Aiken v. USA
Filing
8
OPINION AND ORDER. #103505 The Court has considered all of Petitioner's arguments and has determined that they are without merit. There is no need for the requested evidentiary hearing, because "the motion and the files and records of the c ase conclusively show that the prisoner is entitled to no relief." § 2255(b). Accordingly, 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. & #167; 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. (Signed by Judge John F. Keenan on 8/20/2013) (rjm) Modified on 8/21/2013 (ca).
Case 1:09-md-02013-PAC Document 57
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES DISTRICT COURT
ERNEST AIKEN,
:
SOUTHERN DISTRICT OF NEW YORK :
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Petitioner,
:
In re FANNIE MAE 2008 SECURITIES
: :
LITIGATION
-against: :
: :
UNITED STATES OF AMERICA,
: :
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:
Respondent.
:
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Filed 09/30/10 Page 1 of 45
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: Aug. 20, 2013
Nos. 08 Civ. 78316120 (JFK)
12 Civ. (PAC)
09 MD 2013 (PAC)
06 Cr. 479 (JFK)
OPINION & & ORDER
OPINION ORDER
HONORABLE PAUL A. CROTTY, United States District Judge:
JOHN F. KEENAN, United States District Judge:
BACKGROUND1
Before the Court is Petitioner Ernest Aiken’s (“Aiken” or
The early years of this decade saw boom in home set aside, or correct his
“Petitioner”) pro se motion ato vacate, financing which was fueled, among
other things, by low interest to 28 U.S.C. § 2255. New lending reasons that as
sentence pursuant rates and lax credit conditions. For the instruments, such
follow, Petitioner’s risk loans) and Alt-A mortgages (low-documentation loans)
subprime mortgages (high credit 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
On March 14, 2007, Petitioner pled guilty to three counts
available in the future. Lending discipline was lacking in the system. Mortgage originators did
of bank robbery, in violation of 18 U.S.C. § 2133(a). At
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
sentencing, the applicable imprisonment range under the U.S.
originators sold their loans into the secondary mortgage market, often as securitized packages
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) was
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
determined to be 151 to 188 months, reflecting a total offense
But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
level of 29 and a criminal history category of VI. Contributing
and home prices began to fall. In light of the changing housing market, banks modified their
to this Guidelines range was Aiken’s status as a “career
lending practices and became unwilling to refinance home mortgages without refinancing.
offender” under U.S.S.G. § 4B1.1, which was conceded by the
defense at the sentencing hearing. (Sent. Tr. at 3:19–22; id. at
1
Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,
5:11–13.) The Court ultimately sentenced Aiken to a prison
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.term
1
of fifteen years. (Id. at 10:7–21.)
On January 8, 2009, the
Second Circuit affirmed the sentence as both substantively and
procedurally reasonable. See United States v. Aiken, No. 073808-Cr, 2009 WL 39969 (Jan. 8, 2009).
Petitioner filed the instant § 2255 motion on August 6,
2012.
The basis for his motion is that the Supreme Court’s
decision in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010),
as interpreted by the Fourth Circuit in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), constitutes a
change in law that invalidates his classification as a “career
offender” under the Guidelines.
II.
A.
Discussion
Legal Standard
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,”
2
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 limitations 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, Aiken’s conviction became final on April 8, 2009 — one
year after the Second Circuit’s order became final, which was
ninety days after it was issued.
In certain situations, petitioners are entitled to
equitable tolling of the limitations deadline on a Section 2255
motion. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). A
petitioner must satisfy two elements to benefit from equitable
tolling.
First, he must show that he exercised “reasonable
diligence” during the limitations period, and second, that
3
“extraordinary circumstances” precluded him from timely filing.
Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001).
B.
1.
Application
Petitioner’s Motion Is Untimely
Petitioner argues that his motion is timely either under
§ 2255(f)(3) or through equitable tolling.
He asserts that
§ 2255(f)(3) confers timeliness “if Simmons applies
retroactively to this case.” (ECF No. 3 at 3. 1)
He also states
that he is entitled to equitable tolling because the Fourth
Circuit’s Simmons decision constitutes “extraordinary
circumstances” by effecting a landmark change in law that
applies to his case. (ECF No. 1 at 13.)
Construing Aiken’s
submissions liberally, the Court considers both arguments, but
concludes that neither is meritorious.
