United States District Court, E.D. New York
NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE.
15, 2016, this court sentenced Petitioner Awilda Rosario to
thirty-six months of imprisonment, to be followed by one year
of supervised release. (June 5, 2016 Min. Entry (Dkt. 29);
Judgment (Dkt. 30).) Currently before the court is Ms.
Rosario's pro se petition to vacate her sentence
pursuant to 28 U.S.C. § 2255. (See Pet. to
Vacate ("Pet.") (Dkt. 39).) In support of her
petition, Ms. Rosario argues that she received
constitutionally ineffective assistance of counsel from her
former attorney, Mr. Albert Y. Dayan. (Id.) For the
following reasons, Ms. Rosario's petition is DENIED.
December 15, 2014, a grand jury sitting in Brooklyn, New
York, returned an indictment against Ms. Rosario, charging
her with 30 counts of aiding and assisting in the preparation
and presentation of false and fraudulent U.S. individual
income tax returns, in violation of 26 U.S.C. § 7206(2).
(See Indictment (Dkt. 1).) Ms. Rosario retained Mr. Dayan,
who entered his appearance on January 9, 2015. (See
Not. of Attorney Appearance (Dkt. 10).) On September 21,
2015, she pleaded guilty to Counts 1 and 2 of the indictment
pursuant to a plea agreement with the United States.
(See Sept. 21, 2015 Min. Entry (Dkt. 23); Plea
Agreement (Dkt. 42-1).) In the plea agreement, Ms. Rosario
agreed not to "file an appeal or otherwise challenge, by
petition pursuant to 28 U.S.C. § 2255 or any other
provision, the conviction or sentence" if the Court
imposed a sentence of 41 months or below. (Plea Agreement
¶ 4.) On June 15, 2016, the court sentenced Ms. Rosario
to 36 months imprisonment, one year of supervised release,
and a $6, 000 fine, and ordered payment of restitution in the
amount of $607, 904.00. (Judgment (Dkt. 30).) On August 24,
2016, Ms. Rosario replaced her attorney, Mr. Dayan, with Ms.
Pamela Hayes. (Not. of Attorney Appearance (Dkt. 33).)
October 17, 2017, now proceeding pro se, Ms. Rosario
filed a motion to reduce her sentence pursuant to 18 U.S.C.
§ 3742. (See Mot. to Reduce Sentence (Dkt. 36).) The
Court denied that motion on February 12, 2018. (See
Feb. 12, 2018 (Dkt. 38).) The court then received the present
petition to vacate on October 2, 2018. (See
Pet.) Ms. Rosario was released from prison on July 22, 2019.
See Bureau of Prisons Federal Inmate Locator,
https://www.bop.gov/mobile/fmdinmate/byname.jsp (search for
"Awilda Rosario") (last visited Dec. 20, 2019). She
is currently serving a term of supervised release.
(See Dec. 10, 2019 Order (Dkt. 45).)
2255, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), permits a prisoner
who was sentenced in federal court to "move the court
which imposed the sentence to vacate, set aside, or correct
the sentence" when she claims "the right to be
released upon the ground that the sentence was imposed,"
among other reasons, "in violation of the Constitution
or laws of the United States." 28 U.S.C. § 2255(a).
Petitions made under § 2255 must be filed by no later
than one year from:
(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
exercise of due diligence.
28 U.S.C. § 2255(f); see also Moshier v. United
States, 402 F.3d 116, 118 (2d Cir. 2005). And "for
purposes of § 2255 motions, an unappealed federal
criminal judgment becomes final when the time for filing a
direct appeal expires." Moshier, 402 F.3d at
court imposed Ms. Rosario's sentence on June 15, 2016 and
filed the judgment of conviction on July 18, 2016.
(Judgment.) She did not file a direct appeal, and so the
conviction became final on August 1, 2016. See
Moshier, 402 F.3d at 118; Fed. R. App. P.
4(b)(1)(A). And, as the Government states, Ms. Rosario has
not asserted that she was prevented from making her motion by
any government action, that she is asserting a right newly
established by the Supreme Court, or that her petition relies
on facts she discovered after her judgment became final.
Therefore, her time to file a habeas petition expired on
August 1, 2017, over a year before the court first received
it. See Moshier, 402 F.3d at 118; 28 U.S.C. §
2255. Moreover, equitable tolling does not apply in this case
because Ms. Rosario has presented no "rare and
exceptional circumstances" warranting such tolling.
See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.
2000) (citation omitted) (alteration adopted).
foregoing reasons, Ms. Rosario's (Dkt. 39) petition to
vacate is DENIED as time-barred. Because Ms. Rosario has not
made a substantial showing of a denial of a constitutional
right, a certificate of appealability will not be issued. See
28 U.S.C. § 2253(c). In addition, this Court certifies
under 28 U.S.C. § 1915(a)(3) that any appeal from this
Order would not be taken in good faith. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
Clerk of Court is respectfully DIRECTED to mail a copy of
this order by certified mail, return receipt requested, to
pro se Petitioner Awilda Rosario at her address of
 The petition was not filed on the
docket until February 25, ...