U.S. v. Baldayaque, Docket No. 3:95cr81(JBA) (D. Conn. 9/6/2002), Docket No. 3:95cr81(JBA).
| Decision Date | 06 September 2002 |
| Docket Number | Docket No. 3:95cr81(JBA).,Docket No. 3:99cv2272(JBA). |
| Parties | United States of America, v. Heriberto Baldayaque, Defendant. |
| Court | U.S. District Court — District of Connecticut |
Heriberto Baldayaque, a prisoner in federal custody pursuant to a judgment of conviction of this Court, has filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Baldayaque filed the motion pro se, arguing that his guilty plea and conviction should be vacated because, inter alia, he received ineffective assistance of counsel and his plea was not knowing and voluntary.
After review of the motion and the Government's response, the Court appointed counsel, held an evidentiary hearing, and received supplemental briefing. For the reasons that follow, the Court concludes that the motion is time-barred as a matter of current Second Circuit law, and therefore must be denied.
On November 8, 1995, Baldayaque entered a plea of guilty to a charge of conspiracy to possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 846. Following several days of sentencing hearings, the Court sentenced Baldayaque on February 7, 1996 to 168 months in prison. On February 14, 1997, the U.S. Court of Appeals for the Second Circuit summarily affirmed the conviction and sentence. Baldayaque did not seek review by petition for certiorari, and the time to do so expired on May 14, 1997.
In February 1997 Baldayaque directed his wife, Christina Rivera, to retain counsel to file a motion under 28 U.S.C. § 2255. While no specific grounds for relief were mentioned to her, he conveyed to her his understanding that there was a specific time limit for filing the motion. With the help of Rev. Brixeida Marquez, a prison chaplain, Rivera located new counsel. Because Rivera, like Baldayaque, speaks only Spanish, Marquez accompanied her to the new attorney's office, and with Marquez translating, Rivera requested that the new attorney file a § 2255 motion, which may also have been referred to by Rivera and Marquez as a motion for a reduction of sentence.
The new attorney instructed Rivera and Marquez to obtain copies of the sentencing transcript. At a subsequent appointment, after the sentencing transcripts had been delivered, the new attorney told them that it was too late to file a motion under § 2255. They were told, however, that he had "a better motion" available that would allow for Baldayaque's immediate deportation to the Dominican Republic, his country of citizenship.
The new attorney indicated that his fee for preparing such a motion was $10,000, but because Marquez was a woman of the cloth and he wanted to help, he would accept a reduced fee of $5,000. After the meeting, Rivera told Marquez that neither she nor Baldayaque's family had funds for such a fee. Marquez and Rivera prayed, and after soliciting among friends and family, they raised $3,000. To raise the remaining $2,000, Marquez asked various churches in the community for support, and she and Rivera held a bake sale. They finally collected, and Marquez delivered, $5,000 to the new attorney on March 25, 1997.
On November 13, 1997, eight months after receiving his fee, the new attorney filed a three-page motion entitled "Defendant's Petition for Modification of Sentence to Permit Deportation." [Doc. #485]. The motion quoted a portion of the sentencing transcript in which the Court noted that Baldayaque's sentence was a harsh one, and "[i]f 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." The motion represented that Baldayaque had been diagnosed with tuberculosis, and referenced an agreement between the Attorney General of Connecticut and the Immigration and Naturalization Service to permit deportations of persons in state custody prior to the completion of their sentences.
The Court denied this motion on June 9, 1998, noting that "Congress. . . has spoken on this precise issue" in 8 U.S.C. § 1231(a)(4)(B)(i), which grants only the Attorney General such discretion — not the sentencing court. The Court also cited Thye v. United States, 109 F.3d 127 (2d Cir. 1997), which held that the statute "provide[s] the Attorney General with the sole and unfettered discretion to deport criminal aliens prior to the completion of their sentence of imprisonment." Id. at 128 (citations and quotations omitted).3
When the new attorney told Marquez that the motion had been denied, he stated that there was nothing else that could be done to secure Baldayaque's release. Marquez told Rivera, who was "devastated," and Rivera told Baldayaque. No further filings in the case were made for the twenty months following the Court's ruling denying the new attorney's motion.
