Felix Gonzalez, Pro Se, Petitioner.
United States Attorney, Southern District of New York Aimee Hector, Christopher D. Frey, for Respondent United States of America Preet Bharara.
OPINION & ORDER
JOHN F. KEENAN, District Judge.
Petitioner Felix Gonzalez ("Gonzalez" or "Petitioner") has filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("Section 2255"). For the following reasons, Gonzalez's motion is denied.
Gonzalez was indicted in March 2010, along with five codefendants, for their involvement in a narcotics trafficking operation that brought multi-kilogram quantities of cocaine and heroin from Miami, Florida and Southern California to the New York City area for distribution. Presentence Investigation Report ("PSR") ¶ 12(a). Gonzalez's role in the operation was to transport narcotics and narcotics proceeds and occasionally to perform "drug-related" tasks for the operation's leader. Id. at (c). Count One of the indictment against Gonzalez and his codefendants charged that, from at least September 2009 up to and including February 2010, the defendants conspired to distribute and possess with intent to distribute 1 kilogram and more of heroin, in violation of 21 U.S.C. § 841(b)(1)(A), and 5 kilograms and more of cocaine, in violation of 21 U.S.C. § 841(b)(1)(A).
On March 11, 2011, Gonzalez pleaded guilty pursuant to a plea agreement with the Government. The agreement encompassed a lesser included offense: conspiracy to distribute, and possess with intent to distribute, 100 grams and more of mixtures and substances containing a detectable amount of heroin and 500 grams and more of mixtures and substances containing a detectable amount of cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). Plea Agreement ("PA") at 1. The agreement between the Government and Gonzalez stipulated that his sentencing range under the United States Sentencing Guidelines was 188 to 235 months. Id. at 4. On September 6, 2011, Gonzalez was sentenced to 144 months imprisonment to be followed by four years supervised release. The Court varied from the Guidelines in part because of Gonzalez's "model" behavior while he was in jail following his arrest. See Sentencing Tr. at 11. Specifically, the Court cited the fact that Gonzalez set up a computer lab at the Metropolitan Correctional Center. See id.
Two weeks after his sentencing, on September 20, 2011, Gonzalez filed a Notice of Appeal. On September 30, 2011, Gonzalez moved to withdraw his appeal with prejudice. The United States Court of Appeals for the Second Circuit granted his motion on October 27, 2011. Gonzalez's Section 2255 motion was filed with the Clerk's Office more than a year later, on November 8, 2012. He challenges his conviction on three grounds: (1) that his plea was involuntary; (2) that the plea violated due process; and (3) that he received ineffective assistance of counsel. The Government has filed a memorandum in opposition to Gonzalez's Section 2255 motion, and Gonzalez timely submitted a reply memorandum.
II. Section 2255 Standard Of Review
Under Section 2255, a prisoner held in federal custody may collaterally challenge his federal conviction or sentence. 28 U.S.C. § 2255(a). To obtain relief under this provision, a petitioner must establish "a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun , 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States , 368 U.S. 424, 428 (1962)). As Gonzalez is proceeding pro se, his submissions will be "liberally construed in his favor, " Simmons v. Abruzzo , 49 F.3d 83, 87 (2d Cir. 1995) (citing Haines v. Kerner , 404 U.S. 519, 520 (1972)), and will be read "to raise the strongest arguments that they suggest." Green v. United States , 260 F.3d 78, 83 (2d Cir. 2001) (citing Graham v. Henderson , 89 F.3d 75, 79 (2d Cir. 1996)).
Section 2255 states that a petitioner must bring a motion to vacate, set aside, or correct his sentence within one year of the date on which his conviction became final. See 28 U.S.C. § 2255(f)(1). A conviction becomes final when the opportunity for filing an appeal expires. See Clay v. United States , 537 U.S. 522, 532 (2003); Wims v. United States , 225 F.3d 186, 188 (2d Cir. 2000). Gonzalez's conviction became final on October 27, 2011, when the Court of Appeals for the Second Circuit granted his motion to withdraw his notice of appeal. The Government contends that Gonzalez's motion is untimely because it was not filed with the Clerk's office until November 8, 2012, about two weeks after the one-year limitation expired.
For a pro se motion to be deemed "filed" when the petitioner is in federal prison, it must be placed into the prison mailing system before the expiration of the time limit. Noble v. Kelly , 246 F.3d 93, 97 (2d Cir. 2001) (citing Houston v. Lack , 487 U.S. 266 (1988)). Gonzalez's petition does not reflect when it was placed into the prison mailing system, but it appears that Gonzalez signed it on October 2, 2012. Pet'r Mot. at 14. ...