The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1
On October 1, 2009, Pascual A. Ciriacos ("Petitioner") pleaded guilty to one count of conspiracy to distribute and possession with intent to distribute cocaine pursuant to 21 U.S.C. § 846. Petitioner now moves to vacate, set aside, or correct his federal criminal sentence pursuant to 28 U.S.C. § 2255. For the reasons stated below, the petition is denied.
On April 21, 2011, Petitioner, represented by counsel, filed the present motion. Petitioner makes two claims: "1. Petitioner's conviction, given his limited knowledge of the English language was obtained in violation of the Fifth and Sixth Amendments of the United States Constitution. 2. Petitioner's sentence was obtained, given his fragile health, in a manner that it is a cruel and unusual punishment, and in violation of the Eight[h] Amendment of the United States Constitution." Pet. 1--2. Counsel requested a sixty-day extension of time to file a subsequent memorandum of law in support, and counsel filed the memorandum 168 days later on October 5, 2011. The Court never ruled on the requested extension. The Government filed a brief in opposition on November 4, 2011.
To be granted relief, Petitioner must show "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . ." 28 U.S.C. § 2255(a).
A.The petition lacks specificity
The petition "must specify all the grounds for relief which are available to the [Petitioner] and of which he has or, by the exercise of reasonable diligence, should have knowledge and shall set forth in summary form the facts supporting each of the grounds thus specified." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal quotation marks omitted). Although Petitioner has based his grounds for relief on the Fifth, Sixth, and Eighth Amendments, no facts are offered in support of the claims other than his limited knowledge of English and fragile health. Petitioner sought so far as I can tell permission to file an additional memorandum. That memorandum was filed and does not advance his cause.*fn2 Rather, it argues:
Due to the particular circumstances of this case there exists a clear possibility that any kind of sentence against Petitioner is a form of cruel and unusual punishment . . . .
It is interesting to note that Courts are concerned with how non understanding of [a] proceeding can affect Due Process . . .
To demand from a prisoner knowledge of the English language without regard of his physical, and mental capacity, in order to provide him with a Court ordered treatment seems like a Due Process and Equal Protection violation.
At present there are prison facilities far from New York where the program is conducted in Spanish, but to transfer [Petitioner] is not the best remedy as he needs to be close to his family and to medical treatment.
Pet'r's Br. 2--3. With the possible exception of what "is not the best remedy", these arguments are not even conclusory. This is not the first time that counsel for Petitioner has disappointed courts in this Circuit. See, e.g., Reid v. Gonzales, 478 F.3d 510, 511--13 (2d Cir. 2007) ("Petitioner's counsel presents this Court with a series of sparse and unsupported arguments . . . ."); Lewis v. Gonzales, 481 F.3d 125, 128 (2d Cir. 2007) (chastising counsel for failing to review his mail in a timely fashion); Laguerre v. Gonzales, 183 F. App'x 146, 147 (2d Cir. 2006) ("[Petitioner's] perfunctory brief specifies no ground or argument that would support relief.").
With significant credit to the United States Attorney, the substance of Petitioner's motion can be stated as follows: "(i) his sentence violated the Eighth Amendment, (ii) the requirement that [Petitioner] speak English as a prerequisite for admission into the Bureau of Prison Residential Drug Abuse Program ('RDAP') at Fort Dix . . . violates his due process and equal protection rights, and (iii) expected delays in ...