Mandal v. USA

Filing 4

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION THAT PETITIONER'S 28 U.S.C. § 2255 PETITION BE DENIED: Denying 1 Motion to Vacate and Adopting 3 Report and Recommendations re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Amiya K. Mandal ; Clerk directed to enter Judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 9/30/14. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
AMIYA K. MANDAL,
Petitioner,
v.

Civil Action No. 5:13CV87
(Criminal Action No. 5:09CR39)
(STAMP)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION THAT PETITIONER’S
28 U.S.C. § 2255 PETITION BE DENIED
I.

Background

On June 11, 2012, the petitioner, Amiya K. Mandal, filed a
motion to vacate, set aside, or correct his sentence.

On July 8,

2010, the petitioner was convicted of interstate travel to engage
in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b).
The petitioner was sentenced to 37 months imprisonment and lifetime
supervised release upon. The petitioner’s final judgment order was
filed on July 22, 2010.

The petitioner did not file a direct

appeal.
Almost four years later, the petitioner filed this federal
habeas motion pursuant to 28 U.S.C. § 2255, contending the legality
of

his

life

term

of

supervised

release

because

he

received

ineffective assistance of counsel during the plea negotiation
stage.

The petitioner contends that he entered the plea agreement

believing

that

he

would

be

deported

and

the

life

term

of

supervision would not matter after he pleaded guilty. This belief,
the petitioner asserts, was based on the advice given to him by
counsel.

However, the petitioner’s deportation proceedings were

terminated in 2012 and the petitioner asserts that the termination
of those proceedings provided new evidence pursuant to 28 U.S.C.
§ 2255(f)(4).

Thus, the petitioner argues that he is entitled to

a reduction, modification, or complete vacation of his lifetime
term of supervised release.
In accordance with Local Rule of Prisoner Litigation Procedure
2, this case was referred to United States Magistrate James E.
Seibert for initial review and report and recommendation.

The

magistrate judge then directed the government to respond.
In response, the government contends that the petition is
untimely as it was not filed by July 22, 2011.

Further, even if

the termination of deportation proceedings is considered, the
government argues that the issuance of a legal decision is not a
“fact” that can be used pursuant to § 2255(f)(4).

Additionally,

although the government argues he did not assert it, the government
contends that equitable tolling is not applicable as the petitioner
has made no claim that there was an impediment to his filing of the
§ 2255 petition.

As to the ineffective assistance claim, the

government contends that the petitioner could have been facing a
mandatory minimum ten year sentence based on the enticement charge
in the indictment and up to a 30 year sentence for the travel

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charge.

Thus, the government contends that it gave up those

opportunities in exchange for the lifetime supervised release
provision.

Further, the government argues that this does not fall

under Padilla v. Kentucky, 559 U.S. 356 (2010), because defense
counsel

correctly

informed

the

petitioner

of

the

chance

of

deportation.
The petitioner replied that he is entitled to tolling of the
one year bar as the termination of deportation proceedings provides
a new “fact” which triggers § 2255(f)(4).

Further, the petitioner

argues that equitable tolling is applicable as the lifetime term of
supervised

release

is

a

gross

injustice.

Additionally,

the

petitioner asserts that Padilla is applicable as the petitioner was
misled into believing that there was a low likelihood he would
receive a lifetime term of supervised release because he would be
deported.

Thus, the petitioner contends he did not receive the

benefit of the bargain under the plea agreement.
In

his

report

and

recommendation,

the

magistrate

judge

recommended that this Court grant the government’s motion to
dismiss and dismiss the petition.

The magistrate judge found that

the petition was untimely because the issuance of a legal decision
is not a “fact” pursuant to § 2255(f)(4).

Further, the magistrate

judge found that the petitioner’s ineffective assistance claim has
no merit.

The magistrate judge opined that because of the answers

given by the petitioner during his plea hearing and a letter that

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was sent to him by defense counsel after his favorable deportation
termination, the petitioner received the benefit of the bargain
when he entered the plea agreement.

Thus, the magistrate judge

recommended that this action be dismissed.

The magistrate judge

informed the parties that if they objected to any portion of the
report and recommendation, they were required to file written
objections within 14 days after being served with copies of the
report.

Neither party filed objections.
II.

Discussion

As there were no objections filed to the magistrate judge’s
recommendation, the findings and recommendation will be upheld
unless they are “clearly erroneous or contrary to law.”

