United States District Court, S.D. New York
JOEL A. HERNANDEZ, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
Kevin Castel United States District Judge.
Joel A. Hernandez, who is proceeding on his own behalf
pro se, moves to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255. In August 2013, a
jury found Hernandez guilty of one count of conspiring to
distribute and possess with intent to distribute heroin. This
Court sentenced Hernandez to 78 months' imprisonment and
five years of supervised release.
now asserts that he did not receive the effective assistance
of counsel guaranteed by the Sixth Amendment to the U.S.
Constitution. For reasons to be explained, his motion is
April 8, 2013, the government filed a single-count
superseding indictment against Hernandez. (12 Cr. 809, Docket
# 20.) It charged Hernandez with conspiracy to distribute and
possess with intent to distribute a controlled substance in
violation of 21 U.S.C. § 841(a)(1). (Id.) The
controlled substance involved in the offense was one kilogram
and more of mixtures and substances containing a detectable
amount of heroin, in violation of 21 U.S.C. §§ 812
and 841(b)(1)(A). (Id.)
trial commenced on July 29, 2013. The government presented
evidence that Hernandez conspired to distribute heroin in
2012. Co-conspirators Edy Pena and Jorge Alvarez supplied
Hernandez with heroin for resale. Hernandez and Alvarez were
arrested as they attempted to buy one kilogram of heroin from
an undercover federal agent. Pena was arrested separately.
Pena testified against Hernandez as a cooperating witness,
stating that he was a heroin wholesaler whose customers
included Hernandez and Alvarez.
dispute between Pena and Hernandez, Alvarez began looking for
another wholesaler. Alvarez came into contact with an
undercover agent who was known to him as Ceasar Dupree, and
the two began to negotiate a heroin purchase. On July 30,
2012, the undercover agent met Alvarez and Hernandez at a
fast food restaurant, to purportedly consummate a heroin
transaction. Hernandez remained in the restaurant with the
money to be used for the purchase, while Alvarez went outside
with the undercover agent purportedly to transfer possession
of the heroin. At this point in time police arrested both
Hernandez and Alvarez.
briefly recalled one of the government's witnesses in an
attempt to impeach her and did not present any other
August 6, 2013, a jury returned a verdict of guilty as to the
single count of the indictment. On May 27, 2014, this Court
sentenced Hernandez to 78 months' imprisonment.
appealed his conviction to the United States Court of Appeals
for the Second Circuit. He argued, among other things, that
the court should vacate the judgment because the district
court at trial permitted the government to introduce
allegedly improper opinion testimony from law enforcement
witnesses and allegedly inadmissible hearsay. See United
States v. Hernandez, 604 F. App'x 53 (2d Cir. 2015).
The Second Circuit affirmed Hernandez's conviction.
Id. at 55.
Petitioner's Claim is Time-Barred
claim is time-barred under 28 U.S.C. § 2255(f). Section
2255(f) creates a one-year statute of limitations for motions
made under section 2255. The limitation period begins to run
on the latest of the following:
(1) the date on which the judgment of conviction becomes
final; (2) the date on which the impediment to making a
motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action; (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; or
(4) the ...