Rabbani v. United States

156 F.Supp.3d 396

Mansoor Rabbani, Petitioner,

v.United States of America, Respondent.

1:12–CV–390 EAW

1:08–CR–118 EAW

United States District Court, W.D. New York.

Signed January 11, 2016

Paul J. Campana, U.S. Attorney's Office, Buffalo, NY, for Respondent.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

I. BACKGROUND

Petitioner Mansoor Rabbani (“Petitioner”), was convicted after trial by jury of four offenses, including encouraging or inducing an alien to enter the United States for financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (a)(1)(B)(i) ; bringing or attempting to bring an alien into the United States for the purpose of financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) ; making false, fictitious and fraudulent statements or representations or aiding and abetting another in doing so, in violation of 18 U.S.C. § 1001(a)(2) and 2; and using a passport issued to another person or aiding and abetting another person in doing so, in violation of 18 U.S.C. § 1544 and 2. (Dkt. 20; Dkt 60; Dkt. 91 at 3).¹ Petitioner was sentenced to 36 months imprisonment. (Dkt. 73 at 2; Dkt. 91 at 3). On April 26, 2012, Petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing that his conviction should be vacated because he received ineffective assistance of counsel. (Dkt.91). Because Petitioner's § 2255 motion is untimely, it is dismissed.

II. PROCEDURAL HISTORY

Petitioner was charged in a four-count indictment on May 8, 2008. (Dkt.1). A superseding indictment was filed on July 9, 2008, which added one count. (Dkt.20). After a five-day jury trial, Petitioner was convicted on counts 1, 3, 4, and 5. (Dkt. 60; Dkt. 91 at 3). On December 30, 2008, Petitioner filed a motion to set aside the judgment, pursuant to Fed.R.Crim.P. 29. (Dkt.62). On May 7, 2009, the Court denied Petitioner's motion. (Dkt.70). Petitioner was sentenced on May 26, 2009, and the Court imposed a sentence of 36 months. Petitioner filed a notice of appeal to the Second Circuit Court of Appeals on June 18, 2009 (Dkt.75), and the Second Circuit affirmed the judgment of the district court on July 19, 2010 (Dkt.89). Petitioner was represented by Kimberly A. Schechter of the United States Federal Public Defender's Office at all stages of the proceedings. (Dkt.11).

Petitioner contends that following the Second Circuit's affirmance of his conviction and sentence, Ms. Schechter informed him that she would no longer be representing him. (Dkt. 99 at ¶ 4). Ms. Schechter also prepared a completed application for certiorari to the United States Supreme Court, and instructed Petitioner that he should proceed pro se. (Id. ). Petitioner contends that he signed the forms and gave them to his wife, Ambika Rabbani, to mail to the United States Supreme Court on September 21, 2010, approximately one week after he had self-surrendered at Moshannon Valley Correctional Facility in Philipsburg, Pennsylvania. (Id. at ¶ 5).

Petitioner contends that he wrote to the Supreme Court in December 2010, to inquire about the status of his case, but he received no response. (Id. at 6). Petitioner contends that he again wrote to the Supreme Court in early March 2011, but received no response. (Id. at ¶ 7). Petitioner confirmed with his wife that she sent the papers to the Supreme Court. (Id. at ¶ 8). Mrs. Rabbani thereafter called the Supreme Court to inquire as to the status of Petitioner's petition for certiorari. (Id. at ¶ 9). The clerk informed Mrs. Rabbani that the petition was denied on May 6, 2011. (Id. ). Mrs. Rabbani also requested a copy of the Court's decision denying certiorari, but was informed that the Order was not yet entered on the record, and that Petitioner had one year to file any motion starting from the date of the denial on May 6, 2011. (Id. ). Petitioner has not provided the Court with a copy of the Supreme Court's Order denying certiorari.

On April 26, 2012, Petitioner filed a motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, arguing that he had ineffective assistance of counsel at trial. (Dkt.91). Specifically, Petitioner contends that he received inadequate assistance of counsel because: (1) his attorney failed to travel to Canada to interview Petitioner's brother, or to obtain a camera chip containing evidence that exonerated him; (2) his attorney prevented Petitioner from taking the stand to testify in his own defense; (3) his attorney failed to call Petitioner's wife as a witness to testify in Petitioner's defense; (4) his attorney failed to call any witness to testify in Petitioner's defense, and counsel should have stopped the trial to call or subpoena witnesses; and (5) his attorney failed to explain the difference between going to trial and taking a six-month plea bargain, and that by going to trial, Petitioner would be exposed to possible deportation. (Id. at 4–20).

