Person v. U.S.

• Decision Date: 12 November 1998
• Docket Number: C.A. No. 97-258ML.
• Citation: 27 F.Supp.2d 317
• Parties: Earl PERSON v. UNITED STATES of America.
• Court: U.S. District Court — District of Rhode Island

27 F.Supp.2d 317

Earl PERSON v. UNITED STATES of America.

C.A. No. 97-258ML.

United States District Court, D. Rhode Island.

November 12, 1998.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Earl Person, pro se.

Kenneth P. Madden, Assistant United States Attorney, Providence, RI, for Defendant.

MEMORANDUM AND ORDER

LISI, District Judge.

This matter is before the court on the pro se petitioner's motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. This matter was initially referred to United States Magistrate Judge Jacob Hagopian for his preliminary review, findings, and recommended disposition. See 28 U.S.C. § 636(b)(1); see also D.R.I. Loc. R. 32(c). Magistrate Judge Hagopian recommended the dismissal of the motion as untimely, to which Person filed an objection. Because the court declines to adopt the Magistrate Judge's Report and Recommendation, the merits of the petitioner's claim will be addressed.

I. BACKGROUND

On May 3, 1991, a confidential informant introduced an undercover Bureau of Alcohol, Tobacco & Firearms Special Agent, Matthew Horace, to the petitioner, Earl Person (Person). At that meeting, and through several subsequent telephone conversations that took place between May 8 and May 28, Agent Horace and Person negotiated a cocaine sale. On May 29, 1991, Person sold 24.8 grams of 83 percent pure cocaine to Agent Horace for $850.00.

Between May 31 and June 19, Agent Horace had several telephone conversations with Brenda Person (Brenda), the petitioner's wife, concerning the sale of cocaine. Even though Person was involved in one of those conversations during which the sale of cocaine was discussed,¹ Brenda told Agent Horace that she would be handling future transactions with him. On June 19, 1991, Agent Horace went to the Persons' home, where Brenda sold him 26.6 grams of 80 percent pure cocaine for $850.00.

The Persons were arrested on November 19, 1991, and indicted for drug trafficking. Both defendants were charged with conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 (Count I). Person was charged with distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts II & III). Brenda was charged with distribution of cocaine in Count III. Brenda pleaded guilty to Counts I and III, while Person proceeded to trial.

Person was represented at trial by a court-appointed attorney, Thomas Grasso. At the start of his trial, Person requested a new attorney. He alleged a conflict between himself and Grasso because Grasso did not file any pretrial motions and because he did not investigate any defense to present at trial. He also alleged that Grasso had decided not to present an adequate defense. As evidence of this, in the instant motion, Person points to an affidavit from Brenda dated November 18, 1992, and a letter from Grasso dated March 27, 1992. In his letter, Grasso urged Person to plead guilty in light of the overwhelming evidence against him. In Brenda's affidavit, she alleges that Grasso stated that he no longer wished to represent Person and that Person should hire new counsel. She further alleges that Grasso said that if he did not want to defend Person, he was "not going to do a good job." The court denied Person's request, holding that Grasso was a competent attorney and that the conflict between Grasso and Person should not affect Grasso's performance in the case.

On April 3, 1992, a jury convicted the petitioner on all three counts. Person retained private counsel, James A. Ruggiero, for sentencing and on appeal. On August 7, 1992, Person was sentenced to 262 months imprisonment.

On appeal, Person challenged the trial court's denial of his day-of-trial request to change attorneys and the court's failure to depart downward from the career offender sentencing guideline range. The First Circuit denied Person's appeal in an unpublished decision. See United States v. Person, No. 92-1982 (1st Cir. June 8, 1993) (per curiam). The petitioner did not seek certiorari from the United States Supreme Court. While Person's appeal was still pending in the First Circuit, he also filed a "Motion to Reduce Sentence," which was denied by this court on January 13, 1993.

Person filed the instant motion as a pro se petitioner pursuant to 28 U.S.C. § 2255 on April 23, 1997, more than three years after the denial of his appeal. Person alleges that his institutional transfers contributed to the delayed filing of this matter. In his motion and supporting memorandum, Person demands a hearing on the following allegations: (1) that counsel rendered ineffective assistance at trial; (2) that counsel rendered ineffective assistance at sentencing; and (3) that his sentence should be reduced as a result of an amendment to the United States Sentencing Guidelines.

