Gonzalez v. United States of America
Filing
38
OPINION AND ORDER: For the foregoing reasons, Gonzalezs Supplemental § 2255 Petition, (Crim. Doc. 86), is accepted as timely. Gonzalezs Relation Back Amendment, (Crim. Doc. 92), is denied as untimely. Pursuant to my prior order, (Crim. Dkt. En try July 8, 2016), the Governments substantive response is due forty-five (45) days from the date of this Opinion & Order. The Government should address Gonzalezs motions for discovery, (Crim. Docs. 97, 98, 101), in its substantive response. The m erits briefing will be referred to a magistrate judge for a Report & Recommendation. The Clerk of Court is respectfully directed to terminate the pending motions, (Crim. Docs. 85, 87; Civ. Docs. 6, 9), and mail a copy of this order to the pro se Petitioner at his most recent address. SO ORDERED. (Signed by Judge Vernon S. Broderick on 10/17/2018) (jca) Transmission to Docket Assistant Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
:
FREDDIE GONZALEZ,
:
Petitioner, :
:
-v:
:
UNITED STATES OF AMERICA,
:
:
Respondent. :
:
---------------------------------------------------------X
10/17/2018
15-CV-8831 (VSB)
08-CR-684 (VSB)
OPINION & ORDER
Appearances:
Freddie Gonzalez
Lewisburg, Pennsylvania
Pro Se Petitioner
Michael Douglas Maimin
Jessica Rose Lonergan
Laurie Ann Korenbaum
U.S. Attorney’s Office, SDNY
New York, New York
Counsel for Respondent
VERNON S. BRODERICK, United States District Judge:
Pro se Petitioner Freddie Gonzalez filed what appears to be an amended petition that
purports to relate back to his initial petition to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255, currently pending. I directed the Government to respond to Gonzalez’s
filing to address whether “relation back” is appropriate here. Because Gonzalez’s amended
petition does not in fact relate back to his original filings, it is untimely and I will not consider it.
However, Gonzalez’s prior supplementary petition is entitled to equitable tolling.
Background
On January 20, 2012, after a two-week jury trial before Judge Shira A. Scheindlin,
Gonzalez was convicted of four counts of intentional murder while engaged in a narcotics1
trafficking crime involving at least five kilograms of cocaine, in violation of 21 U.S.C. § 848(e)
and 18 U.S.C. § 2. On June 1, 2012, Judge Scheindlin sentenced Gonzalez to life imprisonment
on each count, to run concurrently. (Crim. Doc. 71.) Gonzalez appealed his conviction and
sentence. On August 21, 2014, the United States Court of Appeals for the Second Circuit issued
an opinion affirming his conviction and sentence. United States v. Gonzalez, 764 F.3d 159 (2d
Cir. 2014). The mandate issued on September 15, 2014. (Crim. Doc. 79.) The United States
Supreme Court denied Gonzalez’s petition for a writ of certiorari on November 10, 2014.
Gonzalez v. United States, 135 S. Ct. 492 (2014).
On or about October 12, 2015, Gonzalez wrote two letters to Judge Scheindlin,
requesting an extension of his November 10, 2015 deadline to file his petition pursuant to 28
U.S.C. § 2255 because the prison where he was housed was placed on “extensive lockdown”
between July and September, and again beginning on October 8, during which time he was not
allowed access to the prison law library. (Crim. Docs. 80, 81.)
On November 1, 2015, Gonzalez mailed his petition pursuant to 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the “Initial § 2255
Petition”), which consisted of a form motion and brief in support. (Crim. Doc. 82.) On
November 8, 2015, Gonzalez executed a “Sworn Affidavit of Evidential Facts,” which was
docketed on November 13, 2015. (Crim. Doc. 83.)
On November 24, 2015, Judge Scheindlin issued an order granting Gonzalez’s request to
file supplemental papers with additional grounds for relief within forty-five days from the date of
that order, and providing that the Government would thereafter have forty-five days to respond.
(Crim. Doc. 84.)
