Bermudez v. United States of America

Filing 25

ORDER: For the foregoing reasons, the Court adopts the R&R in its entirety, and Mr. Bermudez's § 2255 motion [dkt. no. 1 in 16-CV-5356; dkt. no 62 in 04-CR-685] is DENIED. Finding that Mr. Bermudez's has not made a substantial showing of a denial of a constitutional right, no certificate of appealability will be granted. See 28 U.S.C. § 2253(c). The Court certifies that any appeal from this Order would not be taken in good faith. See id. § 1915(a)(3); Cop pedge v. United States, 369 U.S. 438, 444 45 (1962). The Clerk of the Court is directed to (1) mark this action closed and all pending motions denied as moot and (2) mail a copy of this order to Mr. Bermudez. SO ORDERED. (Signed by Judge Loretta A. Preska on 12/11/2020) (va) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RICHIE BERMUDEZ,
16-CV-5356 (LAP)(DF)

Plaintiff,

04-CR-685 (LAP)

-against-

ORDER

UNITED STATES OF AMERICA,
Defendant.

LORETTA A. PRESKA, SENIOR UNITED STATES DISTRICT JUDGE:
Before the Court is Petitioner Richie Bermudez’s June 23,
2016, motion to vacate, set aside, or correct his sentence under
28 U.S.C. § 2255.
CR-685.)

(Dkt. no. 1 in 16-CV-5356; dkt. no 62 in 04-

Magistrate Judge Debra Freeman has issued a Report and

Recommendation (“R&R”) recommending that the motion be denied.
(Dkt. no. 20 in 16-CV-5356; dkt. no 75 in 04-CR-685.)

For the

reasons set forth below, the R&R is adopted in its entirety, and
Mr. Bermudez’s motion is DENIED.
I. Background
The Court assumes the parties’ familiarity with the facts
of the case--especially following Judge Freeman’s R&R--and it
will summarize only the facts relevant to the instant motion
here.

On May 2, 2006, a jury convicted Petitioner of one count

of being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1).

(Dkt. no. 40 in 04-CR-685 at 1.)

On

October 3, 2006, the Court sentenced Mr. Bermudez to a term of
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70 months’ imprisonment to be followed by three years of
supervised release.

(Id. at 2-3.)

On June 17, 2008, the Court

of Appeals affirmed Petitioner’s conviction and sentence.

See

United States v. Bermudez, 529 F.3d 158, 165 (2d Cir. 2008).
Petitioner thereafter petitioned for a writ of certiorari, which
the Supreme Court denied on January 12, 2009, rendering his 2006
conviction final.

See Bermudez v. United States, 129 S. Ct. 956

(2009).
On April 24, 2009, the Court received a letter from
Petitioner entitled “Motion for New Trial under 28 U.S.C. § 2255
and Request for Appointment of Counsel.”
04-CR-685).

(See Dkt. no. 50 in

The Court observed that, although the letter

referenced § 2255 in its title, Mr. Bermudez “ma[de] no further
reference to that statute, and ma[de] no attempt to satisfy the
legal standard for such relief.”
1.)

(Dkt. no. 49 in 04-CR-685 at

Based on that, the Court elected to construe the letter as

a motion for a new trial under Federal Rule of Criminal
Procedure 33, and the Court denied the motion on May 5, 2009.
(Id. at 2.)

The Court did remind Petitioner, however, of

§ 2255’s one-year limitations period.

(Id. at 1.)

Petitioner filed the instant petition, at the earliest, by
June 23, 2016, seeking to set aside his 2006 conviction.
no. 1 in 16-CV-5356).

(Dkt.

The Government opposed the petition.

(Dkt. no. 17 in 16-CV-5356.)

On October 24, 2016, the Court
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referred the petition to Magistrate Judge Freeman.
in 16-CV-5356.)

(Dkt. no. 8

On March 27, 2020, Judge Freeman filed an R&R,

in which she recommended denying Petitioner’s motion. (Dkt. no.
20 in 16-CV-5356.)
September 11, 2020.

Mr. Bermudez filed his objections on
(Dkt. no. 24 in 16-CV-5356 (“Objections”).)

II. Legal Standard
“A district court reviewing a magistrate judge’s report and
recommendation ‘may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.’”

Ricciardi v. Colvin, No. 15-CV-2715 (ADS) (AYS), 2017

WL 4011243, at *1 (E.D.N.Y. Sept. 12, 2017) (quoting 28 U.S.C.
§ 636(b)(1)).

Parties may then raise objections to the

magistrate judge’s report and recommendation “[w]ithin 14 days
after being served with a copy of the recommended disposition,”
unless the time period for objections is extended by court
order.

Id. (quoting FED. R. CIV. P. 72(b)(2) and citing 28 U.S.C.

§ 636(b)(1)).
“[T]he court must then review de novo any part of the R&R
that has been objected to.”

