Scott v. U.S.A
| Decision Date | 13 January 2011 |
| Docket Number | 07-CV-4039 (CBA) |
| Parties | ROBERT SCOTT, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
NOT FOR PUBLICATION
Robert Scott, pro se, has filed a petition for habeas corpus, 28 U.S.C. § 2255, which asks the Court to set aside his convictions of possession with intent to distribute cocaine base, 18 U.S.C. § 841, and carrying a firearm during and in relation to, or possessing a firearm in furtherance of, a drug trafficking crime, 18 U.S.C. § 924(c). In support of his petition, Scott— who pleaded guilty to the charges of which he was convicted—alleges that his attorney was ineffective for (1) failing to move to dismiss the indictment as insufficiently specific; (2) failing to investigate and present mitigation evidence at sentencing; and (3) failing to file a direct appeal. The government argues that Scott's petition is time barred because he filed it more than one year from the date on which his conviction became final and that, even if the petition is timely, it lacks merit.
For the reasons that follow, the Court denies Scott's petition.
Scott was first indicted in April 2005 for possession with intent to distribute fifty grams or more of cocaine base. At the time, Scott was represented by attorney Paul Rinaldo. Attorney Richard Lind replaced Rinaldo in July 2005. In August 2005, the grand jury returned a superseding indictment that charged Scott with one count of possession with intent to distributecocaine base and one count of carrying a firearm during and in relation to, or possessing a firearm in furtherance of, a drug trafficking crime. With respect to Count One, the indictment alleged that "[i]n or about between 2002 and 2005,... within the Eastern District of New York, the defendant" knowingly possessed with intent to distribute at least fifty grams of cocaine base. With respect to Count Two, the indictment alleged that "[i]n or about and between 2002 and 2005,... within the Eastern District of New York, the defendant" carried a firearm during and in relation to, and possessed a firearm in furtherance of, a drug trafficking crime. In August 2005, Scott pleaded guilty to both counts without a plea agreement.
In July 2006, attorney Anthony Ricco, who relieved Lind after Scott pleaded guilty, filed a sentencing memorandum on behalf of his client. In that memorandum, Ricco urged the Court to sentence Scott to a term of imprisonment of fifteen years, which was the statutory mandatory minimum sentence. Ricco argued that that below-guidelines sentence was appropriate in light of several considerations, including the fact that Scott was "completely abandoned by his father"; was abandoned by his mother, who was addicted to drugs; was beaten with an extension cord by his mother when she sometimes visited Scott at his grandmother's house, where he lived after his mother left; was placed in foster care at the age of twelve; was physically and emotionally abused in the foster care system; and began using drugs "heavily" at about the time he entered the foster care system. The government opposed Ricco's filing and urged the Court to sentence Scott within the advisory guidelines range of 168 to 210 months of imprisonment on Count One and 60 consecutive months of imprisonment on Count Two.
On August 15, 2006, the Court sentenced Scott to serve a term of imprisonment of fifteen years, which was the statutory mandatory minimum sentence. The Court informed Scott, "Mr. Scott, if you think the Court has made an error in imposing your sentence, any notice of appealwould have to be filed within ten days of today." The Court asked Scott if he understood that fact and Scott said that he did. The Court then explained: "Essentially the Court has given you the sentence that is actually the mandatory minimum as required by law but if you think I made a mistake, you have ten days to file an appeal." The Court entered judgment on the same day that it imposed sentence. Scott did not appeal.
On September 18, 2007, Scott placed a section 2255 habeas petition in the prison mail. That petition, which is now before the Court, raised three claims. First, it alleged that Scott received ineffective assistance of trial counsel because his attorney did not Second, it alleged that Scott's attorney was ineffective for failing "to investigate mitigating circumstances of [Scott's] psychological history, poor education skills, and attempted suicide which would [have] called for a downward departure at [Scott's] sentence for a diminished capacity." Third, liberally construed, the petition also alleged that Scott's attorney as ineffective for not filing a direct appeal. The petition does not explain what claims Scott's attorney might have raised on appeal.
On August 14, 2008, the government filed its opposition to Scott's petition. The government argued first that Scott's petition was untimely because he did not file it within one year of the date on which his conviction became final. According to the government, Scott's conviction became final on August 25, 2006, ten days after the Court entered judgment. The government also argued that, even if Scott's petition was timely filed, it lacks merit. With respect to the allegation that Scott's attorney should have investigated and presented mitigation evidence at sentencing, the government said that Scott's attorney "made an extensivepresentation of sentencing mitigation factors, " and, even if the attorney should have done more, Scott cannot prove that he was prejudiced by his attorney's inadequate performance because Scott received the lowest sentence permitted by law. With respect to the allegation about the indictment, the government argued that the indictment was plainly specific enough; that Scott was fully aware of the charges against him because he was provided with "extensive discovery, including his own post-arrest statements admitting to the charged crimes"; and that Scott acknowledged that he understood the charges when he pleaded guilty. Finally, with respect to the allegation about the direct appeal, the government urged that "Scott has identified no basis on which he would have a meritorious or even colorable appellate claim." Scott did not file a reply to the government's opposition even though, in December 2008, the Court provided him notice of his right to file a reply.
The Court denies Scott's petition because it is untimely, and, even if it is not, it lacks merit.
Relevant here, a federal habeas petition under section 2255 must be filed within one year from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255. The Second Circuit has held "that, for purposes of § 2255 motions, an unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires." Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005). When Scott was sentenced in 2006, the Federal Rules of Appellate Procedure provided, "In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after... the entry of... the judgment or the orderbeing appealed." Fed. R. App. P. 4(b)(1)(A)(i). When Scott was sentenced, intermediate Saturdays and Sundays were excluded when counting those ten days. Fed. R. App. P. 26(a)(1).
In view of these principles, Scott's petition is clearly untimely. The Court entered Scott's judgment of conviction on August 15, 2006. That judgment of conviction became final ten days (excluding intermediate Saturdays and Sundays) from that date, which means it became final on August 29, 2006. Scott had one year from that date to file his section 2255 petition, but he failed to file until September 18, 2007, almost three weeks late. Except for the statement in his petition that Scott has "only a 5th grad[e] educ[ation] and did not understand... how to file a § 2255" petition, Scott has made no effort to explain his untimely filing. Consequently, he is not entitled to equitable tolling. See Jenkins v. Greene,--F.3d--, No. 09-3623, 2010 WL 5186019, at *5 (2d Cir. Dec. 23, 2010) (); Smith v. McGinnis, 208 F.3d 13, 18 (2d Cir. 2000) () (citing Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) ()). Scott's petition is thus barred by section 2255's one-year statute of limitations.
Even if the applicable statute of limitations does not bar Scott's petition, the Court denies Scott's petition as without merit.
Scott cannot challenge his attorney's failure to move to dismiss the indictment because Scott pleaded guilty to the charges contained in that indictment.
"The settled rule is that a defendant who knowingly and voluntarily enters a guilty plea waives all non-jurisdictional defects in the prior proceedings." Lebowitz v. United States, 877 F.2d 207, 209 (2d Cir. 1989). The receipt of ineffective assistance of counsel prior to a guilty plea is a non-jurisdictional defect that falls within this rule. United States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) (); United States v. Torres, 129 F.3d...
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