On February 11, 2000, Baldayaque filed a pro se motion to correct his sentence pursuant to Fed.R.Crim.P. 35, alleging many of the grounds subsequently raised in the instant habeas petition. The Court denied the motion on August 23, 2000, and forwarded to Baldayaque the forms to file a § 2255 motion.4 Baldayaque filed the instant motion on November 28, 2000.
Section 105 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), contains a one year statute of limitations for § 2255 claims filed after April 24, 1996. Here, the parties agree that Baldayaque's conviction became final on May 14, 1997, ninety days after the Second Circuit summarily affirmed his conviction, during which time Baldayaque could have petitioned the U.S. Supreme Court for a writ of certiorari.5 Absent tolling, any § 2255 motion filed by Baldayaque after May 14, 1998 would be time-barred under AEDPA.
This limitations period may be equitably tolled if extraordinary circumstances prevented a defendant from filing his petition on time and the defendant acted with reasonable diligence throughout the period he seeks to toll. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (); Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001) (applying Smith to § 2255 petitions). Baldayaque argues that equitable tolling applies because: (1) immediately following loss of his appeal, he directed his family to retain an attorney specifically to file a § 2255 motion; (2) after extraordinary effort, the required retainer was paid to an attorney with express instructions to file a § 2255 motion; (3) the retained attorney incorrectly advised Rivera and Marquez that a § 2255 petition was time-barred; (4) the attorney instead filed his "better motion," which was clearly meritless and was denied by the Court; and (5) Marquez and Rivera were told that it was too late to file any other motions, and that nothing further could be done to secure Baldayaque's release or reduce his sentence.
The Government argues that nothing "prevented" Baldayaque from filing a § 2255 motion prior to the expiration of the limitations period: Baldayaque knew that no § 2255 motion had been filed on his behalf, and he made no effort to file such a motion pro se. The Government further argues that Second Circuit case law excludes attorney negligence or error as a basis for equitable tolling. The Government additionally argues absence of petitioner's diligence after the "better motion" was denied by the Court in June of 1998, as no motions were then pending in his case, and Baldayaque filed nothing further for approximately twenty months.
It is clear to the Court that Baldayaque and his family went to extraordinary ends to specifically file what they knew to be a "2255" motion, and that they took such action well within the limitations period. While they may not have been aware of specific grounds for relief, they were well aware of both the lengthy sentence Baldayaque received and the fact that any challenges to that sentence had to be made within a specified time period, and they retained counsel to investigate and develop a § 2255 motion appropriate to his circumstances, with the objective of sentence reduction.6
The Court further concludes that as a factual matter Baldayaque was effectively "prevented" from filing a § 2255 motion by the new attorney's erroneous advice in early 1997 that the time limit for filing such a motion had passed. "Prevent" means "to deprive of power or hope of acting, operating, or succeeding in a purpose"; "to keep from happening or existing esp[ecially] by precautionary measures"; and "make impossible through advance provisions." Webster's Third New International Dictionary (1993) at 1798. Baldayaque has a third-grade education, speaks only Spanish, and cannot read or write. When the new attorney, an experienced lawyer, accepted the $5000 retainer and represented (obviously with no research whatsoever) that the filing period had expired when in fact the time period had only just begun to run, Baldayaque was effectively deprived of the power of acting. He was "prevented" from filing a § 2255 motion just as surely as he would have been had, for example, a prison guard confiscated legal papers that he was preparing to mail to the court. Cf. Valverde v. Stinson, 224 F.3d 129 (2d Cir. 2000) ().
The logic of the Government's argument that Baldayaque was nevertheless either not "prevented" from filing a pro se motion or was not reasonably diligent because he failed to do so produces absurd results: prisoners would be required to disregard their attorneys' advice and file their pro se motions to hedge the possibility that the...
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