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Aiken v. United States

United States District Court, Second Circuit

August 20, 2013

ERNEST AIKEN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

OPINION & ORDER

JOHN F. KEENAN, District Judge.

Before the Court is Petitioner Ernest Aiken's ("Aiken" or "Petitioner") pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, Petitioner's motion is denied.

I. Background

On March 14, 2007, Petitioner pled guilty to three counts of bank robbery, in violation of 18 U.S.C. § 2133(a). At sentencing, the applicable imprisonment range under the U.S. Sentencing Guidelines ("Guidelines" or "U.S.S.G.") was determined to be 151 to 188 months, reflecting a total offense level of 29 and a criminal history category of VI. Contributing to this Guidelines range was Aiken's status as a "career offender" under U.S.S.G. § 4B1.1, which was conceded by the defense at the sentencing hearing. (Sent. Tr. at 3:19-22; id. at 5:11-13.) The Court ultimately sentenced Aiken to a prison term of fifteen years. (Id. at 10:7-21.) On January 8, 2009, the Second Circuit affirmed the sentence as both substantively and procedurally reasonable. See United States v. Aiken, No. 07-3808-Cr, 2009 WL 39969 (Jan. 8, 2009).

Petitioner filed the instant § 2255 motion on August 6, 2012. The basis for his motion is that the Supreme Court's decision in Carachuri-Rosendo v. Holder , 130 S.Ct. 2577 (2010), as interpreted by the Fourth Circuit in United States v. Simmons , 649 F.3d 237 (4th Cir. 2011) (en banc), constitutes a change in law that invalidates his classification as a "career offender" under the Guidelines.

II. Discussion

A. Legal Standard

Section 2255 allows a prisoner held in federal custody to 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)). Because Petitioner 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(f) sets forth the statute of limitations to file for relief. A movant must file within one year from the latest of four benchmark dates: (1) when the judgment of conviction becomes final; (2) when a government-created impediment to making such a motion is removed; (3) when the right asserted is recognized initially by the Supreme Court, if it has been made available retroactively to cases on collateral review; or (4) when the facts supporting a claim could have been discovered through the exercise of due diligence. See § 2255(f). Here, Aiken's conviction became final on April 8, 2009 - one year after the Second Circuit's order became final, which was ninety days after it was issued.

In certain situations, petitioners are entitled to equitable tolling of the limitations deadline on a Section 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, he 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).

B. Application

1. Petitioner's Motion Is Untimely

Petitioner argues that his motion is timely either under § 2255(f)(3) or through equitable tolling. He asserts that § 2255(f)(3) confers timeliness "if Simmons applies retroactively to this case." (ECF No. 3 at 3.[1]) He also states that he is entitled to equitable tolling because the Fourth Circuit's Simmons decision constitutes "extraordinary circumstances" by effecting a landmark change in law that applies to his case. (ECF No. 1 at 13.) Construing Aiken's submissions liberally, the Court considers both arguments, but concludes that neither is meritorious.

First, section 2255(f)(3), which permits filing one year from "when the right asserted is recognized initially by the Supreme Court, if it has been made available retroactively to cases on collateral review, " does not militate in Aiken's favor. Aiken signed his motion on August 2, 2012, and it was filed four days later. Carachuri was decided on June 14, 2010, more than two years earlier. Thus, even if Carachuri recognized a retroactively applicable right, Petitioner's motion is untimely. That Aiken filed within one year of the Fourth Circuit's Simmons decision is of no moment, because § 2255(f)(3) "unequivocally identifies one, and only one, date from which the 1-year limitation period is measured: the date on which the right asserted was initially recognized by the Supreme Court.'" Dodd v. United States , 545 U.S. 353, 357 (2005) (considering and rejecting the argument that the limitation period does not begin to run until the asserted right is made retroactive); accord Holman v. United States, 12 Civ. 986, 2013 WL 593778, at *4 (D. Conn. Feb. 15, 2013) (holding that Section 2255(f)(3) does not ...


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