Presumably prior to seeing Judge Scheindlin’s order, Gonzalez sent a follow-up letter
2
dated November 25, and docketed December 4, 2015, requesting an extension to amend his
Initial § 2255 Petition. (Crim. Doc. 85.) In that letter, he said that his Initial § 2255 Petition
“was not completely developed as regards all of the issues that [he] seeks to raise,” and that the
prison “ha[d] been the subject of multiple security-premised lockdowns that began on July 8,
2015 and . . . end[ed] on November 1, 2015.” (Id.)
After receiving Judge Scheindlin’s order, Gonzalez made another request for an
extension on January 3, 2016, and docketed on January 11, 2016. (Civ. Doc. 9.) In this letter,
Gonzalez asked how much time he had left to file his supplementary papers and asked for more
time because the institution was again on lockdown. (Id.) On January 13, 2016, Gonzalez
executed a “Supplemental Issue to Petitioner[’]s § 2255 Additional Grounds,” which was
docketed January 21, 2016 (“Supplemental § 2255 Petition”). (Crim. Doc. 86.)
Pursuant to Judge Scheindlin’s November 24 Order, the Government had until March 7,
2016 to respond. On February 25, 2016, the Government requested that Judge Scheindlin find
that Gonzalez had waived his attorney client privilege and direct Gonzalez’s trial counsel to file
affidavits responding to the claims in Gonzalez’s Initial § 2255 Petition. The Government also
sought an extension of its time to respond given its request concerning Gonzalez’s trial counsel.
(Crim. Doc. 87.) Judge Scheindlin granted the Government’s application, and ordered
Gonzalez’s counsel to submit affidavits within forty-five days, by April 11, 2016. (Crim. Docs.
88, 89.) The Government represented that, on April 13, 2016, it received an affidavit signed by
and/or sworn to by Gonzalez’s trial attorneys. (Crim. Doc. 90.) On April 28, 2016, this case was
reassigned to me, and I issued on order informing the parties that “all deadlines and schedules
ordered by Judge Scheindlin remain in effect, including those contained in Judge Scheindlin’s
February 25, 2016 Order.” (Civ. Doc. 15.)
3
On June 20, 2016, Gonzalez submitted a document titled “Relation Back Amendment,”
which was filed on the docket on June 24, 2016. (Crim. Doc. 92.) I directed the Government to
respond on or before July 8, 2016 regarding whether it believed relation back was appropriate
under the circumstances. (Crim. Doc. 91.) On July 7, 2016, the Government filed its brief in
response, arguing that (1) the “Relation Back Amendment” was untimely and does not relate
back to Gonzalez’s Initial § 2255 Petition and (2) the claims raised in Gonzalez’s Supplemental
§ 2255 Petition were also untimely and did not relate back to his Initial § 2255 Petition. (Crim.
Doc. 93.) The Government also requested, and I granted, leave to adjourn their deadline to
submit a substantive response to Gonzalez’s § 2255 petition until forty-five days after the
resolution of the relation back issues. (Crim. Doc. 93; Crim. Dkt. Entry July 8, 2016.) Gonzalez
filed two letters in response, on July 26 and August 2, 2016, respectively. (Crim. Docs. 94, 95.)
He also filed a motion for discovery of certain information, a motion to amend his request for
discovery, and a renewed motion to amend discovery and for an evidentiary hearing on
November 3, 2016, January 26, 2017, and February 26, 2018. (Crim. Docs. 97, 98, 101.)
Discussion
The Government argues that neither the Supplemental § 2255 Petition, nor the Relation
Back Amendment, should be considered as part of Gonzalez’s § 2255 petition. Because
Gonzalez’s Supplemental § 2255 Petition was filed (1) with Judge Scheindlin’s permission after
his Initial § 2255 Petition was timely filed, and (2) after he made timely requests for extensions
of time on the ground that he lacked access to the prison law library for several months leading
up to the deadline, I find that equitable tolling is appropriate. Therefore, the Supplemental
§ 2255 Petition will be considered part of Gonzalez’s Initial § 2255 Petition. However, because
the Relation Back Amendment does not contain claims that have a common core of operative
4
facts with the claims in Gonzalez’s Initial § 2255 Petition it does not relate back, and is therefore
untimely.
