United States District Court, E.D. New York
OPINION AND ORDER
ALLYNE R. ROSS, District Judge.
Rodney Reid, proceeding pro se, brings this petition under 28 U.S.C. § 2255. He argues that his sentence on five firearms convictions should be vacated under Alleyne v. United States, 133 S.Ct. 2151 (2013). For the reasons set forth below, I find that Reid's petition is time-barred and, in any event, would not succeed on the merits. Accordingly, the petition is denied.
On July 27, 2006, a jury convicted Reid of a Hobbs Act robbery conspiracy and five substantive counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and five counts of possessing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). See United States v. Reid, 05-CR-596 (ARR). On January 11, 2008, this court sentenced Reid to 150 months' imprisonment on the robbery convictions and a consecutive term of 107 years' imprisonment on the firearms convictions. In imposing the sentence on the firearms counts, the court found that defendant had "brandished" a firearm, triggering a statutory mandatory minimum sentence of seven years. 18 U.S.C. § 924(c)(1)(A)(ii). The court also found that four of Reid's five firearms convictions were "second or subsequent conviction[s]" under the statute, triggering a mandatory minimum sentence of twenty-five years on each of those four counts. 18 U.S.C. § 924(c)(1)(C)(i).
Reid appealed his conviction and sentence to the Second Circuit Court of Appeals. On direct appeal, Reid contended that: (1) his warrantless arrest and the police's subsequent search of his hotel room were unconstitutional; (2) the court improperly limited his cross-examination of the government's cooperating witnesses; (3) the government failed to meet its obligations to disclose evidence; (4) the court should have given the jury a multiple-conspiracy charge; (5) the court should have granted a new trial or hearing based on newly discovered evidence; and (6) his sentence violated the proportionality principle of the Eighth Amendment and the equal protection principle of the Fifth Amendment. The Second Circuit rejected all of these arguments and affirmed Reid's conviction and sentence by summary order on November 12, 2008. United States v. Reid, 300 F.Appx. 50 (2d Cir. 2008). The Supreme Court denied Reid's petition for certiorari on May 18, 2009. Reid v. United States, 129 S.Ct. 2382 (2009).
On September 20, 2013, Reid filed a motion with this court entitled "Motion Under Federal Rule Appellate Procedure (4) Excusable Neglect' To Restore the Right To File a First § 2255 As Non-Time Bar, Due to Ineffective Assistance of Counsel." Dkt. #1. In this motion, he argued that the statute of limitations for filing a § 2255 petition should be equitably tolled in his case due to ineffective assistance of counsel. Id. at 3. The court docketed the September 20, 2013 filing as a § 2255 petition. In a letter received on October 30, 2013, Reid stated that he did not intend that his motion be construed as a § 2255 petition and instead sought to "restore" his right to file a § 2255 petition based on "excusable neglect." Dkt. #2. On November 13, 2013, the court's Pro Se Office sent Reid a letter indicating that he could either withdraw the petition or file an amended petition under the existing docket number. Having received no further communication from Reid, the court issued an order dated February 14, 2014, stating that Reid was entitled to file a petition for habeas relief without seeking the court's permission. Dkt. #3. The order stated that, should Reid file such a petition, the court would then determine whether the petition was timely and address whether Reid is entitled to equitable tolling of the statute of limitations. Id.
Reid filed a § 2255 petition on March 3, 2014. Pet., Dkt. #5. In his petition, he asserts that the Supreme Court's decision in Alleyne applies retroactively to his case. In Alleyne, the Supreme Court held that a factor that increases the mandatory minimum sentence for a crime must be found by the jury beyond a reasonable doubt. 133 S.Ct. at 2155. Reid argues that his sentence on the firearms convictions violates Alleyne because the facts underlying the sentencing enhancements were not found by a jury beyond a reasonable doubt. Pet. 6. He also argues that his trial and appellate counsel were ineffective by failing to object to this "illegal" sentence. Id . In an exhibit to his petition, Reid argues that his petition should not be considered time-barred because his sentence and convictions were "jurisdictionally defective" and because he is actually innocent. Id., Ex. 1. He seeks re-sentencing on the firearms counts.
Under the Antiterrorism and Effective Death Penalty Act of 1998 ("AEDPA"), a federal habeas petition is subject to a one-year statute of limitations, which, in relevant part, runs from "the latest of":
(1) the date on which the judgment of conviction becomes final;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.
28 U.S.C. § 2255(f).
Reid argues that his petition is timely under 28 U.S.C. § 2255(f)(3) because he filed it within one year of the Supreme Court's decision in Alleyne, which was handed down on June 17, 2013, and which he asserts should apply retroactively to his case. Pet.'s Br. of Law for a Habeas Corpus Writ ("Pet.'s Br."), Dkt. #5, Ex. 2, at 1-7. However, contrary to Reid's assertions, Alleyne does not satisfy the requirements to extend the statute of limitations period. The Second Circuit has joined other circuits in holding that "Alleyne did not announce a new rule of law made retroactive on collateral review." United States v. Redd, 735 F.3d 88, 92 (2d Cir. 2013) (per curiam); accord United States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014); United States v. Stewart, 540 F.Appx. 171, 172 n.* (4th Cir. 2013); In re Kemper, 735 F.3d 211, 212 (5th Cir. 2013) (per curiam); Simpson v. United ...