First, section 2255(f)(3), which permits filing one year
from “when the right asserted is recognized initially by the
Supreme Court, if it has been made available retroactively to
cases on collateral review,” does not militate in Aiken’s favor.
Aiken signed his motion on August 2, 2012, and it was filed four
1
Aiken apparently filed two memoranda of law on August 6, 2012. One
was attached to the motion, and is filed at ECF No. 1. The other can
be found at ECF No. 3. Construing Aiken’s pro se submissions
liberally, the Court has accepted and considered both memoranda. This
opinion refers to them simply as ECF No. 1 and ECF No. 3 for clarity.
4
days later.
Carachuri was decided on June 14, 2010, more than
two years earlier.
Thus, even if Carachuri recognized a
retroactively applicable right, Petitioner’s motion is untimely.
That Aiken filed within one year of the Fourth Circuit’s Simmons
decision is of no moment, because § 2255(f)(3) “unequivocally
identifies one, and only one, date from which the 1–year
limitation period is measured:
‘the date on which the right
asserted was initially recognized by the Supreme Court.’” Dodd
v. United States, 545 U.S. 353, 357 (2005) (considering and
rejecting the argument that the limitation period does not begin
to run until the asserted right is made retroactive); accord
Holman v. United States, 12 Civ. 986, 2013 WL 593778, at *4 (D.
Conn. Feb. 15, 2013) (holding that Section 2255(f)(3) does not
apply because petitioner did not file within a year of Carachuri
and because Simmons “is not a Supreme Court case and . . .
simply applied Carachuri beyond the immigration law context”);
see also United States v. Odom, No. 08 Cr. 67, 2013 WL 2435915,
at *2 & nn.6–7 (D. Me. June 4, 2013).
Nor does Simmons provide a basis for equitable tolling.
Courts of this circuit have repeatedly held that “the
unavailability of that helpful precedent is not an
‘extraordinary circumstance,’” because that phrase is meant to
connote an event which actually prevents a petitioner from
5
filing his motion. Tellado v. United States, 799 F. Supp. 2d
156, 165–66 (S.D.N.Y. 2011); accord Shannon v. Newland, 410 F.3d
1083, 1089–90 (9th Cir. 2005).
Indeed, at least one such court
has rejected the exact argument Aiken makes here, concluding
that Simmons, which merely clarified North Carolina law after
Carachuri, does not constitute an extraordinary circumstance.
See Holman, 2013 WL 593778, at *4.
Accordingly, the Court
concludes that Petitioner’s motion is untimely, and must be
dismissed.
2.
Carachuri and Simmons Are Not Retroactively Applicable
Although Aiken’s motion must be dismissed under § 2255(f),
the Court notes that even if Aiken had filed it within a year of
Carachuri, it would fail because Carachuri does not announce a
new right that is retroactively applicable to cases on
collateral review. See United States v. Powell, 691 F.3d 554,
557–60 (4th Cir. 2012); Fields v. Warden, FCC Coleman-USP 1, 484
F. App’x 425, 427 (11th Cir. 2012).
Indeed, the Carachuri case
bears little resemblance to Petitioner’s.
The Supreme Court
merely held that when a defendant in an immigration proceeding
“has been convicted of a simple possession offense that has not
been enhanced based on the fact of a prior conviction, he has
not been convicted under 8 U.S.C. § 1229b(a)(3) of a felony
punishable as such under the Controlled Substances Act, 18
6
U.S.C. § 924(c)(2).” Fields, 484 F. App’x at 427 (quoting
Carachuri, 130 S. Ct. at 2589) (internal quotation marks and
alterations omitted).
In addition to the Fourth and Eleventh Circuits, several
district courts have concluded that Carachuri does not apply
retroactively. See, e.g., Nelson v. United States, No. 12 Civ.
5265, 2013 WL 2182602, at *2–3 (D.N.J. May 20, 2013); Bogardus
v. United States, 2012 WL 292870, at *6 (S.D. Ga. Jan. 4, 2012)
(collecting cases and stating that “nearly every court to
consider whether Carachuri applies retroactively has concluded
that it does not”).
Aiken offers no compelling reason to depart
from the prevailing view.
Nor does Simmons recognize such a retroactively applicable
right, as the Fourth Circuit has itself repeatedly stated. See
United States v. Melvin, 507 F. App’x 296, 297 (4th Cir. 2013)
(per curiam) (noting that Carachuri and Simmons “do not apply
retroactively to cases on collateral review”); United States v.
