DISTRICT OF MAINE
UNITED STATES OF AMERICA, )
)
vs. ) DOCKET NO. CR-95-59 -P-H
)
Paul J. Cavallaro
)
REPLY OF PAUL CAVALLARO
The Government's Response of June 18, 1999, (Gov.) sets forth three
grounds objecting to Cavallaro's § 2255 Motion, all of which should
be rejected. The Government claims:
Paul Cavallaro was sentenced on June 2, 1997. That morning he reached
an Agreement with the government addressing a number of unresolved sentencing
issues. (FN1) (Docket entry 57). Paragraph five
of that Agreement states:
"Defendant waives any right to appeal the conviction and sentence and
to file for writ of habeas corpus, 28 U.S.C. § 2241
et sec,
seeking post conviction relief, except that if either of defendant's
1991 Massachusetts felony drug convictions is vacated, defendant may file
for a writ of habeas corpus on that basis alone, consistent with
the applicable provisions of 28 U.S.C. § 2255." (Emphasis added)
That is exactly what has occurred here. Cavallaro succeeded in having
his "1991 Massachusetts felony drug convictions" vacated and filed for
relief under 28 U.S.C. § 2255. Nothing in the Agreement changes the
applicable time periods, nor does the Agreement address enlargements or
tolling. The Agreement neither increases nor decreases Cavallaro's §2255
rights as applicable. It merely preserves them. Similarly, the Agreement
does not expand or restrict any defenses the Government might assert in
the event Cavallaro got the Massachusetts convictions vacated and filed
under §2255. There is nothing to the government's "Agreement" argument.
It is essentially a different way of framing their untimeliness argument.
The motion itself contains a certificate of service, certifying that
a copy of the motion was served upon the United States Attorney and providing
the correct address for the U.S. Attorney's office. The affidavit of AUSA
X. candidly admits in paragraph two, that she was on maternity leave during
June of 1998, the time when counsel filed the motion. In her absence there
is no way of knowing if a motion might have been misplaced within the office.
Putting aside Ms. X's affidavit and its contents, a written endorsement
of the motion was issued by the clerk's office on June 23, 1998. (Attached
Exhibit 1). That endorsement, which shows at the bottom it was mailed to
Ms. X., reiterates that,
"the motion for enlargement of time to file motion under Title 28 U.S.C. § 2255 until 30 days from the time he receives information which is finally determinative of the validity of his underlying conviction; no objection having been filed, motion granted per local rule 7(b)."
The government's "we didn't see it" argument does not address how their
office overlooked the June 23rd notification from the clerk.
If the government had an objection to the granting of the enlargement,
their failure to respond not only to the motion itself, but to the June
23, 1998 notification from the clerk's office, constitutes a waiver. (FN2)
Section
2255 provides that a defendant may seek relief within one year of, "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(4).
The
Massachusetts State convictions were vacated on March 9, 1999. The sole
basis for the present 2255 is vacation of the prior convictions which form
the career offender predicate offenses. The "facts" supporting the claim
are the state court's order. Until the state order entered there were no
facts which would support the 2255 claim. Due diligence was exercised.
The order entered March 9, 1999. State counsel received notice of the order
April 9, 1999. This 2255 was filed May 4, 1999. Less than 30 days after
state counsel got notice the convictions where vacated the present 2255
was filed. That is due diligence.
The government has claimed
that through the exercise of "due diligence" Cavallaro and state counsel
knew or should have known of the insufficient plea colloquy back in 1991.
AUSA X. argues that "Cavallaro got a good deal on the plea deal and wanted
the benefit of his bargain." She claims Cavallaro "sat" on this "technical
deficiency" until it "suited his purposes 9 years later". The government's
emotional pitch missed the point. The plain language of the statutes says
the "the facts supporting the claim or claims presented" 2255(4). The claim
presented is the fact that the state court predicate convictions have been
vacated. The claim in this federal case is not why the state convictions
where invalid nor how the were vacated. The Supreme Court has said that
is a matter for the state court to address, Custis v. United States,
511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed. .2d 517 (1994). The AUSA's wrath
at the state system is not relevant. The claim presented is the federal
claim only and the underlying facts and law which led to the vacation of
the state convictions are not the "facts" forming the basis for this claim.