Applicable Law
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) mandates a oneyear statute of limitations period for filing of a habeas petition by a person in custody. 28 U.S.C.
§ 2255(f). Where the United States Supreme Court has denied a petitioner’s petition for a writ of
certiorari, that one-year period begins when the Supreme Court denies the petition. See Rosa v.
United States, 785 F.3d 856, 859 (2d Cir. 2015). The one-year filing deadline bars claims not
raised in the original petition where an amended petition articulates new grounds for relief. See
Mayle v. Felix, 545 U.S. 644, 657 (2005).
Petitions may only be amended if the new claims “relate back” to the original petition,
meaning they “arose out of the conduct, transaction, or occurrence set out—or attempted to be
set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). “An amended habeas petition . . .
does not relate back . . . when it asserts a new ground for relief supported by facts that differ in
both time and type from those the original pleading set forth.” Mayle, 545 U.S. at 650. “It is not
sufficient for a claim to simply come from the same ‘trial, conviction, or sentence.’” Ozsusamlar
v. United States, Nos. 10-CV-6655 (KMW)(HBP), 02-CR-763 (KMW), 2013 WL 4623648, at
*3 (S.D.N.Y. Aug. 29, 2013) (quoting Mayle, 545 U.S. at 662–64). “Rather, relation back is
permitted only insofar ‘as the original and amended petitions state claims that are tied to a
common core of operative facts.’” Id. (quoting Mayle, 545 U.S. at 664).
“Extensions of Section 2255’s limitations period are not granted as a matter of course; in
order to warrant an extension of the one-year limitations period prescribed in Section 2255, a
movant must show, among other things, circumstances that would justify an equitable toll.”
5
Pizzuti v. United States, No. 10 Civ. 199(LAP)(HBP), 2014 WL 4636521, at *19 (S.D.N.Y. Sept.
16, 2014) (citing Green v. United States, 260 F.3d 78, 82–83 (2d Cir. 2001)). “[A] district court
may grant an extension of time to file a motion pursuant to section 2255 only if (1) the moving
party requests the extension upon or after filing an actual section 2255 motion, and (2) ‘rare and
exceptional’ circumstances warrant equitably tolling the limitations period.” Green, 260 F.3d at
82–83. Because a federal court “lacks jurisdiction to consider timeliness of a § 2255 petition
until [it] is actually filed,” United States v. Leon, 203 F.3d 162, 164 (2d Cir. 2000), an extension
may be granted only after an “actual [§] 2255” petition is filed, Green, 260 F.3d at 82–83.
Untimely claims may be deemed timely in “rare and exceptional circumstances,” and
only if the petitioner can show that “extraordinary circumstances” warrant equitable tolling.
Martinez v. Superintendent of E. Corr. Facility, 806 F.3d 27, 31 (2d Cir. 2015) (internal
quotation marks omitted); see also Holland v. Florida, 560 U.S. 631, 649 (2010). “The
petitioner must establish that (a) ‘extraordinary circumstances’ prevented him from filing a
timely petition, and (b) he acted with ‘reasonable diligence’ during the period for which he now
seeks tolling.” Martinez, 806 F.3d at 31 (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.
2000)). However, “[a]s the Supreme Court has long recognized, the ‘exercise of a court’s equity
powers must be made on a case-by-case basis.’” Dillon v. Conway, 642 F.3d 358, 362 (2d Cir.
2011) (per curiam) (quoting Holland, 560 U.S. at 649–50). “The ‘flexibility’ inherent in
‘equitable procedure’ is necessary ‘to meet new situations that demand equitable intervention’
with the understanding that a court of equity must ‘exercise judgment in light of prior precedent,
but with awareness of the fact that specific circumstances, often hard to predict in advance, could
warrant special treatment in an appropriate case.’” Id. (quoting Holland, 560 U.S. at 650); see
also Baldayaque v. United States, 338 F.3d 145, 150 (2d Cir. 2003) (“Equitable relief such as
6
tolling may be ‘awarded in the court’s discretion only upon consideration of all the facts and
circumstances.’” (quoting Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 965 (2d Cir. 1981))).
