumerated above are present, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).
A.Statute of Limitations and Equitable Tolling
The Government first argues that Vasquez' petition should be dismissed as untimely. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a habeas petition under 28 U.S.C. § 2255 must be brought within one year of the final judgment of conviction.*fn3 The Second Circuit has determined that for § 2255 petitions, judgments become final when the Supreme Court affirms a conviction on direct review, denies a petition for a writ of certiorari, or the time for filing the petition for certiorari expires. Burrell v.United States, 467 F.3d 160, 164 (2d Cir. 2006) (citing Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005)). Vasquez's opportunity to file a petition for certiorari expired on August 11, 2007, and he therefore had until August 11, 2008 to file the petition. Vasquez, however, did not file his petition until March 16, 2009. Petitioner argues that his habeas claim is not untimely because his counsel failed to apprise him until March 18, 2008 of the fact that his direct appeal was decided in May 2007, and he filed less than a year after this notice.
As the Supreme Court recently opined with respect to a federal habeas petition filed by a state prisoner, the AEDPA statutory period may be equitably tolled. See Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). To obtain equitable tolling, a petitioner must demonstrate that (1) "extraordinary circumstances" prevented him from filing a timely petition, and; (2) he acted with reasonable diligence during the time in which he seeks to toll. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "The AEDPA limitations period will only be tolled in rare and exceptional circumstances . and where the petitioner demonstrates a causal relationship between the extraordinary circumstances and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding." Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir. 2010) (internal quotations and citations omitted). Courts should "exercise judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case." Holland, 130 S.Ct. at 2563. A lack of responsiveness by counsel to Petitioner's communications can, in certain circumstances, be considered an extraordinary circumstance. See, e.g., Morton v. Ercole, No. 08 Civ. 0252(RJS)(FM), 2010 WL 890036, at *4 (S.D.N.Y. Mar. 10, 2010) (extraordinary circumstances may exist if there is a "sufficient claim of attorney abandonment where a diligent client persistently questioned the lawyer as to whether he had filed the complaint in time") (internal quotations and citation omitted); see also Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir. 2003) (counsel's actions "were far enough outside the range of behavior that reasonably could be expected by a client that they may be considered 'extraordinary.').
Here, although counsel apparently failed to communicate with Vasquez about the status of his direct appeal, it is not a sufficiently "extraordinary circumstance" to toll the statutory period, because it did not prevent Vasquez from filing a timely petition. See Smith, 208 F.3d at 17. Vasquez exercised reasonable diligence by writing to his counsel and the Clerk of the Court for the Second Circuit to inquire about the status of his appeal. See Paredes-Silva v. United States, 632 F. Supp. 2d 349, 353 (S.D.N.Y. 2009) (petitioner acted with "a certain level of diligence" by writing two letters to the Second Circuit and filing two motions in a case where counsel did not inform petitioner of the result of his appeal); see also Holland, 130 S.Ct. at 2565 (defendant who wrote his attorney "numerous letters seeking crucial information" may have exhibited reasonable diligence). But the more important fact is that Vasquez was made aware by this Court on March 18, 2008 -a little less than five months prior to the statutory deadline to file the petition- that his direct appeal had been denied by the Second Circuit. Petitioner could, and should, have used those five months to move forward, and he provides no reason why he failed to do so. See Urena v. United States, 03 Civ. 6722 (JFK), 2005 WL 1653888, at *3 (S.D.N.Y July 13, 2005) (noting that a petitioner who received notice five months prior to the deadline had "sufficient time to prepare and file his petition"); see also Mandarino v. United States, No. 98 Civ. 590(LBS), 1998 WL 729703, *2 (S.D.N.Y. Oct. 16, 1998) (denying equitable tolling when petitioner still had time in which to file his petition after receiving delayed notification of his final conviction). Since Petitioner was on notice in March of 2008 that this Court's judgment was affirmed on direct appeal, there is no "causal relationship" between his counsel's lack of communication and the "lateness of his filing." See Bolarinwa, 593 F.3d at 231. As such, Vazquez' correspondence cannot toll the statutory period for the five months in which he knew or should have known that he could file a timely habeas petition. See Hizbullahankhamon v. United States, 255 F.3d 65, 76 (2d Cir. 2001) (petitioner placed in solitary confinement for only a portion of statutory period is unable to show that confinement "prevented him from filing a timely habeas petition"). While counsel's unresponsiveness is unfortunate and in my view reprehensible, said conduct fails to warrant equitable tolling because Vasquez was independently aware of the appeal decision by virtue of notice from the District Court.
B. Ineffective Assistance of Counsel
Even if this Court were to equitably toll the statutory period, Petitioner's claims would fail on their merits. To establish a claim for ineffective assistance of counsel, petitioner must show that "(1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but-for counsel's errors, the result of the proceeding would have been different." Contino v. United States, 535 F.3d 124, 128 (2d Cir. 2008) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). When considering the "reasonableness" part of the test, the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004) (quoting Strickland, 466 U.S. at 689). A court may bypass the reasonableness prong initially, or ...