Brown, 501 F. App’x 227, 227 (4th Cir. 2012) (same); Powell, 691
F.3d at 557–60.
Simmons applied Carachuri to North Carolina law
and held that that for a prior conviction to serve as a
predicate felony offense, it must have been punishable as to
that specific defendant for a term exceeding one year. Simmons,
349 F.3d at 243–47 (invalidating the petitioner’s sentence
7
“[b]ecause the state sentencing court never made the recidivist
finding necessary to expose Simmons to a higher sentence” under
North Carolina’s sentencing scheme).
In view of the Fourth
Circuit’s interpretation of its Simmons decision in Powell,
district courts across the country have concluded that neither
Simmons nor the combination of Simmons and Carachuri are
retroactively applicable. See, e.g., Bowman v. United States,
No. 12 Civ. 2249, 2013 WL 1914484, at *2 (D.S.C. May 8, 2013);
Odom, 2013 WL 2435915, at *2 & n.7; Holman, 2013 WL 593778, at
*4; Crawford v. United States, No. 12-1545, 2012 WL 5199167, at
*6 (D.N.J. Oct. 19, 2012).
3.
This Court joins in that conclusion.
Petitioner’s Motion Is Substantively Meritless
The Court finally notes that putting everything else aside,
Aiken’s position is meritless as a matter of substance.
Throughout his papers, Aiken repeatedly states that his 1997
felony conviction 2 for attempted sale of a controlled substance
is not a controlled substance offense under U.S.S.G. § 4B1.2(b)
because “he could not have been sentenced to more than one year
of imprisonment under New York State Sentencing Guidelines.”
2
As the Government points out, Aiken actually has two felony
convictions for attempted criminal sale of a controlled substance, one
based upon a July 28, 1995 arrest and another based upon a November 9,
1995 arrest. He pled guilty to both offenses on February 19, 1997,
and was sentenced to one year of imprisonment for each offense. (Gov.
Opp. at 14–15 n.6.)
8
(ECF No. 1 at 18.)
This is an incorrect statement of the law.
Criminal sale of a controlled substance in the third degree is a
class B felony in New York, see N.Y. Penal Law § 110.05(4), and
attempt of a class B felony constitutes a class C felony, see
id. § 220.39.
At the time of Aiken’s sentencing in New York
state court, a class C felony was punishable by a term of up to
fifteen years. See id. § 70.00(2)(c) (1996).
As Aiken points
out (Reply at 24–25), he was instead given an “alternative
definite sentence” pursuant to subdivision 4, which at the time
stated that where the sentence is for certain class C felonies
and the court, having regard to the nature and
circumstances of the crime and to the history and
character of the defendant, is of the opinion that a
sentence of imprisonment is necessary but that it
would be unduly harsh to impose an indeterminate or
determinate sentence, the court may impose a definite
sentence of imprisonment and fix a term of one year or
less.
Id. § 70.00(4).
The statutory language makes plain the flaw in Aiken’s
position.
The Penal Law in 1997 imposed no “one year cap on
Aiken’s sentence,” as he claims (ECF No. 1 at 18); rather, it
prescribed a fifteen year maximum but afforded the sentencing
judge the discretion to impose a definite sentence of up to one
year.
This is unlike the scheme in North Carolina, which “does
not establish a guidelines system; rather, it mandates specific
sentences.” Simmons, 649 F.3d at 244 (alterations omitted).
9
Whereas the sentencing judge in Simmons lacked the discretion to
sentence the petitioner to more than one year, it is clear that
Aiken’s sentencing judge in 1997 had that discretion and simply
chose to impose a lower sentence.
Aiken’s conviction was
therefore properly considered by the Probation Office and this
Court when he was designated a career criminal for Guidelines
purposes. See Bogardus, 2012 WL 292870, at *5 (“[N]owhere in
Carachuri did the Supreme Court say that offenses for which the
actual sentence imposed is for a term of one year or less are
thereby rendered ‘hypothetical,’ or that they no longer qualify
as federal felonies.”)
III. Conclusion
The Court has considered all of Petitioner’s arguments and
has determined that they are without merit.
There is no need
for the requested evidentiary hearing, because “the motion and
the files and records of the case conclusively show that the
prisoner is entitled to no relief.” § 2255(b).
Accordingly,
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
10
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
August ~C7' 2013
John F. Keenan
United States District Judge
11
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