(FN3) The "facts" are the state courts Order which was
acted on diligently.
Paul Cavallaro, like Lewis, suffers from flaws in an underlying conviction
which were overlooked by his then counsel. Any deficiencies in the underlying
convictions where unknown to Cavallaro until he received the mailing on
May 30, 1998 of the proposed motion and supporting affidavit. Finding of
Fact 10. Why counsel took so long is irrelevant. Section 2255 (4) does
not address the conduct of counsel. In the Lewis case, the exercise
of due diligence by Lewis' initial trial counsel, would have produced
evidence of the deficiency before the plea, taking the matter far outside
the one year limitation period. The district judge did not saddle Lewis
with knowledge that Lewis's deficient trial counsel had or should have
had. Similarly Paul Cavallaro should not be deprived of relief based on
knowledge a former attorney had or should have had. Cavallaro's §2255(4)
one year period should run at the earliest from the date that Cavallaro
knew, which is approximately May 30, 1998. The post conviction petition
was filed May 4, 1999, within the one year knowledge period allowed under
§ 2255 (4).
A. Government has Procedurally Waived Arguments on the Merits
Stifled on the jurisdictional argument, the government attempts to
litigate the underlying merits of whether or not the court should have
applied equitable tolling. The government's ability to litigate that issue
has been waived. Objecting to an enlargement or to equitable tolling may
have been a response which the Government could have pled back in June
of 1998, however, they did not. It is now too late for them to argue that
the court erred in exercising discretion. Once the government has acknowledged
that the court had the discretion to grant the enlargement, for instance
under the provisions of equitable tolling, there can be no "lack of jurisdiction"
argument. An argument by the government at this stage, that the court should
not have chosen to exercise jurisdiction which it had, is nothing more
than an un-preserved abuse of discretion argument. (FN6)
It is not a no-jurisdiction argument.
There are a specific set of rules governing § 2255 proceedings.
Rule 12 states:
"If no procedure is specifically prescribed by these rules, the district
court may proceed in any lawful manner not inconsistent with these rules,
or any applicable statute and may apply the Federal Rules of Criminal Procedure
or the Federal Rules of Civil Procedure, whichever it deems most appropriate,
to motions filed under these rules."see Rogers at note 3.
There are only twelve rules to the § 2255 rules, and none of
these deal with enlargements of time. Applying rule 45(b) of the Rules
of Criminal Procedure, Cavallaro's motion for enlargement was filed before
the expiration of the period originally prescribed, providing the court
with a procedural basis for having granted the motion to enlarge. Rule
6(b) of the Rules of Civil Procedure provides the court with the same authority.
Cavallaro's motion to enlarge was filed in a timely manner. The government
failed to object at the time of the motion and at the time the motion was
granted. The government has waived its object on the basis of timeliness.
Now, a year later, the government cannot assert that which it long ago
waived. U.S. v. Spector, 55 F.3d 22, 24 (1st Cir., 1995)
(statute of limitations is a waive-able affirmative defense, not a jurisdictional
bar); Acevedo-Ramos v. U.S., 961 F.2d 305, 307, 308-309 (1st
Cir. 1992) (waiver of statute of limitations defense does not require express
and knowing waiver.) The government's own untimely argument is too late.
B. The Facts Support Equitable
Tolling
From the outset, Cavallaro
had no knowledge that he was facing a potentially enhanced sentence as
a career offender. In fact, the §851 (a) (1) notice filed by the government
did not list two prior offenses from Massachusetts, but rather only one.
