Baldayaque v. U.S.

• Decision Date: 30 July 2003
• Docket Number: No. 02-2611.,02-2611.
• Citation: 338 F.3d 145
• Parties: Heriberto BALDAYAQUE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

338 F.3d 145

Heriberto BALDAYAQUE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 02-2611.

United States Court of Appeals, Second Circuit.

Argued May 6, 2003.

Decided July 30, 2003.

COPYRIGHT MATERIAL OMITTED

GATES GARRITY-ROKOUS, New Haven, CT (Stephen J. Lable, Wiggin & Dana, New Haven, CT, of counsel), for Appellant.

JEFFREY A. MEYER, Assistant United States Attorney, District of CT (Kevin J. O'Connor, United States Attorney for the District of Connecticut, Jonathan Biran, Assistant United States Attorney, District of Connecticut, New Haven, CT, of counsel), for Appellee.

Before: FEINBERG, MESKILL and JACOBS, Circuit Judges.

Judge JACOBS concurs in a separate opinion.

MESKILL, Circuit Judge.

Appeal from a judgment of the United States District Court for the District of Connecticut, Arterton, J., denying the petitioner-appellant's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. The district court issued a certificate of appealability on the issue whether our holding in Smaldone v. Senkowski, 273 F.3d 133 (2d Cir.2001), always precludes the application of equitable tolling in a case where a habeas petition is untimely because of the extraordinary actions of the petitioner's attorney. We hold that it does not.

Vacated and remanded.

BACKGROUND

On November 8, 1995, petitioner-appellant Heriberto Baldayaque (Baldayaque) pled guilty in United States District Court to the charge of conspiracy to possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 846. At the time he committed this offense, Baldayaque, a citizen of the Dominican Republic, was in the United States illegally. On February 7, 1996, Baldayaque was sentenced principally to a term of 168 months imprisonment, a sentence which represented the very bottom of the applicable Sentencing Guidelines range.¹ At sentencing, the court stated:

[T]his is a very difficult sentence to impose. It is harsh, but the facts require it. If the Government should at some time choose to deport Mr. Baldayaque at a point prior to the expiration of his sentence, the court would have no objection and would not deem that to be an inappropriate action to take with regard to Mr. Baldayaque.

Baldayaque appealed to the Second Circuit, and on February 14, 1997, his conviction and sentence were affirmed. Baldayaque did not seek review in the Supreme Court.

The following facts were established at an evidentiary hearing held by the district court on the habeas petition. The witnesses' accounts differ as to the precise chronology of the events described. However, the variations among their accounts as to the timeline do not affect the outcome of this appeal.

Within a matter of days after we affirmed his conviction and sentence, Baldayaque asked his wife, Christina Rivera (Rivera), to hire an attorney to file a petition for a writ of habeas corpus on his behalf. Baldayaque described the motion he wanted filed as a "2255." Rivera and Baldayaque each spoke only Spanish at that time, so Rivera sought assistance in finding an attorney from Reverend Brixeida Marquez (Marquez), who spoke both English and Spanish. Marquez and Rivera chose Attorney Burton Weinstein (Weinstein) and together went to Weinstein's office to retain him on Baldayaque's behalf in February 1997.

Marquez and Rivera testified that on this first visit to Weinstein they asked Weinstein to file a "2255" even though neither woman knew what a 2255 was. Marquez testified that Weinstein did not seem to know what a 2255 was. Weinstein asked the women to get Baldayaque's sentencing transcript and other papers for him, and stated that he would look into the case. Weinstein testified that he did not recall being asked to file a section 2255 petition. Weinstein also testified that his notes of the meeting indicated that the women requested he file a motion for commutation of sentence based on Baldayaque's willingness to consent to immediate deportation.

Rivera and Marquez delivered the sentencing documents to Weinstein's office, apparently sometime in early March 1997. At some point after that, Weinstein told Rivera and Marquez that his normal fee was $10,000, but that he would accept a payment of $5,000 to take the case because Marquez was a reverend. Rivera and Marquez raised the money from friends and neighbors and by selling homemade food and delivered the money to Weinstein.