Equitable tolling is infrequently granted. See Diaz v. United States, Nos. 11 CV
2248(HB), 03 CR 187(HB), 2012 WL 2864526, at *2 (S.D.N.Y. July 12, 2012) (collecting
cases). To satisfy the “reasonable diligence” prong, the petitioner must have “acted with
reasonable diligence throughout the period he seeks to toll.” Belot v. Burge, 490 F.3d 201, 205
(2d Cir. 2007). It requires more than “a garden variety claim of excusable neglect,” but does not
demand “maximum feasible diligence.” Holland, 560 U.S. at 651, 654 (internal quotation marks
omitted). “The term ‘extraordinary’ refers not to the uniqueness of a party’s circumstances, but
rather to the severity of the obstacle impeding compliance with a limitations period.” Harper v.
Ercole, 648 F.3d 132, 137 (2d Cir. 2011). For example, “medical conditions, whether physical
or psychiatric, can manifest extraordinary circumstances, depending on the facts presented.” Id.
Likewise, where prison officials confiscated a petitioner’s legal papers, such a confiscation
constitutes extraordinary circumstances as a matter of law. See Valverde v. Stinson, 224 F.3d
129, 133 (2d Cir. 2000). The extraordinary circumstances shown must also have caused
petitioner to miss the original filing deadline. See Harper, 648 F.3d at 137. Causation is lacking
where a petitioner has been “so neglectful in the preparation of his petition that even in the
absence of the extraordinary circumstances, a reasonable person in the petitioner’s situation
would have been unable to file in the time remaining within the limitations period.” Id. (quoting
Valverde, 224 F.3d at 136).
In Hizbullahankhamon v. Walker, the Second Circuit suggested that where “the
discretionary deprivation of a prisoner’s access to his own legal materials and law library
materials prevented a prisoner from petitioning for a writ of habeas corpus in federal court,”
7
equitable tolling may be required in certain circumstances “to avoid the constitutional difficulty
posed by such a denial of access to the federal courts.” 255 F.3d 65, 75 (2d Cir. 2001). Thus,
while prison lockdowns and other restrictions from the law library “do not by themselves qualify
as extraordinary circumstances,” Amante v. Walker, 268 F. Supp. 2d 154, 158 (E.D.N.Y. 2003),
they may qualify if they create a sufficiently severe obstacle “for the prisoner endeavoring to
comply with AEDPA’s limitations period,” Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008).
Application
1. The Supplemental § 2255 Petition
The Government argues that Gonzalez is not entitled to equitable tolling to merit the
extension granted by Judge Scheindlin, and that the period of lockdown—between July and
September and again from October 12 to November 1—was merely an inconvenience attendant
to prison life that does not rise to the level of “extraordinary circumstances.” (Gov’t Mem. 16–
18.) 1 I disagree. As an initial matter, the Government appears to be requesting that I reconsider
Judge Scheindlin’s prior decision to grant Gonzalez extensions of time. I find that the
Government has not met its burden for reconsideration. In any event, Judge Scheindlin already
granted Gonzalez permission to file the Supplemental § 2255 Petition—albeit without
elaborating on her reasons for doing so—and there is no reason for me to believe that she did not
already consider the equities at issue. Nor did she grant the extension without jurisdiction, since
Gonzalez’s “actual § 2255 petition” had already been filed. See Leon, 203 F.3d at 163–64.
I also find that equitable tolling is warranted under the circumstances. Although the
Government is correct that “the usual problems inherent in being incarcerated do not justify
1
“Gov’t Mem.” refers to the Memorandum of Law of the United States of America Opposing Freddie Gonzalez’s
“Supplemental Issue to Petitioners § 2255” and “Relation Back Amendment” as Untimely, filed July 7, 2016.
(Crim. Doc. 93.)