Smith v. Hulihan, No. 11-CV-2948

(HB), 2012 WL 4928904, at *1 (S.D.N.Y. Oct. 17, 2012) (citing 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2)-(3)).

“As to those

portions that neither party objects to, the court may review for
clear error.”

Id. (citing Gomez v. Brown, 655 F. Supp. 2d

332, 341 (S.D.N.Y. 2009)).
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III. Discussion
Pursuant to the R&R, the Court finds the Petitioner’s
motion is untimely.

Section 2255 is governed by a one-year

statute of limitations, which “run[s] from the latest of,” inter
alia, “the date on which the judgment of conviction becomes
final” or “the date on which the facts supporting the claim or
claims presented could have been discovered through the exercise
of due diligence.”

28 U.S.C. § 2255(f).

Mr. Bermudez does not

raise any legal error regarding his 2013 guilty plea or his 2013
or 2015 sentences.

Petitioner challenges only his 2006

conviction, which became final on January 12, 2009, meaning that
his time to file the motion expired on January 12, 2010.

See

Clay v. United States, 537 U.S. 522, 527 (2003) (holding that
convictions become final on the date the Supreme Court denies a
petition for a writ of certiorari).

However, Mr. Bermudez did

not file the instant petition until June 23, 2016, more than six
years after the deadline.
Petitioner formally objected on September 10, 2020, to the
R&R, claiming equitable tolling is appropriate due to Mr.
Bermudez’s diminished mental capacity. (Objections at 2).

“To

equitably toll the one-year limitations period, a petitioner
must show that extraordinary circumstances prevented him from
filing his petition on time, and he must have acted with
reasonable diligence throughout the period he seeks to toll.”
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Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001)
(quotation marks omitted).

The Court of Appeals has found only

a limited number of circumstances that could merit equitable
tolling, “such as where an attorney’s conduct is so outrageous
and incompetent that it is truly extraordinary and where prison
officials intentionally obstruct a petitioner’s ability to file
his petition by confiscating his legal papers.”

Doe v. Menefee,

391 F.3d 147, 159 (2d Cir. 2004) (citation omitted).

Mr.

Bermudez, however, has provided no evidence to suggest that his
various claimed impairments rendered him incapable of filing
within the limitations period.

Therefore, pursuant to the R&R,

this Court cannot find that Petitioner’s alleged physical or
mental condition was sufficient for equitable tolling.

See

Gonzales-Ramos v. United States, Nos. 05 Civ. 3974 & 99 Cr. 1112
(LAP), 2007 WL 1288634, at *7 (S.D.N.Y. 2007) (Preska, J.)
(observing that, when evaluating whether a petitioner exercised
due diligence, “courts should not consider such subjective
factors as the petitioner’s intelligence, education, language
skills, or mental stability”).
Petitioner also suggests that his originally proceeding pro
se may entitle him to equitable tolling. (Objections at 2.)
“[P]ro se status,” however, “does not in itself constitute an
extraordinary circumstance meriting tolling.”
175.

Doe, 391 F.3d at

Accordingly, the Court rejects this argument.
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Finally, the Petition suggests that Mr. Bermudez is
actually innocent of his crimes of conviction.
3.)

(Objections at

“[A] credible and compelling showing of actual innocence

. . . warrants an equitable exception to AEDPA’s limitation
period.”

Rivas v. Fischer, 687 F.3d 514, 518 (2d Cir. 2012).

To meet that standard, a petition must offer “new reliable
evidence--whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.”
324 (1995).

Schlup v. Delo, 513 U.S. 298,

Mr. Bermudez’s “evidence”--which consists only of

vague and conclusory statements that he is innocent--simply does
not fit the bill.

Accordingly, equitable tolling is not

warranted on actual innocence grounds.
In sum, Magistrate Judge Freeman properly concluded that
Mr. Bermudez’s petition is untimely.

The Court has considered

the remaining objections to the R&R, but none can cure that
glaring timeliness malady.

Consequently, Mr. Bermudez’s § 2255

petition must be denied.
III. Conclusion
For the foregoing reasons, the Court adopts the R&R in its
entirety, and Mr. Bermudez’s § 2255 motion [dkt. no. 1 in 16-CV5356; dkt. no 62 in 04-CR-685] is DENIED.

Finding that Mr.

Bermudez’s has not made a substantial showing of a denial of a
constitutional right, no certificate of appealability will be
6

granted.

See 28 U.S.C. § 2253(c).

The Court certifies that any

appeal from this Order would not be taken in good faith.

See

id. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 44445 (1962).

The Clerk of the Court is directed to (1) mark this

action closed and all pending motions denied as moot and (2)
mail a copy of this order to Mr. Bermudez.
SO ORDERED.
Dated:

December 11, 2020
New York, New York

_____________________________
LORETTA A. PRESKA
Senior U.S. District Judge

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