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Attanasio v. United States

United States District Court, E.D. New York

July 7, 2017

LOUIS ATTANASIO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM & ORDER

          NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE.

         Petitioner Louis Attanasio brings this pro se petition (the "Petition") for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. (Pet. (Dkt. 1).) Petitioner argues that, in light of Peugh v. United States, 133 S.Ct. 2072 (2013), he should be resentenced and deemed eligible for parole under the Parole Commission and Re-Organization Act of 1976 ("PCRA"), which was in effect when at least one of the predicate acts to his racketeering offense was committed. (Mem. in Supp. of Pet. ("Mem.") (Dkt. 2)[1] at 13-14.) Petitioner avers only that he is eligible for parole; he does not otherwise challenge the length of his sentence. (See Id. at 1.) For the following reasons, the Petition is DENIED as untimely.

         I. BACKGROUND

         A. Procedural History

         On August 17, 2006, Petitioner entered a guilty plea before this court to one count of racketeering conspiracy and admitted his participation in the following racketeering acts: (1) loansharking conspiracy, extending from January 1980 to December 2000; and (2) the 1984 conspiracy to murder Cesare Bonventre. (Min. Entry (Crim. Dkt. 905)[2]; see Superseding Indictment (Crim. Dkt. 1).) The court sentenced Petitioner to 180 months' imprisonment, followed by a three-year term of supervised release. (See J. (Crim. Dkt. 928).) Petitioner was sentenced under the Sentencing Reform Act of 1984 ("SRA"), which repealed and replaced the PCRA and became effective on November 1, 1987. See Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987. The SRA "eliminated parole in the federal system and directed the Sentencing Commission to promulgate uniform guidelines that would be binding on federal courts at sentencing."[3] Peugh, 133 S.Ct at 2079. Petitioner did not appeal his sentence.

         B. The Present 28 U.S.C § 2255 Motion

         On October 25, 2013, Petitioner filed the present § 2255 motion to vacate, set aside, or correct his sentence. (Pet.) Petitioner asserts that his sentence violates (1) the Ex Post Facto Clause of the United States Constitution and (2) the General Savings statute, 1 U.S.C. § 109. (See Mem. at 10, 13.) He contends that while his sentence for the racketeering conspiracy was predicated on two acts-a murder conspiracy in 1984 and an extortion conspiracy continuing from January 1980 until December 2000-the "main part" of his sentence was determined by the murder conspiracy. (Pet. at 6.) Because the murder conspiracy took place in 1984, before the effective date of the SRA, Petitioner asserts that he should have been sentenced under the PCRA and thus eligible for parole. (See Mem. at 11-13.) On May 15, 2015, Petitioner filed a motion to expedite the court's review of his Petition. (Mot. to Expedite (Dkt. 20).)

         The Government responds that Petitioner's claims are untimely and that the General Savings statute claim is also procedurally barred.[4] (Gov't Opp'n to Pet. ("Gov't Opp'n") (Dkt. 15) at 4, 7.)

         II. DISCUSSION

         The threshold question for this court is whether the Petition is timely. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, § 2255 petitions are subject to a one-year statute of limitations. The one-year limitations period beings to run from the latest of:

(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 date on which the facts supporting the claim or claims presented could have been discovered through the ...

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