MEMORANDUM AND ORDER

WILLIAM E. SMITH, District Judge.

Defendant-Petitioner Edward Baez has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (ECF No. 41) in the above-captioned matter. For the reasons that follow, the motion is DENIED.

I. Background and Travel

On November 23, 2005, Baez was indicted by a grand jury sitting in the District of Rhode Island. This resulted from a six-month investigation by members of federal and local law enforcement agencies into illegal "crack" cocaine trafficking being conducted in and around Providence, Rhode Island.

After pleading guilty to two counts of possession with intent to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), Baez was sentenced on January 5, 2007, to 121 months imprisonment on each count, to be served concurrently with each other, and five years supervised release on each count, also to be served concurrently. An assessment of $200.00 was also imposed. He appealed the Judgment to the Court of Appeals for the First Circuit, but the First Circuit affirmed the Judgment on August 7, 2008, on the ground that Baez had waived his right to appeal.

Baez filed the instant motion to vacate on August 2, 2011.1 The Government filed its objection (ECF No. 46) on November 22, 2011, and Baez thereafter filed his response (ECF No. 51) to the Government's objection as well as exhibits in support of his motion (ECF No. 52). No hearing is necessary.2

II. Discussion

Section 2255 provides in relevant part:

28 U.S.C. § 2255(a).

A. Timeliness

Baez raises a number of alleged violations of his constitutional rights. (Baez Br. i, ECF No. 41-1.) Baez, however, must overcome certain procedural hurdles before the Court may address the merits of his claims. The Government contends, and Baez concedes, that his motion was filed more than one year after the judgment against him became final. (Gov't Obj. 7; Baez Br. 4.) Baez, however, relies on the following exception to § 2255's one-year limitation period:

28 U.S.C. § 2255(f). According to Baez, "newly discovered evidence," specifically the fact that a key member of the prosecution team, Joseph Colanduono, was involved in illegal activity before, during, and after Baez's conviction and that the illegal activity was connected to the charges against him, renders his conviction invalid. (Baez Br. i.) This "newly discovered evidence" underlies all of Baez's claims. (Id.)

Baez explains that:

(Baez Br. 3.) While Colanduono was arrested in March 2010, more than one year before the filing of Baez's motion, he did not plead guilty until December 2010. The Court assumes, for the sake of argument, that § 2255's one-year limitations period was not triggered until the latter date and that the motion is therefore timely.

B. Merits

1. Newly Discovered Evidence

The First Circuit has held that "new evidence claims . . . are cognizable grounds of relief only in post-trial motions for a new trial and not under habeas or its section 2255 surrogate." Conley v. United States, 323 F.3d 7, 13-14 (1st Cir. 2003). Thus, Baez's motion must fail to the extent it is predicated upon the existence of newly discovered evidence, without more.

2. Brady

Baez, however, also claims that the prosecution suppressed exculpatory evidence in violation of the rule announced in Brady v. Maryland, 373 U.S. 83 (1963). "The essential elements of a Brady claim are well-established: `The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.'" United States v. Aviles-Colon, 536 F.3d 1, 19 (1st Cir. 2008) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). In assessing prejudice where a defendant has pleaded guilty, courts must ask "whether there is a `reasonable probability' that a defendant would have refused to plead and would have gone to trial but for the prosecution's withholding of the evidence." United States v. Kellett, 62 F.3d 1411, at *1 (1st Cir. 1995) (table).

Here, even assuming that the Government suppressed evidence of Colanduono's criminal activity, a dubious proposition at best given Baez's concession that members of the prosecution team were unaware of the misconduct,3 Baez cannot establish prejudice. Baez's motion is solely predicated upon Colanduono's convictions, but he does not dispute the Government's contention that Colanduono never provided any sworn testimony in connection with the present case. Rather, it was Detective Robert Enright4 who testified before the grand jury and provided the affidavit in support of the search warrants. Similarly, other officers were present during searches of Baez's car and house, which resulted in the discovery and seizure of cocaine. Moreover, while Baez asserts, in conclusory fashion, that Colanduono's misconduct was ongoing during the 2005 investigation giving rise to the instant charges, the supporting documentation he provides indicates that the charges against Colanduono stem from events in 2009 and 2010. Finally, and most significantly, the evidence proffered by Baez has no direct relevance to his own guilt or innocence. For these reasons, Baez cannot establish a reasonable probability that, had evidence of Colanduono's criminal activity been available as impeachment evidence, he would not have pleaded guilty to possession of cocaine with intent to distribute.

3. Search Warrants

Baez's claim that Colanduono made statements under oath in order to obtain search warrants is clearly contradicted by the record. Enright, not Colanduono, provided the affidavit in support of the warrants.5

4. Innocence

Finally,6 Baez contends that "it is . . . highly questionable, given [Colanduono's] involvement in the very same crime which Petitioner has been accused of, that any evidence that was reportedly found on the Petitioner or in his home could not have been placed there by the police officer himself in order to affect [sic] an arrest." (Baez Br. 9.) It is worth noting that Baez stops short of asserting his actual innocence, instead merely suggesting that his guilt is "highly questionable."

A § 2255 petitioner may overcome a procedural default if he shows "that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup v. Delo, 513 U.S. 298, 327 (1995). Here, because the Court has considered Baez's claims on the merits, his actual innocence argument is moot to the extent it is designed to overcome a procedural default. To the extent Baez asserts a "freestanding innocence claim" as a basis for post-conviction relief,7 he has failed to meet his "extraordinarily high" burden. House v. Bell, 547 U.S. 518, 555 (2006) (internal quotation marks omitted). Indeed, the evidence at issue here is not directly probative of Baez's guilt or innocence. Rather, it is merely evidence that could have been used to impeach Colanduono had he testified against Baez at trial.

III. Conclusion

For the foregoing reasons, the instant motion to vacate is hereby DENIED and DISMISSED.

RULING ON CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings in the United States District Courts, this Court hereby finds that this case is not appropriate for the issuance of a certificate of appealability (COA) because Baez has failed to make a substantial showing of the denial of a constitutional right as to any claim, as required by 28 U.S.C. § 2253(c)(2).

Baez is advised that any motion to reconsider this ruling will not extend the time to file a notice of appeal in this matter. See Rule 11(a), Rules Governing Section 2255 Proceedings.

IT IS SO ORDERED.