Clinton v. USA

Filing 5

MEMORANDUM OPINION & ORDER....Clintons petition of September 22, 2014 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. (Signed by Judge Denise L. Cote on 7/2/2015) Copies Mailed By Chambers TO Keshawna Clinton. (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
KESHAWNA CLINTON,
:
Movant,
:
:
-v:
:
:
UNITED STATES OF AMERICA,
Respondent.
:
:
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14cv7737(DLC)
10cr34-01 (DLC)
MEMORANDUM
OPINION & ORDER

DENISE COTE, District Judge:
On September 22, 2014, Keshawna Clinton filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2255,
seeking to be resentenced.

She has been given an opportunity to

explain why this petition should not be denied as untimely.

For

the following reasons, the petition is denied.
BACKGROUND
On October 7, 2010, a jury found Clinton guilty of
conspiring to distribute and possession with intent to
distribute one or more kilograms of heroin.

On January 21,

2011, Clinton was sentenced to the mandatory minimum term of
imprisonment of 120 months despite a sentencing guidelines range
of 188 to 235 months.

Clinton did not appeal her conviction.

Accordingly, her time to file a petition for a writ of habeas
corpus expired in February of 2012.
Two prior applications from Clinton have been denied.
January 13, 2012, the Court denied a request to reduce her

On

sentence under the Fair Sentencing Act of 2010 since her
conviction was not for distribution of crack cocaine.

On

September 27, 2012, the Court denied Clinton’s request to be
resentenced.
Then, on September 22, 2014, Clinton filed the instant
petition seeking a resentencing.

She argues that her sentencing

guidelines range was incorrectly calculated.

Specifically, she

argues that the offense level should have been level 34 and not
36, based on the quantity of heroin, and that she was also
entitled to a safety valve adjustment to her sentencing
guidelines range.

Clinton also describes factors that would

warrant leniency at any resentencing.

She adds that she did not

appeal from her conviction because she did not understand the
complete process and was told she could not appeal.
In an Order of October 30, Clinton was given an opportunity
to explain why her petition should not be dismissed as untimely.
The Order outlined the elements of an equitable tolling
analysis.
In a December 1 filing, Clinton contends that she has
diligently been pursuing her rights by filing the two prior
applications noted above.

She also provides evidence of the

many classes she has taken while incarcerated, arguing in effect
that her busy class schedule has interfered with her ability to
file this petition more quickly.

Finally, she explains that she
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only recently came to understand that a Court could impose a
sentence without regard to a statutory mandatory minimum term of
imprisonment based on the substantial assistance that a
defendant provides to “judicial economy.”

She argues that the

prison classes she has taken beginning in 2011 are evidence of
that substantial assistance to judicial economy.
DISCUSSION
The one-year limitations period for 28 U.S.C. § 2255
petitions may be equitably tolled “where the petitioner shows
(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way and
prevented timely filing.”

Rivas v. Fischer, 687 F.3d 514, 538

(2d Cir. 2012) (citing Holland v. Florida, 560 U.S. 631, 649
(2010)).

The determination that circumstances faced by

petitioner were “extraordinary” “depends not on how unusual the
circumstance alleged to warrant tolling is among the universe of
prisoners, but rather how severe an obstacle it is for the
petitioner endeavoring to comply with AEDPA’s limitations
period.”

Id. (citation omitted).

Clinton has failed to show that she was sufficiently
diligent to qualify for equitable tolling of her time to file a
petition for a writ of habeas corpus.
must be denied as untimely.

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Accordingly, the petition

In any event, the petition would be denied as well on the
merits.

The sentence was the lowest sentence that could be

given to Clinton in light of the statutory mandatory minimum
sentence of ten years’ imprisonment.

While the safety valve

provision of the law would have permitted a sentence below the
mandatory minimum term of imprisonment, Clinton was given the
opportunity to qualify for the safety value and chose not to
attempt to do so.
At the beginning of the January 21, 2011 sentencing
proceeding, the Court inquired about Clinton’s decision to not
attempt to qualify for the safety valve.

Clinton had already

engaged in one safety valve proffer session, but the Government
had judged her to be untruthful.

Clinton had rejected the

opportunity to make a second proffer.

Over the course of

several pages of transcript, the Court engaged in an extended
colloquy with defense counsel to ensure that Clinton’s decision
was well informed and firm.

The Court offered Clinton the

opportunity to adjourn the sentence to make the necessary
proffer to the Government to qualify for the safety valve.
Nothing in Clinton’s present submission suggests that these
issues were not thoroughly discussed with and considered by
Clinton at and before her sentencing proceeding.

Clinton having

made a knowing and voluntary waiver of her right to engage in a
safety valve proffer, she is unable to show that the Court could
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have imposed a sentence below the mandatory minimum term of
imprisonment.
CONCLUSION
Clinton’s petition of September 22, 2014 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.
States, 369 U.S. 438, 445 (1962).

Coppedge v. United

The Clerk of Court shall

close the case.
Dated:

New York, New York
July 2, 2015
__________________________________
DENISE COTE
United States District Judge

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