DONALD C. NUGENT, District Judge.
This matter is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. (Docket #164 in Case No. 5:10 CR 189.) For the reasons set forth below, Petitioner's Motion is DENIED.
Om March 31, 2010, a criminal Complaint was filed against Petitioner for conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1343. (Docket #1.) On April 27, 2010, a Federal grand jury returned a 27-count indictment against Petitioner and others. Petitioner was charged as follows: Count 1— Conspiracy to Commit Wire Fraud in violation of 18 U.S.C. § 1349; Counts 2-26 — Access Device Fraud in violation of 18 U.S.C. § 1029(a)(2); and, Count 27 — Aggravated Identity Theft in violation of 18 U.S.C. § 1028A(a)(1).
On October 27, 2010, Petitioner executed a written Plea Agreement, pleading guilty to Counts 1 and 27. The written Plea Agreement was read into the record in its entirety and was signed by Petitioner. On January 18, 2011, Petitioner was sentenced to 150 months imprisonment on Count 1 and 24 months imprisonment on Count 27, to run consecutively; 5 years supervised release; a special assessment of $200.00; and, $254,546,32 restitution. Counts 2-26 were dismissed. Judgment was docketed January 27, 2011. An Amended Judgment was docketed February 1, 2011 to correct a typographical error.
Petitioner did not appeal his conviction. On February 15, 2011, Petitioner's conviction became final. On April 12, 2012, Petitioner filed his Section 2255 Motion with this Court. Petitioner sets forth three separate Grounds for Relief:
In addition to the foregoing, Petitioner offers the following explanation as to why his Petition was filed beyond the one-year statute of limitations set forth in 28 U.S.C. § 2255:
On May 15, 2012, the Government filed its Response to Petitioner's Motion. (Docket #171.) The Government argues that the Petition is untimely. The Government notes that Petitioner was sentenced on January 18, 2011; an Amended Judgment was signed on February 1, 2011; and, that his conviction became final on February 15, 2011. Petitioner did not file his Section 2255 Petition until April 12, 2012, more than one year after his conviction became final and, therefore, beyond the AEDPA's statute of limitations. The Government argues there is no basis upon which the one-year limitation period may be equitably tolled, given the fact that the Plea Agreement referenced the possibility of relief under Section 2255 and Petitioner had previous knowledge of the law. The Government notes that there are no specific forms for filing a Section 2255 motion and that Petitioner's assertion that the forms were sent to him late is insufficient to toll the statute of limitations.
Further, the Government argues that even if Petitioner had filed within the one-year statutory time period, Petitioner expressly waived the right to attack his sentence; his claim of ineffective assistance of counsel is without merit; and, that he was sentenced appropriately.
On June 13, 2012, Petitioner filed a rebuttal brief. (Docket #172.) Petitioner sets forth several reasons why he believes his attorney's performance was deficient. Petitioner argues that the statute of limitations should be tolled, asserting that Counsel failed and/or refused to file a timely notice of appeal and that Petitioner did not have the means by which to pursue an appeal as a result of his incarceration. Petitioner restates his claim that his filing was late because the Federal public defender sent him a Section 2255 form after it was due. Petitioner claims the waiver of the right to appeal his sentence, as set forth in the Plea Agreement and read into the record in open court, was not knowing and voluntary, but was the result of deception by Counsel.
Title 28 U.S.C. § 2255 provides in pertinent part:
28 U.S.C. § 2255.
This Court has thoroughly reviewed all information relative to Petitioner's Motion; the Response filed by the Government; and, Petitioner's Rebuttal Brief. Based upon that review, the Court finds that Petitioner is not entitled to relief under 28 U.S.C. § 2255.
The one-year statute of limitations for filing a § 2255 petition is subject to equitable tolling. A petitioner is entitled to equitable tolling only if the petitioner shows that (1) "he has been pursuing his rights diligently," and (2) that "some extraordinary circumstance stood in his way and prevented timely filing." See Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745 at *3 (6th Cir. 2011) (citing Holland v. Florida, 130 S.Ct. 2549, 2562, (2010)).
On September 12, 2011, Petitioner filed a Motion with the Court requesting counsel be appointed for purposes of an appeal. The Court granted Petitioner's Motion that same day and Carolyn Kucharski, a Federal Public Defender, was appointed. On September 16, 2011, Carolyn Kuckarski ordered a copy of the Sentencing Transcript, which was complete on October 24, 2011. Beyond that point, the record reflects no activity by the Federal Public Defender's Office. The next docket entry is Petitioner's Section 2255 Motion, filed on April 12, 2012.
