Attanasio v. United States of America

Filing 24

MEMORANDUM & ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255). Petitioner's Motion to Expedite (Dkt. 20) is GRANTED. For the aforementioned reasons, the Petition (Dkt. 1) is DENIED as untimely. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability shall not issue. 28 U.S.C. § 2253. The court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Memorandum and Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States. 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully DIRECTED to mail a copy of this Memorandum and Order to Petitioner. So Ordered by Judge Nicholas G. Garaufis on 6/30/2017. (c/m to petitioner, pro se) (Lee, Tiffeny)

P/F

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

LOUIS ATTANASIO,
Petitioner,

MEMORANDUM & ORDER

13-CV-5938(NGG)

-againstUNITED STATES OF AMERICA,

Respondent.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

Petitioner Louis Attanasio brings this pro se petition (the "Petition")for a writ of habeas
corpus pursuant to 28 U.S.C. § 2255. (Pet.(Dkt. 1).) Petitioner argues that, in light ofPeugh v.
United States, 133 S. Ct.2072(2013), he should be resentenced and deemed eligible for parole
under the Parole Commission and Re-Organization Act of 1976("PCRA"), which was in effect

when at least one ofthe predicate acts to his racketeering offense was committed. (Mem.in

Supp. ofPet.("Mem.")(Dkt. 2)* at 13-14.) Petitioner avers only that he is eligible for parole; he
does not otherwise challenge the length ofhis sentence. (See id. at 1.) For the following
reasons, the Petition is DENIED as imtimely.
I.

BACKGROUND

A.

Procedural History

On August 17,2006,Petitioner entered a guilty plea before this court to one count of
racketeering conspiracy and admitted his participation in the following racketeering acts:
(1)loansharking conspiracy, extending from January 1980 to December 2000; and (2)the 1984

' citations to "Dkt." refer to Case No. 13-CV-5938.
All

conspiracy to murder Cesare Bonventre. (Min. Entry(Crim. Dkt. 905)^;^Superseding
Indictment(Crim. Dkt. 1).) The court sentenced Petitioner to 180 months' imprisonment,

followed by a three-year term of supervised release. (See J.(Crim. Dkt. 928).) Petitioner was

sentenced imder the Sentencing Reform Act of 1984("SRA"), which repealed and replaced the
PCRA and became effective on November 1, 1987. S^ Sentencing Reform Act of 1984,Pub. L.
No. 98-473,98 Stat. 1987. The SRA "eliminated parole in the federal system and directed the

Sentencing Commission to promulgate uniform guidelines that would be binding on federal

courts at sentencing."^ Peugh, 133 S. Ct. at 2079. Petitioner did not appeal his sentence.
B.

The Present 28 U.S.C § 2255 Motion

On October 25,2013,Petitioner filed the present § 2255 motion to vacate, set aside, or

correct his sentence. (Pet.) Petitioner asserts that his sentence violates(1)the Ex Post Facto
Clause ofthe United States Constitution and(2)the General Savings statute, 1 U.S.C. § 109.

(See Mem. at 10, 13.) He contends that while his sentence for the racketeering conspiracy was

predicated on two acts—a. murder conspiracy in 1984 and an extortion conspiracy continuing
from January 1980 until December 2000—^the "main part" of his sentence was determined by the
murder conspiracy. (Pet. at 6.) Because the murder conspiracy took place in 1984, before the
effective date ofthe SRA,Petitioner asserts that he should have been sentenced under the PCRA

and thus eligible for parole. (See Mem.at 11-13.) On May 15, 2015, Petitioner filed a motion to
expedite the court's review ofhis Petition. (Mot. to Expedite(Dkt. 20).)

^ All citations to "Crim. Dkt." refer to Case No. 03-CR-1382.

^ The Sentencing Guidelines are no longer binding.

United States v. Booker. 543 U.S.220(2005).

The Government responds that Petitioner's claims are untimely and that the General

Savings statute claim is also procedurally barred."^ (Gov't Opp'n to Pet.("Gov't Opp'n")
(Dkt. 15)at 4, 7.)
II.

DISCUSSION

The threshold question for this court is whether the Petition is timely. Pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996, § 2255 petitions are subject to a one-year

statute oflimitations. The one-year limitations period beings to run from the latest of:
(1)the date on which the judgment of conviction becomes final;
(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,ifthe 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 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.
28 U.S.C. § 2255(f).

As Petitioner's judgment of conviction was entered on September 27,2006(see J.), his
conviction became final on October 12,2006. S^ Moshier v. United States, 402 F.3d 116,118

(2d Cir. 2005)(per curiam)("[F]or purposes of § 2255 motions, an unappealed federal criminal
judgment becomes final when the time for filing a direct appeal expires."); Fed. R. App.

Furthermore, the Government contends that Petitioner's claims fail on the merits as the racketeering conspiracy is
a "straddle offense." (Id at 6-7.) While the underlying conduct began before the SRA became effective, it
continued until January 2004, well after the SRA had become operative, (Id) The Government notes that under

Second Circuit precedent, Petitioner was properly sentenced for his straddle offense under the SRA. (Id at 7(citing
United States v. Storv. 891 F.2d 988, 991-96(2d Cir. 1989)(holding that the SRA requires application ofthe
sentencing guidelines to straddle offenses that began prior to the effective date ofthe sentencing guidelines and
continued past that date)).

p. 4(b)(1)(A)(as effective in 2006)^ (providing that a criminal defendant's notice of appeal must
be filed in the district court within 10 days after the entry ofjudgment); Fed. R. App.P. 26(as

effective in 2006)^(providing that intermediate Saturdays, Sundays, and legal holidays shall be
excluded in computing period oftimes that are less than 11 days).^ Petitioner filed the instant
Petition on October 25,2013. tSee Pet.) Accordingly, the Petition is untimely under § 2225(f)

unless Petitioner can demonstrate that he satisfied one ofthe (f)(2)-(4) prongs.^
Petitioner avers that his Petition is timely under § 2225(Q(3), as it was filed within one

year ofthe Supreme Court's decision in Peugh, 133 S. Ct. at 2078, which he contends announced
a new rule of constitutional law that was made retroactively applicable to cases on collateral
review. (See Mem. at 5-6; Reply in Supp. of Pet.("Reply")(Dkt. 18)at 1.) In Peugh,the
petitioner was convicted of bank fraud in violation of 18 U.S.C. § 1344. S^ 133 S. Ct. at 2078.

