Williams v. USA
Filing
8
OPINION & ORDER: For the foregoing reasons, Petitioners motion to vacate, set aside or correct his sentence pursuant to § 2255 is denied. The court certifies, pursuant to 28 U.S.C. § 1951 (a) (3), that any appeal from this Order would not b e taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Furthermore, as the Petitioner makes no substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253. (Signed by Judge John F. Keenan on 1/11/2013) (ft)
Case 1:09-md-02013-PAC Document 57
Filed 09/30/10 Page 1 of 45
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: Jan. 11, 2013
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
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In -againstre FANNIE MAE 2008 SECURITIES
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08 834 (JFK)
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Nos. 98 Cr.Civ. 7831 (PAC)
LITIGATION
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09 MD 2013 (JFK)
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12 Civ. 4800 (PAC)
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: OPINION & ORDER ORDER
OPINION &
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PAUL WILLIAMS,
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Defendant.
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HONORABLE PAUL A. CROTTY, United States District Judge:
JOHN F. KEENAN, United States District Judge:
BACKGROUND1
Before the Court is Petitioner Paul Williams’s (“Williams”
The early years of this decade saw a boom in home financing which was fueled, among
or “Petitioner”) pro se motion to vacate, set aside, or correct
other things, by low interest rates and lax credit conditions. New lending instruments, such as
his sentence pursuant to 28 U.S.C. § 2255. For the following
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
reasons, Petitioner’s motion is denied.
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
I.
Background
assumption that the market would continue to rise and that refinancing options would always be
After the future. Lending discipline Petitioner system. Mortgage originators
available ina jury trial in whichwas lacking in thewas found guilty of did
two not hold these high-risk mortgage loans. Rather than carry the rising risk onon January
counts of drug-related offenses, he was sentenced their books, the
11, originators sold their loans into the terms of twenty-seven years of
2001 to two concurrent secondary mortgage market, often as securitized packages
imprisonment, to be followed by ten years of supervised release.
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
On July 11, 2011, the Second Circuit affirmed the judgment of
But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
conviction, and the Supreme Court denied certiorari on November
and home prices began to fall. In light of the changing housing market, banks modified their
26, 2001. See United States v. Pinales, 14 F. App’x 100 (2d
lending practices and became unwilling to refinance home mortgages without refinancing.
Cir.), cert. denied, 534 U.S. 1049 (2001).
Petitioner sought a sentence _)” or to the “Complaint” are to the Amended
Unless otherwise indicated, all references cited as “(¶ reduction filed under 18 Complaint,
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.
1
U.S.C. § 3582(c)(2).
By Order dated June 16, 2009, this Court
1
denied the motion and declined to recharacterize the collateral
relief sought in that motion as relief under § 2255. Williams,
98 Cr. 0834-01 (S.D.N.Y. June 16, 2009), appeal dismissed, No.
09-3070 (2d Cir. July 14, 2010).
Petitioner also sought audita
querela relief with respect to his conviction, which was denied
by this Court on July 27, 2009. See id., aff’d No. 09-3444 (2d
Cir. July 14, 2010).
Petitioner filed the instant § 2255 motion on June 18,
2012.
By Order dated July 6, 2012, this Court directed
Petitioner to show why the motion should not be denied as timebarred, because by that time more than ten years had elapsed
since the conviction became final.
Petitioner responded on
August 24, 2012, claiming that the motion is timely under
§ 2255(f)(3).
The Court also notes that, after filing this § 2255 motion,
Petitioner subsequently filed a separate motion seeking a
reduction in his sentence under 18 U.S.C. § 3582(c)(2).
That
motion will not be addressed in this Order.
II.
Discussion
Section 2255 allows a prisoner held in federal custody to
collaterally challenge his federal conviction or sentence. 28
U.S.C. § 2255(a).
To obtain relief under this provision, a
petitioner must establish “a constitutional error, a lack of
jurisdiction in the sentencing court, or an error of law or fact
that constitutes a ‘fundamental defect which inherently results
in a complete miscarriage of justice.’” United States v. Bokun,
73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368
U.S. 424, 428 (1962)).
Because Petitioner is proceeding pro se,
his submissions will be “liberally construed in his favor,”
Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) (citing Haines
v. Kerner, 404 U.S. 519, 520 (1972)), and will be read “to raise
the strongest arguments that they suggest,” Green v. United
States, 260 F.3d 78, 83 (2d Cir. 2001) (citing Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).