(Docket entry 25, dated January 18, 1996). The recommended decision finds
that the first time the Defendant and his then attorney, learned that the
Massachusetts convictions would be used to sentence him as a career offender,
was not until the receipt of the first revised presentence investigation
report, dated July 5, 1996. Finding of Fact #1. Cavallaro was charged by
a criminal complaint back on September 19, 1995. He was represented initially
by Attorney A., then by Attorney B., then by Attorney C, all well known
and competent members of the Maine Federal Criminal Defense Bar. Cavallaro
went to trial having no idea that he could be facing career offender enhancement
upon conviction. Upon receipt of the revised presentence report indicating
career offender status, Attorney C undertook to obtain evidence that "he
hoped would convince the court that the two Massachusetts convictions should
be treated as one under the sentencing guidelines, thereby excluding him
from the career offender status". Docket No. 46, Finding of Fact #2. A
second continuance was granted on the same grounds. Docket No. 53, Finding
of Fact #3. Specialized counsel in the form of Jerry Whittington was retained
to address this issue. Finding of Fact #4. Whittington turned out to be
a fraud who was not a lawyer, and who defrauded Cavallaro and his family
of over $8,700, providing no services. (FN7)
Finding of Fact #5. There was additional delay due to Whittington's involvement
of up to four months. Finding of Fact #5. For close to a year, from July
5, 1996, until late May, 1997, Cavallaro, received no effective assistance
in dealing with the career offender problem. An effort was made to hire
a specialist, Whittington, who turned out to be a fraud, not merely wasting
time, but also depriving Cavallaro of the only funds Cavallaro and his
family had for retaining counsel to deal with this particular problem.
This is highly unusual. At least in Maine, we rarely confront individuals
posing as attorneys who take significant retainers from clients only to
pocket them and disappear. Cavallaro was sentencing on June 2, 1997. He
promptly wrote to his former state court attorney sending letters dated
June 8th, July 3rd, and July 17th. Finding
of Fact #6. These letters were asking the state court attorney to check
into the possibility of vacating one or both of the Massachusetts convictions.
Finding of Fact #6.
Cavallaro knew his only
hope for a change in his career offender sentence was in vacating one or
both Massachusetts convictions. Sentencing Agreement, docket #57, para
5. What Cavallaro did not know was a legal or factual basis upon which
to predicate his state law claim. Deprived of finances due to Whittington's
fraud, Cavallaro's family was not able to send state attorney a retainer
until November 6, 1997. Under the principles of equitable tolling, the
time from June 2nd to November 10th, 1997 should
be excluded from determining the one year time period, as this was the
period of time that Whittington's fraud deprived Cavallaro of the ability
to promptly move forward. But for Whittington's fraud, Staples could have
been retained in June 1997. As of June, 1998, Magistrate Judge Cohen had
granted the Motion for Enlargement. A defendant is entitled to rely on
that enlargement as of the time it was granted under the Doctrine of Judicial
Reliance. Hollins v. Dept. of Corrections, 1999 WL 791444 (11th
Cir. 1999).(See footnote 7 Magistrate's Recommended Decision.) The
time from payment of the state court attorney's retainer in November, 1997
to filing of the state court motion to vacate on June 9, 1998, is under
eight months, and certainly well within the one year time period. A remedy
under equitable tolling would allow the court to exclude the time from
sentencing on June 2, 1997, through retention of the state court attorney
in November, 1997. Similarly the Court's granting of the Enlargement Motion
on June 21, 1998 should preclude from consideration any time after that
date. The one year time limit is easily met when looking solely at the
remaining time, November 1997 through June 1998. Under this unique set
of facts, by applying the Doctrine of Equitable Tolling the pending 2255
petition's time frame has been met.
"The short answer is that
Congress chose to predicate sentence enhancement on state action purely.
Surely, it is not for the federal court to read the statutory language,
'in accordance with the law of the jurisdiction in which the proceedings
were held' as permitting us to conclude that the Massachusetts lower court
decisions were wrongly decided." Peddiford at 202.
Cavallaro's predicate
offenses arise out of the same Massachusetts courts. The Peddiford
decision is controlling here.
The government then attempts
to distinguish Cavallaro's Career Offender sentence with Peddiford's
Armed Career Criminal Act (ACCA) sentence. No true distinction exists for
purposes of this motion. While the ACCA requires three predicate offenses,
the Career Offender enhancement requires only two. Under both statutes,
the predicate offenses can be state or federal court convictions. A sentencing
court's reliance on a conviction obtained by an unconstitutionally inadequate
plea colloquy constitutes reliance on "misinformation of a constitutional
magnitude," Peddiford v. United States, 1995 WL 464920 (D. Mass.