8
equitable tolling,” Baldayaque, 338 F.3d at 145, whether circumstances are “extraordinary” is
measured not by “uniqueness,” but by “the severity of the obstacle impeding compliance with a
limitations period,” Harper, 648 F.3d at 137. A prison lockdown is by no means unique, but its
imposition for an extended period of time late in the one year statutory period—here,
approximately four of the five months prior to the filing deadline—presents an obstacle to the
preparation of a § 2255 petition. Such obstacles may not create a significant impediment so as to
excuse the filing of an initial petition altogether, but are compelling enough to excuse some
incompleteness and deficiencies in an initial filing, and warrant allowing the filing of
supplementary papers. See Diaz, 515 F.3d at 154 (concluding that prison lockdowns and other
restrictions from the law library may, in certain circumstances, create a sufficiently severe
obstacle for a prisoner endeavoring to comply with AEDPA).
Here, a month prior to the November 10 deadline, Gonzalez filed two requests for an
extension describing his complete lack of access to the law library from July to September, and
again beginning October 8. After not receiving a response from the court, Gonzalez filed his
timely 79-page typewritten Initial § 2255 Petition, which raises twelve grounds for relief, and
provides objective evidence that Gonzalez had been diligently working on his Petition in the
months prior to the prison lockdown. After this filing, Gonzalez submitted another letter on
November 25, requesting to amend his Initial § 2255 Petition because it “was not completely
developed as regards all of the issues that [he] seeks to raise,” and that the prison “ha[d] been the
subject of multiple security-premised lockdowns that began on July 8, 2015 and . . . end[ed] on
November 1, 2015.” (Crim. Doc. 85.) These circumstances demonstrate Gonzalez’s reasonable
diligence in filing his Initial § 2255 Petition, and suggest that, but for the extensive lockdowns,
Gonzalez’s petition would have been complete. See Belot, 490 F.3d at 207 (“‘A petitioner
9
should not be faulted for failing to file early or to take other extraordinary precautions early in
the limitations period against what are, by definition, rare and exceptional circumstances that
occur later in that period.’ We understand this to mean that the petitioner was not ineligible, as a
matter of law, for equitable tolling because the petitioner waited until late in the limitations
period.” (emphasis omitted) (quoting Valverde, 224 F.3d at 136)).
I also find that equitable tolling is appropriate for the time between January 8, 2016 (45
days from the date of the order granting Gonzalez an extension) and January 13, 2016 (the date
Gonzalez executed the Supplemental § 2255 Petition). This short period should likewise be
excused because the prison was again on lockdown, and because there appeared to be some
confusion as to when exactly Gonzalez’s supplementary submission was due; instead of
specifying a date, the deadline was 45 days from the date of the order. (See Civ. Doc. 9 (“I
would like to ask, to this Honorable Court, how many days, I have lef[t] to submit the rest of the
issues. Also, I want to let this Court know, that this institution is on lockdown again[.] Please:
respectfully, I want to ask to this Court if you[] can give me another extension of time[.] Please:
I need some time, to . . . finish my 2255.”).) Here again, Gonzalez exhibited due diligence by
timely requesting an extension to “submit the remaining issues” on the basis of lack of access to
the prison law library. See Nelson v. United States, 380 F. Supp. 2d 100, 104 (N.D.N.Y. 2005)
(“Because he filed within the period extended to him and submitted his motion for an extension
before the original deadline expired, [Petitioner] exhibited reasonable diligence within the period
of equitable tolling now under consideration.”).
2. The Relation Back Amendment
A comparison of the claims raised in the Relation Back Amendment with those contained
in the Initial § 2255 Petition or the Supplemental § 2255 Petition demonstrates that the claims in
10
the Relation Back Amendment do not relate back to either of the earlier filings.
Gonzalez’s Initial § 2255 Petition raises the following issues:
•
The District Court and Second Circuit erred in improperly granting
continuances in violation of the Speedy Trial Act and his Sixth Amendment
right to a Speedy Trial, (Crim. Doc. 82, at 27–37);
•
The evidence was insufficient to support a conviction under 21 U.S.C.