Peugh was sentenced in 2009 in accord with the 2009 Sentencing Guidelines, rather than the
Guidelines in place when Petitioner's conduct occurred in 1998. See id. His sentencing range
was 30 to 37 months under the 1998 Guidelines and rose to 70 to 87 months under the 2009

Guidelines. S^ id. at 2078-79. The Supreme Court reversed and remanded the case, holding
that the Ex Post Facto Clause is violated when a defendant is sentenced under the Guidelines in

^ The rule has since been amended to extend a defendant's time to appeal to 14 days. Fed. R. App. P. 4(b)(1)(A)
advisory committee's note to 2009 amendment.

^ The rule as currently enacted provides that Saturdays, Sundays, and legal holidays are counted for "all deadlines
stated in days(no matter the length)." Fed. R. App. P. 26(a)(1) advisoiy committee's note to 2009 amendment.
^ Columbus Day is defined as a "legal holiday" under the rule. Fed. R. App.P.26(a)(6)(A).
® Although not raised by the Petitioner, the court finds any potential equitable tolling argument unavailing.
Petitioner has not alleged that there was anything that prevented him from raising this argument on direct appeal.
See Smith v. McGinnis. 208 F.3d 13,17(2d Cir. 2000)(holding that a petitioner must show that "extraordinary

circumstances prevented him from filing his petition on time" and must also establish that he "acted with reasonable
diligence throughout the period he seeks to toll").

place at sentencing when such Guidelines provide for a higher sentencing range than those in
effect at the time ofthe offense.^ Id. at. 2085.

On Jime 17, 2014,the Second Circuit held that the Supreme Court's Peugh decision did
not announce a"new rule of constitutional law made retroactive to cases on collateral review by

the Supreme Court." Herrera-Gomez v. United States. 755 F.3d 142,147(2d Cir. 2014)

(quoting 28 U.S.C. § 2255(h)(2))(denying authorization of petitioner's successive habeas
petition after determining that the rule announced in Peugh was not retroactive). Only the
Supreme Court may make a new rule retroactive to cases on collateral review. Tvler v. Cain,
533 U.S. 656,663(2001)(discussing this requirement within the context of§ 2244(b)(2)(A)).
The Second Circuit found that the Court "did not expressly hold [the Peugh rule] to be
retroactive to cases on collateral review." Herrera-Gomez. 755 F.3d at 146.

Moreover,the circuit court held that the Peugh decision does not fall under either ofthe

"two categories of cases" held to be retroactive by the Supreme Court in league v. Lane.489
U.S. 288 (1989).^Herrera-Gomez. 755 F.3d at 146. In league,the Court held in relevant
part that a new constitutional rule of criminal procedure generally should not be applied
retroactively to cases on collateral review unless the rule falls within one or both ofthe following
exceptions:(1)the rule protects "certain kinds of primary, private individual conduct beyond the

power ofthe criminal law-making authority to proscribe"; or(2)the procedural rule is so
"implicit in the concept of ordered Hberty" such that it is a watershed rule of criminal procedure.
489 U.S. at 305-08 (internal quotation marks and citations omitted). Petitioner asserts that Peugh

' court adds that Peugh is not directly applicable to the claims advanced by Petitioner. The petitioner in Peugh
The
challenged the Guidelines used to formulate his sentence. 133 S. Ct. at 2078. By contrast, Petitioner challenges the
statute pursuant to which his sentence was imposed. Specifically, Petitioner asserts that he should have been
sentenced under the PCRA rather than the SRA or, at a minimum, he should receive the benefits ofthe PCRA,i.e.
eligibility for parole. (Mem. at 6.)

falls within the "watershed rule of criminal procedure" exception; however, Herrera-Gomez

expressly rejects that contention and articulates that Peugh simply changed the discretion
afforded to judges in determining which Guidelines to apply at sentencing. 755 F.3d at 146. As

such, the Second Circuit held that Peugh "did not set forth a watershed rule of procedure such
that it would apply retroactively under Teague." Herrera-Gomez. 755 F.3d at 146.

Because Peugh did not articulate a right made "retroactively applicable to cases on
collateral review," Petitioner cannot meet the requirements of28 U.S.C. § 2255(f)(3). The
Petition is therefore untimely and is denied on this basis,
m.

CONCLUSION

Petitioner's Motion to Expedite (Dkt. 20)is GRANTED. For the aforementioned
reasons, the Petition(Dkt. 1)is DENIED as untimely. Because Petitioner has not made a
substantial showing ofthe denial of a constitutional right, a certificate of appealability shall not
issue.

28 U.S.C. § 2253. The court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any

appeal from this Memorandum and Order would not be taken in good faith, and,therefore, in
forma pauperis status is denied for the purpose of any appeal. S^ Coppedge v. United
States. 369 U.S. 438,444-45 (1962). The Clerk of Court is respectfully DIRECTED to mail a
copy ofthis Memorandum and Order to Petitioner.
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn, New York

June

2017

-

NICHOLAS G. GARA
&ICH0LA5
trnited States District Ju(ige
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