Vargas-Cuenca v. United States of America
Filing
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MEMORANDUM OPINION AND ORDER: Vargass February 2, 2013 petition for a writ of habeas corpus is denied. In addition, a certificate of appealability shall be not granted. The petitioner has not made a substantial showing of a denial of a federal righ t and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990). Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Opinion and Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall close the case. (Signed by Judge Denise L. Cote on 2/20/2014) (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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YESID REMIGIO VARGAS-CUENCA,
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:
Petitioner,
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:
-v:
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UNITED STATES OF AMERICA,
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:
Respondent.
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13 Civ. 0943 (DLC)
05 Cr. 1262 (DLC)
MEMORANDUM OPINION
AND ORDER
APPEARANCES
For the Petitioner:
J. Roberto Cardenas
119 West 57th Street, Suite 1215
New York, NY 10019
For the Respondent:
Marc P. Berger
Assistant United States Attorney
One St. Andrew’s Plaza
New York, NY 10007
DENISE COTE, District Judge:
On February 2, 2013, Yesid Vargas-Cuenca (“Vargas”) filed a
petition pursuant to 28 U.S.C. § 2255 for a writ of habeas
corpus.
For the following reasons, the petition is denied.
BACKGROUND
The pertinent facts can be quickly summarized.
On
September 4, 2008, Vargas pled guilty to Count One of the
Indictment against him, pursuant to a plea agreement that
contained a waiver of appellate rights and of the right to file
a habeas petition challenging his sentence, so long as the
sentence did not exceed the stipulated guidelines range.
On
December 12, 2008, Vargas was sentenced principally to a term of
imprisonment of 135 months, which was at the bottom of the
stipulated sentencing guidelines range.
Vargas filed an appeal,
which the Court of Appeals dismissed on January 21, 2010.
Meanwhile, in March of 2009, Vargas met on one occasion
with an Assistant United States Attorney (“AUSA”) in the Eastern
District of New York to offer his cooperation in connection with
the prosecution of an individual (“Individual”).
That
Individual was convicted at trial in April 2011.
Vargas was not
called as a witness against the Individual.
The AUSA from the
Eastern District stated, in a letter of October 31, 2011, that
“the information provided by [Vargas] was not used in the EDNY
prosecution of [the Individual] and did not result in any
charges of additional persons.”
On July 30, 2012, the Government advised Vargas’s counsel
that it would not file a motion under Rule 35(b), Fed.R.Crim.P.
Rule 35(b) provides circumstances under which “the court may
reduce a sentence,” “[u]pon the government’s motion made more
than one year after sentencing, based on “the defendant’s
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substantial assistance.”
On December 3, 2012, counsel for Vargas wrote to the Court
to request that Vargas be resentenced under Rule 35(b) due to
his substantial assistance.
An Order of January 8, 2013
required Vargas to make his request by formal motion.
On February 2, 2013, Vargas filed a habeas petition under
§ 2255, seeking a sentence reduction under Rule 35(b) due to his
substantial assistance.
The Government filed an opposition on
April 18, and Vargas a reply on June 12.
DISCUSSION
The Government has opposed Vargas’s habeas petition on
several grounds.
It is unnecessary to reach all of them.
First, this petition is untimely.
AEDPA provides a one-
year period of limitations for a federal inmate to file a habeas
petition under 28 U.S.C. § 2255, which begins to run from the
latest of a number of triggering events, including “the date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review,”
id. § 2244(d)(1)(A), and “the date on which the factual
predicate of the claim or claims presented could have been
discovered through the exercise of due diligence,” id.
§ 2244(d)(1)(D).
Vargas’s one-year clock began to run when his
appeal was denied in January 2010, but the instant petition was
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not filed until three years later, in February 2013.
Moreover,
Vargas knew no later than April 2011 that the Individual had
been convicted; by waiting until 2013 to pursue his belief that
he was entitled to resentencing under Rule 35(b) based on his
substantial assistance, Vargas failed to act with due diligence.
The advice from the Government in July 2012 that it would not
file a Rule 35(b) motion did not restart the statutory one-year
period for filing a habeas petition.
Separately, Rule 35(b), Fed.R.Crim.P., does not provide a
basis for resentencing the defendant based on his substantial
assistance to the Government following sentencing.
There is no
basis to find that Vargas provided substantial assistance to the
federal authorities.
In any event, Rule 35(b) requires a motion
made by the Government.
The Government has made no such motion
here, and the Court cannot review this absent a substantial
showing that the Government’s conduct was the product of an
unconstitutional motive.
181, 185-86 (1991).
See United States v. Wade, 504 U.S.
Vargas has presented no reason to believe
such a motive exists here.
Finally, while Vargas cites
authority permitting courts to scrutinize cooperation
agreements, e.g., United States v. Knights, 968 F.2d 1483, 1486
(2d Cir. 1992), he concedes that there was no cooperation
agreement here.
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CONCLUSION
Vargas’s February 2, 2013 petition for a writ of habeas
corpus is denied.
In addition, a certificate of appealability
shall be not granted.
The petitioner has not made a substantial
showing of a denial of a federal right and appellate review is,
therefore, not warranted.
Tankleff v. Senkowski, 135 F.3d 235,
241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d 24, 24 (2d
Cir. 1990).
Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from
this Opinion and Order would not be taken in good faith.
Coppedge v. United States, 369 U.S. 438, 445 (1962).
The Clerk
of Court shall close the case.
SO ORDERED:
Dated:
New York, New York
February 20, 2014
__________________________________
DENISE COTE
United States District Judge
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