28 U.S.C.

§ 636(b)(1)(A).
A.

Timeliness
In its response to the underlying petition, the government

argues that the petitioner failed to file within the limitations
period afforded by § 2255.

The limitation period for a § 2255

petition can begin to run from the last of several occurrences. 28
U.S.C. § 2255.

Of note in this case is that the limitation period

“shall run from . . . [t]he date on which the judgment of
conviction becomes final . . . .”

28 U.S.C. § 2255.

The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) established a one-year limitation period within which to
file any federal habeas corpus motion.

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28 U.S.C. § 2255.

The

AEDPA provides four options from which the limitation period shall
run, depending on which event occurs last:
1.
The date on which the judgment of conviction becomes
final;
2.
The date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if
the movant was prevented from making a motion by such
governmental action;
3.
The date on which the right was initially recognized
by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
4.
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).

Under the first event, if there is no direct

appeal, a conviction is final 14 days after the judgment and
commitment order is entered. See Fed. R. App. P. 4(b)(1)(A)(I) and
4(b)(6).

In this case, the petitioner did not file a direct

appeal, thus, his conviction became final on July 22, 2010 and he
was required to file a petition by July 22, 2011, unless one of the
other elements applies.
Under the second event, equitable tolling is available only in
“those rare instances where – due to circumstances external to the
party’s own conduct – it would be unconscionable to enforce the
limitation period against the party and gross injustice would
result.”

United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2002)

(citing Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc)
(quotation marks omitted), cert. denied, 541 U.S. 905 (2004)).
Thus, the petitioner must show that three elements were present to
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allow equitable tolling: (1) extraordinary circumstances, (2)
beyond the petitioner’s control or external to his own conduct,
(3) that prevented him from filing in a timely manner.

Id.

The

petitioner has failed to show any of the three elements that must
be present.

The petitioner has merely stated that it would be a

gross injustice for this Court to allow the petitioner to have a
lifetime term of supervised release.

This is not enough, however,

and this Court finds that the magistrate judge’s finding that the
petitioner has not shown that equitable tolling applies was not
clearly erroneous or contrary to law.
The third element is not at issue in this case.

However,

under the fourth element, a “fact” does not encompass the issuance
of

a

legal

decision

which

does

not

change

any

part

of

the

petitioner’s own criminal history, such as the termination of a
deportation proceeding.

See Lo v. Endicott, 506 F.36 572, 575-76

(7th Cir. 2007); E.J.R.E. v. United States, 453 F.3d 1094, 1097-98
(8th Cir. 2006); Shannon v. Newland, 410 F.3d 1083, 1089 (9th Cir.
2005).

Thus, the fourth element is also inapplicable to the

petitioner and the magistrate judge’s finding that his petition is
untimely was not clearly erroneous or contrary to law.
B.

Ineffective Assistance of Counsel
Further, even if the petitioner was not untimely, this Court

finds that the petitioner has failed to satisfy the two-pronged
analysis provided by Strickland v. Washington, 466 U.S. 668 (1984),

6

to establish a right to an amended sentence or new trial based upon
ineffective assistance of counsel.

Id. at 687 (providing that

defendant must first show counsel’s performance fell below an
objective standard and next show that the defendant was prejudiced
by the counsel’s performance).

The petitioner was asked at his

plea hearing whether he felt counsel’s performance was effective,
the petitioner answered in the affirmative.

Further, as the

magistrate judge noted, the petitioner received a letter from
defense counsel which spelled out the favorable plea agreement that
the petitioner received in exchange for the lifetime term of
supervised release.

Accordingly, the magistrate judge’s finding

that the petitioner failed to show that the Strickland standard had
been met was not in clear error.
III.

Conclusion

Accordingly, after a review for clear error, the report and
recommendation of the magistrate judge is AFFIRMED and ADOPTED in
its entirety.

The petitioner’s motion for a writ of habeas corpus

pursuant to 28 U.S.C. § 2255 is DENIED.

It is further ORDERED that

this case be DISMISSED WITH PREJUDICE and STRICKEN from the active
docket of this Court.
Finally, this Court finds that the petitioner was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.

Because the petitioner has failed to

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object, he has waived his right to seek appellate review of this
matter.

See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.

1985).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion to counsel of record herein.

Pursuant to Federal Rule of

Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:

September 30, 2014

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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