Person's § 2255 motion was referred to United States Magistrate Judge Hagopian, who recommended dismissal of the motion as untimely. See Person v. United States, 1998 WL 226235 (D.R.I. Apr.21, 1998). Person timely objected to the report and recommendation. Pursuant to Fed.R.Civ.P. 72(b), this court has conducted a de novo review of the pleadings. For the reasons stated below, the court declines to adopt the recommendation for dismissal based on petitioner's tardiness in filing his petition. Instead, the court considers petitioner's motion on the merits and grants the government's motion to dismiss for the reasons stated below.

II. DISCUSSION

A. The Timeliness Issue

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA), which introduced, for the first time,² a statute of limitations for the filing of petitions for writs of habeas corpus and motions to vacate federal sentences. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir.1998). Under the AEDPA, a prisoner who wishes to challenge his sentence pursuant to 28 U.S.C. §§ 2254 or 2255, must do so within a year from the date of his conviction.³ Before reaching the merits of the instant case, this court must decide whether petitioner, whose conviction became final prior to AEDPA's effective date, should be allowed a grace period after the effective date within which to file his motion pursuant to 28 U.S.C. § 2255. For the following reasons, this court concludes that prisoners whose convictions became final prior to the effective date of AEDPA should be given a one-year grace period within which to file a motion pursuant to 28 U.S.C. § 2255.

The AEDPA is silent as to whether a grace period should be granted to those prisoners whose convictions became final prior to its effective date. See 28 U.S.C. § 2255. Although the First Circuit has not yet ruled on this issue, every circuit court that has considered it has granted a one-year grace period within which to bring habeas claims. See, e.g., Ross v. Artuz, 150 F.3d 97, 100-01 (2d Cir.1998); Burns v. Morton, 134 F.3d 109, 111 (3d Cir.1998); Brown v. Angelone, 150 F.3d 370, 375 (4th Cir.1998); United States v. Flores, 135 F.3d 1000, 1006 (5th Cir.1998); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en banc) (rev'd on other grounds) 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Calderon v. United States Dist. Court for the Central Dist. of California, 128 F.3d 1283, 1287 (9th Cir.1997) cert. denied, ___ U.S. ___, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998); United States v. Simmonds, 111 F.3d 737, 746 (10th Cir.1997). A statute of limitations must be applied in such a manner that it provides a party a full opportunity to try his or her rights in court. See Artuz, 150 F.3d at 100; Flores, 135 F.3d at 1004. In applying a new statute of limitations, a court must ensure that a party has notice of the new limitation and a reasonable time within which to commence suits on already existing causes of action, especially when the underlying claims allege constitutional defects or violations of federal law as do § 2255 motions. See Artuz, 150 F.3d at 100; Simmonds, 111 F.3d at 745. The majority of courts have concluded that the application of a new limitation period without a grace period to prisoners whose convictions became final prior to AEDPA's effective date would be impermissibly retroactive in that it would wholly eliminate claims for remedial actions that would have been considered timely under the old law. See, e.g., Brown v. Angelone, 150 F.3d 370, 372 (4th Cir.1998); Flores, 135 F.3d at 1004; O'Connor, 133 F.3d at 550; Simmonds, 111 F.3d at 745.

In the instant matter, Person argues that his petition was filed within a reasonable time and should not be dismissed as untimely. Person was transferred three separate times during his term of federal imprisonment. He alleges that these transfers prevented him from presenting his claims in a more expedient manner.

In accord with the other circuits that have decided this issue, this court concludes that prisoners whose convictions became final prior to the effective date of the AEDPA had until April 23, 1997 to file a motion pursuant to § 2255. A bright-line one-year grace period ensures that prisoners are given notice of the new limitations period and a reasonable time in which to file a petition. See Artuz, 150 F.3d at 102-03. Since Person filed his motion on April 23, 1997, his motion is deemed to be timely. This court will now address the merits of his claims.

B. 28 U.S.C. § 2255

28 U.S.C. § 2255 provides a remedy for prisoners in custody pursuant to the judgment of a federal court. 28 U.S.C. § 2255 provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C....