The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge:*fn1
Petitioner Jose Casas plead guilty and was convicted of a Hobbs Act robbery, pursuant to 18 U.S.C. § 1951, and possession of a handgun, pursuant to 18 U.S.C. § 924(c)(1)(A). He was sentenced to 240 months for the first count and 60 months for the second count, to run consecutively for a total of 300 months. Casas did not take a direct appeal.
Petitioner, pro se, now moves for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 to have this Court correct his sentence. He contends that, in light of U.S. v. Whitley, 529 F.3d 150 (2d Cir. 2008) and U.S. v. Williams, 558 F.3d 166 (2d Cir. 2009), the mandatory minimum sentence for possession of a handgun should not have been imposed because he was also subject to imprisonment for a Hobbs Act robbery. The Government objects, arguing that his claim is (1) untimely, (2) procedurally defaulted, and (3) without merit. For the reasons below, his petition is DENIED.
On August 27, 1999, Casas, with other members of the Restrepo Organization, robbed the American Sirloin Meat Company located in the Bronx, New York. Donald Pagani, an employee of the company and a retired police detective, was transporting cash from the company to deposit in a bank. The crew intercepted Pagani and robbed him. In the process, Pagani was shot and killed.
Casas's role was to conduct surveillance and drive other participants both to and from the crime scene, with the knowledge that they were carrying firearms. On February 23, 2005, Casas plead guilty to Hobbs Act robbery, pursuant to 18 U.S.C. § 1951, and possession of a handgun, pursuant to 18 U.S.C. § 924(c)(1)(A).
28 U.S.C. § 2255 provides that to obtain relief, the defendant must show that the sentence: "(1) was imposed in violation of the U.S. Constitution or the laws of the United States; or (2) was entered by a court without jurisdiction to impose the sentence; or (3) exceeded the maximum detention authorized by law; or (4) is otherwise subject to collateral attack." Id.; see 28 U.S.C. § 2255(b).
The Government contends that the petition should be dismissed as untimely. Petitioner claims his application is timely under 28 U.S.C. § 2255(f)(4), which provides that "[a] 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of- . (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." Petitioner argues that he filed his petition within one year of discovering facts supporting his claim, i.e. the holdings in Whitley and Williams.
Petitioner's application is still untimely. Williams, the later of the two cases, was decided on March 5, 2009. Petitioner's current petition was filed nearly a year and three months later on June 2, 2010, well outside the one year ...