The opinion of the court was delivered by: John F. Keenan, United States District Judge
Before the Court is Petitioner Kenneth Stevens' ("Stevens" or "Petitioner") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Stevens claims that defense counsel provided ineffective assistance by permitting the participation of a non-attorney and convicted felon on his defense team, and for various trial strategy choices. For the reasons that follow, the motion is denied.
Indictment S1 03 Cr. 669 was filed on or about October 27, 2003, charging Stevens with four robberies in violation of 18 U.S.C. § 2113(a) in April and May of 2003 "by passing a teller a note demanding money and indicating that [he] had a bomb."
The Government established Stevens' involvement in the four charged robberies through overwhelming evidence, including testimony of the victim bank tellers, surveillance video and photographs of a person closely resembling Stevens taken during the robberies, and the demand notes that were handed to the victims, three of which bore his fingerprints. Most damning to Stevens' cause was the fact that he was arrested minutes after the fourth robbery a few blocks from the bank in possession of: a deposit slip which read "I have a bomb. Give me all the money"; a black plastic bag containing not a bomb, but a coffee canister; and $4,700 in cash - the amount stolen from the bank minutes beforehand.
Stevens was represented at trial by appointed counsel, Michael Young, Esq., then an attorney on the Criminal Justice Act panel. Mr. Young did not call witnesses or present evidence for the defense, but did cross-examine the Government's witnesses. Throughout the trial, Mr. Young was joined at the defense counsel table by Mr. Harvey Alter. During voir dire, Mr. Young represented to the Court's deputy clerk that Mr. Alter was his associate, and the Court referred to Mr. Alter as such at trial. Mr. Alter attended sidebars intended for attorneys only. On the daily copies of the trial transcript, Mr. Alter's name was listed beneath Mr. Young's with the designation "Attorneys for Defendant." Mr. Young and Mr. Alter did not correct the Court's understanding.
On September 20, 2004, a jury found Stevens guilty of all charges. After trial, the Court learned that Mr. Alter was not an attorney and was a twice convicted felon. Mr. Young withdrew as Stevens' attorney and the Court appointed new counsel for sentencing. The Court, finding that Petitioner was a "career offender" under the Sentencing Guidelines, sentenced him to 216 months' imprisonment.
By Summary Order dated March 12, 2007, the Court of Appeals affirmed Stevens' conviction and sentence. Through appellate counsel, Tina Schneider, Esq., Stevens filed a petition for a writ of certiorari to the United States Supreme Court on April 23, 2007. The petition was denied on May 27, 2007, but Stephens was not informed of that fact at the time. On February 11, 2009, Stevens wrote to Ms. Schneider inquiring as to the status of his petition. On February 12, 2009, Ms. Schneider informed Stevens that his petition had been denied. On March 9, 2009, Stevens filed the instant petition.
A. The Petition is Untimely
Under 28 U.S.C. § 2255, a petitioner has one year from the finalization of a conviction to file a petition for habeas corpus. As the Supreme Court denied certiorari on May 27, 2007, Petitioner's filing missed that deadline by over nine months.
In certain situations, petitioners are entitled to equitable tolling of the limitations deadline on a § 2255 motion. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). A petitioner must satisfy two elements to benefit from equitable tolling. First, a petitioner must show that he exercised "reasonable diligence" during the limitations period, and second, that "extraordinary circumstances" precluded him from timely filing. Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001). Generally, the error of an attorney is not sufficiently "'extraordinary' or 'rare and exceptional'" to warrant equitable tolling. Sanchez-Butriago v. United States, No. 00 Civ. 8820, 2003 WL 354977, at *2 (S.D.N.Y. Feb. 14, 2003).
There is nothing in the record from which the Court can conclude Petitioner exercised diligence in monitoring the limitations period. Petitioner sent a single letter to his counsel roughly a year and nine months after his conviction became final, nine months after the deadline had lapsed. The Second Circuit has described an unexplained one year and eight and a half month "period of inactivity" as demonstrative of "a marked lack of diligence." Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000). Likewise, Petitioner's failure to contact his attorney until nine months after the year-long limitations period lapsed cannot be considered diligent behavior.
Even if Petitioner had acted diligently but, in light of his pro se status, was otherwise unable to bring such evidence to the Court's attention, Petitioner nonetheless does not demonstrate that "extraordinary circumstances" kept him from timely filing. Having represented clients seeking Supreme Court review in the past, Ms. Schneider's failure to monitor the progress of the petition for certiorari and discover that the limitations period for a habeas motion had begun is precisely the type of "garden variety" attorney error that does not constitute an extraordinary circumstance necessitating equitable tolling. See Holland v. Florida, --- U.S. ---, 130 S.Ct. 2549, 2566, 177 L.Ed. 2d 130 (2010) ("[A] garden ...