United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
VALERIE CAPRONI, United States District Judge
Hooda (“Petitioner”), proceeding pro se,
moves to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255. Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (hereafter, “Pet’r Mot.”),
Dkt. 1. Petitioner alleges in his section 2255 petition that
he received ineffective assistance of counsel. For the
following reasons, Petitioner’s Motion is DISMISSED as
pleaded guilty to conspiracy to commit access device fraud
and aggravated identity theft in connection with a scheme
involving fraudulently obtained debit and credit cards.
Transcript of March 11, 2015 Court Appearance (hereafter,
“March 11 Tr.”), United States v. Singh,
No. 14 CR. 796 (VEC-2), (S.D.N.Y. 2014), Dkt. 54, at 27. On
July 23, 2015, this Court sentenced Petitioner principally to
time served for the conspiracy count and two years’
imprisonment for aggravated identity theft, to run
consecutively to the conspiracy sentence. Additionally, the
Court ordered him to pay approximately $18,000 in forfeiture
and a similar amount in restitution. Transcript of July 23,
2015 Court Appearance (hereafter, “July 23 Tr.”),
Singh, Dkt. 78, at 24–26. Judgment was entered
on July 23, 2015. Judgment, Singh, Dkt. 77, at 1.
Petitioner did not pursue a timely direct appeal of his
conviction. Order on Motion for Leave to Appeal
(hereafter, “Leave to Appeal Order”),
Singh, Dkt. 97, at 2.
September 22, 2016, Petitioner filed this 28 U.S.C. §
2255 petition alleging ineffective assistance of his counsel.
Pet’r Mot. at 1; Memorandum of Law in Support Motion to
Vacate, Set, Aside or Correct Sentence (hereafter,
“Pet’r Mem.”), Dkt. 2, at 1. Petitioner
asserts that he received ineffective assistance of counsel
because his counsel: (1) forced him to plead guilty despite
the Government’s “failure to show that Petitioner
knowingly committed aggravated identity theft;” and (2)
did not contest the “improper imposition of forfeiture
as restitution.” Pet’r Mem. at 2.
October 17, 2016, this Court directed Petitioner to show
cause why his motion should not be denied as time-barred.
Order Directing Affirmation (hereafter, “Order”),
Dkt. 4, at 2. Petitioner subsequently filed an Affirmation
stating that his lateness was due to: (1) inadequate access
to prison library resources; (2) his language barriers; and
(3) denial of access to his legal files. Affirmation, Dkt. 5,
at 1-3. On February 15, 2017, the Government filed a
memorandum in opposition to the Petitioner’s Motion,
arguing that Petitioner’s Motion is procedurally barred
as untimely under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) and that
Petitioner’s counsel was not ineffective. Memorandum of
Law of the United States in Opposition to Petitioner’s
Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct His Sentence (hereafter, “Gov.
Mem.”), Singh, Dkt. 130, at
established a one-year statute of limitations for the filing
of a petition pursuant to 28 U.S.C. § 2255. See
28 U.S.C. § 2255(f). A section 2255 petition is timely
only if it is filed within one year from the latest of: (1)
the judgment of conviction becoming final; (2) a
government-created impediment to making such a motion being
removed; (3) the right asserted being initially recognized by
the Supreme Court, if the right has been made retroactively
applicable to cases on collateral review; or (4) the facts
supporting the claims being discoverable through the exercise
of due diligence. See 28 U.S.C. § 2255(f).
Because Petitioner has not alleged that the Government
impeded the filing of his petition, that the Supreme Court
has recently recognized any rights he is asserting, or the
discovery of any new facts supporting his claim, the relevant
date for calculating the statute of limitations is the date
on which the judgment of conviction became final.
unappealed federal criminal judgment becomes final when the
time for filing a direct appeal expires.” Moshier
v. United States, 402 F.3d 116, 118 (2d Cir. 2005).
Because a criminal defendant must file a notice of appeal
within fourteen days after the entry of judgment, an
unappealed conviction becomes “final” for the
purposes of the one-year AEDPA limitations period fourteen
days after judgment is entered. See Fed. R. App. P.
was entered in Petitioner’s criminal case on July 23,
2015, and Petitioner did not pursue a timely direct appeal of
his conviction. Leave to Appeal Order at 2. Therefore,
Petitioner’s conviction became final on August 6, 2015.
To be timely, then, Petitioner’s section 2255 petition
must have been filed on or before August 6, 2016.
Petitioner’s habeas petition, which was dated September
1, 2016, Pet’r Mot. at 14, is, therefore,
one-year statute of limitations for section 2255 petitions
may be equitably tolled. Green v. United States, 260
F.3d 78, 82 (2d Cir. 2001). Equitable tolling is available
only in rare and exceptional circumstances. Smith v.
McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). To equitably
toll the statute, the petitioner must establish that (a)
“extraordinary circumstances” prevented him from
filing a timely petition, and (b) he acted with
“reasonable diligence” during the period for
which he seeks tolling. Martinez v. Superintendent of E.
Corr. Facility, 806 F.3d 27, 31 (2d Cir. 2015).
argues that his habeas petition should not be time-barred
because he had inadequate access to prison library resources,
is unable to read or write English, and was unable to procure
his legal files from the attorney who represented him.
Affirmation at 1–5. Although the Court is sympathetic
to Petitioner’s circumstances, Petitioner’s
reasons do not provide a basis for equitable tolling.
See, e.g., Grullon v. United States, No. 05
CIV. 1810 (DAB), 2007 WL 2460643, at *1 (S.D.N.Y. Aug. 27,
2007) (restricted prison law library access is not a
“circumstance so rare or exceptional to warrant any
tolling of the statute of limitations.”); Zhang v.
United States, No. 01 CIV. 2591 (DAB), 2002 WL 392295,
at *3 (S.D.N.Y. Mar. 13, 2002) (limited knowledge of the
English language, absence of legal assistance program at the
correctional facility, and inability to communicate with
assistants at the law library insufficient grounds for
equitable tolling); Davis v. McCoy, No. 00 CIV. 1681
(NRB), 2000 WL 973752, at *2 (S.D.N.Y. July 14, 2000)
(“inability to obtain documents does not rise to the
level of extraordinary circumstances”).
foregoing reasons, Petitioner’s 28 U.S.C. § 2255
habeas petition is time-barred because it was not timely
filed, and Petitioner has not established that he is entitled
to equitable ...