Petitioner argues although he failed to file his Section 2255 Motion within one year of his Judgment becoming final, the delay is excusable. Petitioner asserts he requested the Form to file a Section 2255 Motion from Vanessa Malone of the Federal Public Defender's Office but did not receive the forms from Ms. Malone until after the statute of limitations had expired. Attached to Petitioner's Section 2255 Motion is a copy of the envelope he received from Ms. Malone. The envelope bears Ms. Malone's name and was stamped indicating that it was mailed on March 21, 2012 and received on March 23, 2012. Although there is no copy attached, Petitioner asserts that the letter Ms. Malone enclosed was dated February 6, 2012.
The Federal Public Defender was appointed for purposes of an appeal in this case, not for purposes of filing a Section 2255 Motion. Ms. Malone is not the attorney of record in this case and it is unclear under what circumstances Ms. Malone was communicating with Petitioner. However, it does appear based on the limited information presented to the Court that Petitioner was diligently pursuing his rights. The signature on the Petition indicates he completed the Section 2255 Form on March 24, 2012, one day after receiving it from Ms. Malone.
Based on the facts and circumstances set forth above, the Court finds equitable tolling to be appropriate in this case. Accordingly, the Court declines to dismiss Petitioner's Section 2255 Motion on the basis of untimeliness.
The Plea Agreement, executed by Petitioner on April 12, 2012, reads as follows:
(Plea Agreement at ¶ 21.)
Petitioner expressly waived the right to attack his conviction and sentence. Prior to accepting Petitioner's guilty plea, the Court asked Petitioner whether he had consulted with his attorney about the evidence against him; his involvement in the case; and, potential defenses. Petitioner expressly indicated that he had read the Plea Agreement; that the decision to plead guilty was made knowingly and voluntarily; and, that he understood that by pleading guilty he was making a complete admission as to the truth of the charges for which he pled guilty. The Plea Agreement was read into the record in its entirety, including Paragraph 21 by which Petitioner waived the right to attack his sentence. After the Plea Agreement was read, the Court confirmed Petitioner was listening; that he understood the terms of the Plea Agreement; and, that he had no questions about it or any other aspect of his case. The Plea Agreement was signed by Petitioner. Petitioner entered his plea knowingly, voluntarily and of his own free will.
Further, there is simply no evidence to support Petitioner's claims of ineffective assistance of counsel. In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court established the requirements for a claim ineffective assistance of counsel:
"Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. In order to show that his attorney's performance was deficient, a defendant must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 688. In order to satisfy the requirement of prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In the context of a guilty plea, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, Paragraph a of syllabus (1985).
The record in this case shows active and appropriate representation by Counsel and there is no evidence that any of the alleged actions or inactions taken by Counsel would have changed the outcome in this case. The evidence against Petitioner was overwhelming and Petitioner was advised, during his change of plea hearing, of the maximum penalties and advisory guidelines computations that he faced. At the time of sentencing, Petitioner indicated that he had reviewed his presentence report with his attorney and was satisfied with the contents of the report.
Finally, Petitioner was sentenced in accordance with the sentencing stipulations and calculations set forth in the Plea Agreement and the recommendations made by the Probation Department. There was no basis upon which to adjust Petitioner's sentence based upon an acceptance of responsibility under U.S.S.G. § 3E1.1(a) & (b), given the fact that Petitioner continued his crimes while incarcerated. "Those who continue their crimes in jail and do not voluntarily withdraw from their criminal conduct demonstrate . . . a cynical and remorseless contempt for the law. Such continued criminal conduct is incompatible with the idea of acceptance of responsibility." United States v. Reed, 951 F.2d 97, 100 (6
Petitioner has no legally cognizable claim arising under the Uniform Commercial Code.
Based on the foregoing, Petitioner is not entitled to the relief sought.
Pursuant to 28 U.S.C. § 2253, the Court must determine whether to grant a certificate of appealability as to any of the claims presented in the Petition. 28 U.S.C. § 2253 provides, in part, as follows:
In order to make "substantial showing" of the denial of a constitutional right, as required under 28 U.S.C. § 2255(c)(2), a habeas prisoner must demonstrate "that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issue presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L. Ed. 2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 77 L. Ed. 2d 1090 (1983).)
Where a district court has rejected the constitutional claims on the merits, the petitioner must demonstrate only that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. Slack, 529 U.S. at 484.
For the reasons stated above, the Court concludes that no reasonable jurist would find the assessment of Petitioners's Constitutional claims to be debatable or wrong. Accordingly, the Court declines to issue a certificate of appealability.
For the reasons set forth above, Petitioner's Motion to Vacate, Set Aside or Correct Sentence filed pursuant to 28 U.S.C. § 2255 (Docket #164 in Case No. 5:10 CR 189) is DENIED. There is no basis upon which to require a hearing on Petitioner's Section 2255 Motion. Accordingly, Petitioner's request for a hearing is DENIED.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); FED. R. APP. P. 22(b).
IT IS SO ORDERED.