Section 2255(f) sets forth the statute of limitation to
file for relief.
A movant must file within one year from the
latest of four benchmark dates:
(1) when the judgment of
conviction becomes final; (2) when a government-created
impediment to making such a motion is removed; (3) when the
right asserted is recognized initially by the Supreme court, if
it has been made available retroactively to cases on collateral
review; or (4) when the facts supporting a claim could have been
discovered through the exercise of due diligence. See § 2255(f).
Here, Williams’s conviction became final on November 26, 2001,
and he concedes that the motion would therefore be untimely
under the first benchmark.
Petitioner argues instead that his motion is timely under
§ 2255(f)(3) because it was filed within a year of the Supreme
Court’s decisions in Lafler v. Cooper, 132 S. Ct. 1376 (2012),
Missouri v. Frye, 132 S. Ct. 1399 (2012), and DePierre v. United
States, 131 S. Ct. 2255 (2012).
He further states that these
cases should be applied to him retroactively.
Since Frye was decided, “nearly every court to have
addressed the issue has held that Frye did not create a new
constitutional right to be applied retroactively to cases on
collateral review; it merely applied Strickland v.
Washington . . . to a particular set of circumstances, i.e., the
obligation of defense counsel to advise a defendant of plea
offers.” Ortiz v. United States, No. 12 Civ. 5326, 2012 WL
5438938, at *2 (E.D.N.Y. Nov. 7, 2012) (compiling cases).
The
Court concludes that Frye does not make Petitioner’s § 2255
motion timely, because that case did not articulate a new right
that can be retroactively applied to Petitioner.
His assertion
that Lafler is retroactively applicable fails for the same
reason. See, e.g., United States v. Lawton, No. 12-3240, 2012 WL
6604576, at *3 (10th Cir. Dec. 19, 2012) (noting that Lafler
cannot be the basis for a § 2255(f)(3) extension because, among
other reasons, “the Supreme Court could not have granted relief
in Lafler itself if it were recognizing a new right” (citing
Lafler, 132 S. Ct. at 1395–96 (Scalia, J., dissenting)));
Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir.
2012); Cooper v. United States, Nos. 11 Civ. 3054, 04 Cr. 801,
2013 WL 57043, at *2 (S.D.N.Y. Jan. 4, 2013).
In DePierre, the Supreme Court clarified that the phrase
“cocaine base” as used in 21 U.S.C. § 841(b)(1)(A)(iii) includes
all forms of base cocaine, not just crack cocaine. See DePierre,
131 S. Ct. at 2231–32.
It is not retroactively applicable, did
not recognize a new constitutional right, and cannot confer
timeliness upon Petitioner’s instant motion under § 2255(f)(3).
See, e.g., Chestnut v. United States, No. 12-0697, 2012 WL
3262728, at *2 (S.D. Ill. Aug. 9, 2012) (holding that DePierre
“did not establish a new rule of constitutional law nor make any
such rule” retroactive, and compiling cases in accord); Wallace
v. United States, Nos. 4:21-cv-388-A, 4:07-cr-039-A, 2012 WL
2161268, at *3 (N.D. Texas, June 14, 2012).
Additionally, the
Court notes that the jury specifically found Petitioner guilty
of possessing cocaine base in the form of crack cocaine.
Thus,
even if DePierre applied retroactively to this case (which it
does not), it would not provide a basis for relief. Cf. Wallace,
2012 WL 2161268, at *3.
III. Conclusion
For the foregoing reasons, Petitioner’s motion to vacate,
set aside or correct his sentence pursuant to § 2255 is denied.
The court certifies, pursuant to 28 u. S. c.
§
1951 (a) (3) ,
that any appeal from this Order would not be taken in good
faith, and therefore in forma pauperis status is denied for the
purpose of an appeal. See Coppedge v. United States, 369 U.S.
438, 444-45
(1962).
Furthermore, as the Petitioner makes no substantial showing
of a denial of a constitutional right, a certificate of
appealability will not issue. See 28 U.S.C.
§
2253.
SO ORDERED.
Dated:
New York, New York
January I I , 2013
i
i
John F. Keenan ~
nlted States District Judge
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