§ 848(e)(1)(A), (Crim. Doc. 82, at 37–45);
•
The prosecution elicited perjured grand jury testimony, (Crim. Doc. 82, at 45;
Crim. Doc. 82-1, at 1);
•
The prosecution elicited perjured trial testimony, (Crim. Doc. 82-1, at 1–3);
•
Gonzalez was prejudiced by being detained in the same bull pen as witnesses
during the trial, (Crim. Doc. 82-1, at 3–4);
•
Gonzalez’s counsel failed to properly advise him of his right to testify at trial,
(Crim. Doc. 82-1, at 5–11);
•
Gonzalez’s counsel failed to properly advise him of his right to testify at the
suppression hearing, (Crim. Doc. 82-1, at 12–18);
•
Gonzalez’s counsel failed to adequately challenge the case against him, (Crim.
Doc. 82-1, at 18–20);
•
Gonzalez’s conviction is in violation of the Due Process Clause because it is
based on conflicting prosecution theories and inconsistent witness testimony,
(Crim. Doc. 82-1, at 20–28);
•
The District Court and Second Circuit lacked subject matter jurisdiction,
(Crim. Doc. 82-1, at 28–34);
•
The judges who presided over his case on the District Court and Second
Circuit were not authorized by Article III, (Crim. Doc. 82-1, at 35–37); and
•
Gonzalez’s counsel’s cumulative errors—namely the errors outlined in the
points above—rendered him ineffective, (Crim. Doc. 82-1, at 37–44).
His Supplemental § 2255 Petition adds the following:
•
Detective Braccini committed perjury before the grand jury, (Crim. Doc. 86,
at 2–7);
11
•
Gonzalez’s counsel failed to hire an expert witness to cross-examine the
prosecution’s ballistics expert, (Crim. Doc 86, at 7–10);
•
The prosecution failed to turn over Brady and 3500 material, (Crim. Doc. 86,
at 10–14);
•
Gonzalez’s counsel failed to adequately cross-examine the prosecution’s
medical examiner witness, (Crim. Doc. 86, at 14–15);
•
Gonzalez’s counsel failed to adequately prepare for the cross-examination of
Detective Fortune, (Crim. Doc. 86, at 15–19); and
•
Gonzalez’s counsel failed to show him 3500 material prior to trial, (Crim.
Doc. 86, at 19–21).
In his Relation Back Amendment, Gonzalez appears to raise two additional grounds for
relief: first, that his trial and appellate counsel were ineffective for failing to argue that 21
U.S.C. § 848(e)(1)(A) applies only to substantive drug offenses punishable under § 841(b)(1)(A),
and not drug conspiracies so punishable, (Crim. Doc. 92, at 2–6), and second, that his trial and
appellate counsel were ineffective for failing to challenge the jury instructions regarding the
nexus between the drug conspiracy and the murders, (id. at 6–16).
Neither of these arguments relate back to the claims brought in his Initial § 2255 Petition
or Supplemental § 2255 Petition. While all three arguments raise the issue of Gonzalez’s trial
counsel being ineffective, “it is not sufficient for an untimely amendment merely to assert the
same general type of legal claim as in the original § 2255 motion.” Ozsusamlar, 2013 WL
4623648, at *4 (quoting Veal v. United States, No. 01 Civ. 8033(SCR), 2007 WL 3146925, at *4
(S.D.N.Y. Oct. 9, 2007)). Because these arguments involve entirely new questions of statutory
interpretation, and differ in “both time and type” from the earlier claims, relation back is not
permitted. See Mayle, 545 U.S. at 657.
12
Conclusion
For the foregoing reasons, Gonzalez’s Supplemental § 2255 Petition, (Crim. Doc. 86), is
accepted as timely. Gonzalez’s Relation Back Amendment, (Crim. Doc. 92), is denied as
untimely. Pursuant to my prior order, (Crim. Dkt. Entry July 8, 2016), the Government’s
substantive response is due forty-five (45) days from the date of this Opinion & Order. The
Government should address Gonzalez’s motions for discovery, (Crim. Docs. 97, 98, 101), in its
substantive response. The merits briefing will be referred to a magistrate judge for a Report &
Recommendation.
The Clerk of Court is respectfully directed to terminate the pending motions, (Crim.
Docs. 85, 87; Civ. Docs. 6, 9), and mail a copy of this order to the pro se Petitioner at his most
recent address.
SO ORDERED.
Dated: October 17, 2018
New York, New York
______________________
Vernon S. Broderick
United States District Judge
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?