Lespier v. USA
ORDER DISMISSING CASE. Please see attached Ruling & Order for details. Signed by Judge Robert N. Chatigny on 10/4/17. (Jones, P.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA,
Case No. 3:14-cv-411 (RNC)
RULING AND ORDER
Petitioner Richard Lespier brings this action pro se under
28 U.S.C. § 2255 challenging his conviction and sentence for
murder in aid of racketeering in violation of 18 U.S.C. §
moves to dismiss the petition,
arguing that petitioner’s claims are untimely and without merit.
For reasons that follow, the petition is dismissed.
In 1998, petitioner was indicted for murder in aid of
See United States v. Lespier, 3: 98-cr-102 (AHN).
He was found guilty by a jury and sentenced to life imorisonment,
as required by § 1959(a)(1).
The Second Circuit affirmed the
United States v. Adorno, 5 F. App'x 65, 65 (2d Cir.
A motion for a new trial was denied.
On March 16, 2009, petitioner moved to set aside the
judgment and dismiss the indictment.
Lespier v. United States,
The motion was denied.
reopen the case to file a notice of appeal.
Petitioner moved to
The Court denied
this motion on January 26, 2011, and petitioner filed a notice of
The Second Circuit granted the Government’s motion for
summary affirmance on December 1, 2011.
Lespier v. United
States, No. 11-498 (2d Cir. Dec 1, 2011).
On November 26, 2013, petitioner filed a motion in the
Second Circuit for leave to file a successive petition under 28
U.S.C. § 2255, which the Court denied.
Lespier v. United States,
No. 13-4461 (2d Cir. Dec 26, 2013).
On March 28, 2014, petitioner filed the present action
claiming his sentence was enhanced based on facts not found by
the jury in violation of Alleyne v. United States, 133 S. Ct.
On February 17, 2015, petitioner amended the
petition to add claims alleging that he was deprived of his right
to effective assistance of counsel.
Section 2255(f)1 requires that a federal habeas petitioner
file his petition within one year from the latest of:
(1) the date on which the judgment of conviction
(2) the date on which the impediment to making a
motion created by governmental action in violation of
the Constitution or laws of the United States is
removed, if the movant was prevented from making a
motion by such governmental action;
(3) the date on which the right asserted was
initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court
Though the Court construed a previous filing as a petition
brought pursuant to § 2255, petitioner was not given an
opportunity to amend or withdraw the filing and, accordingly,
this petition is treated as his initial petition.
and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the claim
or claims presented could have been discovered
through the exercise of due diligence.
Petitioner filed his claim more than a decade after his
conviction became final.
He does not allege any facts supporting
his claims that could not have been discovered years ago through
the exercise of due diligence.
Petitioner relies on § 2255(f)(3) to avoid the statute of
limitations, arguing that his sentence was based on judicial
factfinding in violation of Alleyne.
There was no such error.
In Alleyne, the Court held that any fact that increases the
mandatory minimum sentence must be found by a jury.
133 S. Ct.
In this case, a sentence of life imprisonment was
mandated by the applicable statute.
Moreover, Alleyne does not apply retroactively to cases on
The rule announced in Alleyne could apply
retroactively if it qualified as a “watershed” rule implicating
See Teague v. Lane, 489 U.S. 288, 311
Alleyne does not announce such a a watershed rule.
See Gil v. United States, No. 14-cv-1336(KMW), 2015 WL 4617235,
at *4 (S.D.N.Y. Aug. 3, 2015).
III. Certificate of Appealability
In a proceeding under § 2255, a certificate of appealability
may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.”
28 U.S.C. §
Under this standard, a certificate of appealability
will not issue unless reasonable jurists could debate whether the
petition should have been resolved in a different manner, or the
issues are adequate to deserve encouragement to proceed further.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Petitioner has not
made this showing, so a certificate of appealability will not
Accordingly, the petition is hereby dismissed.
The Clerk may enter judgment and close the case.
So ordered this 4th day of October 2017.
Robert N. Chatigny
United States District Judge
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