The Government filed a motion to dismiss the petition as untimely on May 15, 2012, arguing that there was no indication that Petitioner had filed a petition for certiorari at the United States Supreme Court. (Dkt.95). The Court directed that Petitioner file a response to the Government's motion to dismiss by August 3, 2012, and that the Government reply by August 15, 2012. (Dkt.97). Petitioner filed his response on August 17, 2012 (Dkt. 99 at 9) and the Government replied on August 27, 2012 (Dkt.98). Petitioner filed a motion for an extension of time to file a response to the Government's motion to dismiss on September 4, 2012. (Dkt. 100 at 6).² The case was transferred to the undersigned on January 30, 2015. (Dkt.101).

III. DISCUSSION

A. Legal Standard

A prisoner in federal custody may challenge the validity of his sentence by filing a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. See 28 U.S.C. § 2255(a). “Section 2255 provides relief in cases where the sentence: (1) was imposed in violation of the U.S. Constitution or the laws of the United States; or (2) was entered by a court without jurisdiction to impose the sentence; or (3) exceeded the maximum detention authorized by law; or (4) is otherwise subject to collateral attack.” Adams v. United States, 372 F.3d 132, 134 (2d Cir.2004) (citing 28 U.S.C. § 2255 )).

Petitioner seeks relief on the basis that he allegedly received ineffective assistance of trial counsel. The Sixth Amendment to the United States Constitution guarantees criminal defendants the effective assistance of counsel. “A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ... has two components.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, Petitioner must show that his attorney's performance “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Second, Petitioner must show that his counsel's deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. 2052. A petitioner “bears a heavy burden” in proving ineffective assistance of counsel. United States v. Gaskin, 364 F.3d 438, 468 (2d Cir.2004). Although a prisoner may not use a § 2255 petition to re-litigate issues that were decided against him on direct appeal, “[a]n ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).

In reviewing a petition for habeas corpus, a court must be mindful that “[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal quotations and citations omitted); see also Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir.1983) (“due to the pro se petitioner's general lack of expertise, courts should review habeas petitions with a lenient eye....”).

B. The Petition is Untimely

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-year statute of limitations on filing a § 2255 petition, which runs from “the date on which the judgment of conviction bec [ame] final.” 28 U.S.C. § 2255(f)(1) ; see also Marcus v. United States, No. 14–CV–5780 (ARR), 2015 WL 3869689, at *6 n.10, 2015 U.S. Dist. LEXIS 80875, at *17–18 n.10 (E.D.N.Y. June 22, 2015). For this purpose, an unappealed conviction becomes final “when the time for filing a direct appeal expires.” Moshier v. United States, 402 F.3d 116, 118 (2d Cir.2005). The AEDPA statute of limitations is considered an affirmative defense. Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir.2000) ; Nosair v. United States, 839 F.Supp.2d 646, 650 (S.D.N.Y.2012).

“It is well established that for purposes of § 2255(f)(1), ‘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 ... [i.e.] 90 days after entry of the Court of Appeals' judgment.’ ” Davis v. United States, No. 07–CR–245S, 13–CV–14S, 2014 WL 2587718, at *1, 2014 U.S. Dist. LEXIS 79096, at *3 (W.D.N.Y. June 10, 2014) (quoting Clay v. United States, 537 U.S. 522, 525, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) ; 28 U.S.C. § 2101(c) ).³ Defendant's conviction was affirmed by the Second Circuit Court of Appeals on June 24, 2010. United States v. Rabbani, 382 Fed.Appx. 39 (2d Cir.2010). The Second Circuit's docket reflects that the Summary Order and Judgment was issued on June 24, 2010, and the Judgment Mandate was issued on July 16, 2010.⁴ Therefore, Petitioner's conviction became final 90 days after the date of the Judgment, i.e ., on September 22, 2010. Accordingly, Petitioner's § 2255 motion to vacate, filed on April 26, 2012, was over seven months late. The petition is untimely on its face.

Petitioner...