Alvarez v. United States of America

Filing 24

ORDER: The motion is DENIED for the reasons set forth below. Petitioner contends that (i) "[i]n a supplemental motion to the initial [Section 2255] motion filed, Petitioner argued that [trial] counsel additionally failed to offer any advice as to whether Petitioner should accept the plea offer," and (ii) the Court "did not expressly decide the claim regarding counsel's failure to offer any advice as to whether the plea should be accepted." First, the Court is not aware of any such "supplemental motion," and the ECF docket does not reflect that any such supplemental motion was filed. In any event, what petitioner is now claiming is directly contrary to what he repeatedly argued in his 2255 motion; namel y, that his attorney did give him advice as to whether to accept the plea offer and indeed specifically advised him not to accept the plea offer. (See Motion Under 28 U.S.C. § 2255 at 5 (Doc. #1); Petitioner's Brief and Memorandum of Law in Support at 14-15 (Doc. #2); Petitioner's Reply Brief at 9 (Doc. #19)). In its Opinion and Order, the Court concluded that trial counsel was not constitutionally ineffective both because the Court accepted as true counsel's sworn statem ent that he discussed the plea offer with petitioner and petitioner rejected the offer out of hand, and because petitioner did not establish prejudice. (Doc. #20 at 11-13). Nothing in petitioner's recent letter gives the Court any reason to re-v isit its prior ruling. Moreover, the instant motion is untimely. Rule 60(c) requires that a Rule 60(b)(6) motion be made within a reasonable time. This Court's Opinion and Order was entered on the docket on January 15, 2019, more than a year pri or to when petitioner submitted the instant letter-motion on January 16, 2020. Petitioner acknowledges that the information in the letter-motion was available to him prior to the issuance of the Opinion and Order, and thus was also available to him after the issuance of the Opinion and Order. Yet, petitioner waited until after the Second Circuit, on January 2, 2020, denied his motion for a certificate of appealability and dismissed his appeal because he had not made. a substantial showing of th e denial of a constitutional right (Alvarez v. United States, Dkt. No. 19-413 (Doc. #34)), to submit the instant letter-motion. In short, the letter-motion was not made within a reasonable time after the entry of this Court's Opinion and Order . Instead, it was apparently made only in response to the Second Circuit's recent action as a desperate, last-ditch attempt to set aside petitioner's conviction and sentence. Petitioner was not denied effective assistance of counsel, his 2 255 petition was properly denied, and his Rule 60(b) motion is both untimely and without merit. Petitioner's motion pursuant to Fed. R. Civ. P. 60(b) is DENIED. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from th is 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). The Clerk is instructed to mail a copy of this Order to petitioner at the following address: Nicholas Alvarez, Reg. No. 64636-054, FCI Gilmer, P.O. Box 6000, Glenville, WV 26351. (Signed by Judge Vincent L. Briccetti on 1/21/2020) Copies Mailed By Chambers. (mml) Transmission to Docket Assistant Clerk for processing.