On March 25, 1997, Rivera and Marquez met with Weinstein again.² Prior to this meeting, Weinstein had reviewed Baldayaque's sentencing transcript, but he had not done any legal research. At the meeting, Weinstein told Rivera and Marquez it was too late to file a 2255. In fact, at the time of this meeting, Baldayaque still had nearly fourteen months remaining within which he could file a timely petition. Weinstein also told them not to worry, because he had "good news" for them: the Dominican Republic had said it would accept Baldayaque if he were deported, and Weinstein thought they could get Baldayaque deported early because he was very sick.³

Weinstein met with Marquez and Rivera on two or three occasions. He never spoke directly with Baldayaque. After they paid the $5,000, Rivera and Marquez did not see Weinstein again; however, Marquez called Weinstein about once a month. Weinstein assured her that he was just "waiting for a court date" and that he was taking care of everything.

On November 12, 1997, Weinstein filed a motion for modification of Baldayaque's sentence to permit him to be deported immediately. The motion cited no authority.

On January 18, 1998, Baldayaque sent a letter to the clerk of court inquiring whether Weinstein was "still representing me." The clerk responded to Baldayaque on February 11, 1998, informing him that Weinstein was still his attorney of record, and that his motion was still pending. A copy of the clerk's letter was sent to Weinstein and to the Assistant United States Attorney handling the case. Weinstein did not attempt to contact Baldayaque after receiving a copy of the letter.

Weinstein's motion was denied by the district court on June 9, 1998. The district court held that it lacked jurisdiction to order the relief requested, i.e., immediate deportation, and that the motion was "untimely even if cognizable under Fed. R.Crim.P. 35(c)."⁴ On June 16, 1998, Weinstein sent a letter to Baldayaque informing him that the motion had been denied, and that he saw "no basis for an appeal." However, this letter was returned to Weinstein as undeliverable, and Baldayaque never received it. Weinstein spoke to Marquez on the phone, informing her that the motion had been denied and telling her: "there is nothing we can do now." By then, the one-year limitations period for filing a section 2255 petition had expired. Weinstein took no further action on behalf of Baldayaque.

On February 11, 2000, eighteen months after the motion filed by Weinstein had been denied, Baldayaque filed a pro se motion pursuant to Rule 35, requesting modification of his sentence. The district court denied the motion on August 23, 2000, and in its order informed Baldayaque of the requirements for filing a section 2255 petition. Believing that this meant he still had a right to file a habeas petition, Baldayaque filed a section 2255 petition pro se in November 2000. The district court denied the petition as untimely, and issued a certificate of appealability on the question of equitable tolling. See Baldayaque v. United States, 3:99CV02272(JBA), 2002 WL 31094962, at *6 (D.Conn. Sept. 6, 2002). This appeal followed.

DISCUSSION

The district court had federal question jurisdiction because Baldayaque filed his petition pursuant to 28 U.S.C. § 2255. Appellate jurisdiction is appropriate because the district court entered a final order denying the petition and issued a certificate of appealability on the issue of equitable tolling. The appeal was timely filed.

I. The District Court's Ruling

"We review a district court's denial of a petition for writ of habeas corpus de novo and its factual findings for clear error." Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir.2002) (internal citations omitted).

The district court dismissed Baldayaque's petition because it was untimely under the one-year limitations period imposed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA). Baldayaque's time for seeking direct review of his conviction and sentence in the Supreme Court expired on May 14, 1997. Accordingly, he had until May 14, 1998, to file a petition pursuant to 28 U.S.C. § 2255. See Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 1074, 155 L.Ed.2d 88 (2003) ("[A] judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction."); Green v. United States, 260 F.3d 78, 80 (2d Cir.2001) ("Congress imposed a `1-year period of limitation' on section 2255 motions, which runs, in this case, from `the date on which the judgment of conviction becomes final.'"). Baldayaque filed his pro se petition on November 28, 2000, more than 30 months late.

However, the court believed that the facts of Baldayaque's case suggested that the limitations period might be equitably tolled, rendering the petition timely. See Green, 260 F.3d at 82 (holding that equitable tolling is available for petitions filed pursuant to 28 U.S.C. § 2255). The court appointed counsel for Baldayaque to address the question of equitable tolling, and conducted an evidentiary hearing at which Rivera, Marquez, Baldayaque and Weinstein testified.

Equitable relief such as tolling may be "awarded in the court's discretion only upon consideration of all the facts and circumstances." Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 965 (2d Cir.1981).

To equitably toll the one-year limitations period, a petitioner must show that extraordinary circumstances prevented him...