1995) *10 (unreported Peddiford district court case, relying on
United
States v. Tucker, 404 U.S. 443 (1972) (court granted relief in §2255
claim on the ground that petitioner's federal sentence was enhanced by
invalid prior state court convictions) Application of § 2255 relief
for a career offender was granted in United States v. Nichols, 30
F.3d 35 (5th Cir. 1994). It was also tacitly approved in the
unreported First Circuit case of United States v. Moretto, 116 F.3d
464, (1st Cir. 1997) Moretto succeeded in having a state
court set aside two prior state convictions, undermining his career offender
status. He petitioned under 28 U.S.C. § 2255 to set aside his original
sentence. The district court agreed and after further proceedings re-sentenced
Moretto. Moretto then appealed from the new sentence which
appeal was denied.
This issue was recently
addressed by the 9th Circuit in U.S. v. LaValle, 167
F.3d 1255, 1257 (9th Cir., February 12, 1999). LaValle had been
sentenced as a Career Offender based on a predicate Massachusetts conviction.
LaValle later succeeded in having that Massachusetts conviction vacated.
He then sought relief from his career offender federal sentence invoking
§ 2255. The District Court rejected LaValle's motion. The Circuit
reversed.
We adopt the position
of the First, Fourth, Fifth and Tenth Circuits and hold that a defendant
who successfully attacks a state conviction may seek review of any federal
sentence that was enhanced because of the prior state conviction.
(FN8) Because LaValle obtained the dismissal
of his Massachusetts conviction, the district court should have granted
LaValle's § 2255 motion. Just as the Supreme Court expressed "no opinion
on the appropriate disposition of . . . an application to reopen,"
Custis,
511 U.S. at 497, we express no opinion on an appropriate sentence for LaValle
once his sentence is reopened. Id.
The position of the government was rejected by the First Circuit
in Peddiford. The same position has been taken by four other Circuits.
The teachings of Custis apply equally to ACCA, Career Offender,
or any other sentence which was enhanced using an earlier conviction later
vacated. A vacated conviction is not a conviction and Paul Cavallaro has
the right to be resentenced based on his corrected criminal history record.
CONCLUSION None of the arguments advanced by the government are persuasive.
Paul Cavallaro received an enhanced sentence based on state court convictions
which have since been vacated. Use of a § 2255 motion is the appropriate
avenue for relief. Cavallaro's motion should be granted and his case set
for re-sentencing under the applicable federal sentencing guidelines.
DATE:
David Beneman
Attorney for Paul J. Cavallaro
Levenson, Vickerson & Beneman
P.O. Box 465
Portland, ME 04112-0465
Tel. (207) 775-5200
Fax. (207) 772-1829
E-mail beneman@maine.rr.com
1. This was not a "plea" agreement or a "cooperation"
agreement.
2. Consent may be inferred from silence where a
party had the opportunity to object and failed to do so, U.S. v. DiPietro,
936 F.2d 6, 9-10 (1st Cir. 1991)(discussing mistrials.) While
failure to object binds the government, defendant recognizes that subject
matter jurisdiction can not be obtained by waiver.
3. See George L. Jackson v. United States,
1998 WL 360890 (N.D.N.Y.)(Unpublished Opinion). Jackson alleged a sentencing
disparity between his sentence and that of a co-defendant who fled and
was not sentenced until considerably after Jackson. The court held the
limitations period does not begin running until the event occurred giving
rise to the new facts, specifically the sentencing of the codefendant.
4. In Fraser v. United States, 47 F.Supp
629 (D.Md. 1999), the defendant himself knew since 1981 that his civil
right had been restored. Fraiser's claimed lack of understanding as to
the significance of a fact known to him is readily distinguishable. Faiser
failed to inform trial counsel of facts know to him. Cavallaro was unaware
of the facts.
5. Libby v. Magnusson, 1999 WL 315789, n2
(1st Cir. May 24, 1999)
6. See Fisher v, Johnson, 1999 WL 284554,
*2 (5th Cir. May 24, 1999) (finding judicial discretion for
equitable tolling of the one-year period); Barrs v. Sullivan, 906
F.2d 120, 122 (5th Cir. 1990)( A district courts decision to invoke equitable
tolling is left to the district court's discretion).
7. Mr. Whittington has been or is being prosecuted
in Louisiana
8. The First, Fourth, Fifth, Tenth, and Eleventh
Circuits have explicitly adopted the position set forth in the Custisdicta
and now allow a defendant who has successfully attacked a state conviction
to reopen his federal sentence. See United States v. Pettiford,
101 F.3d 199, 200-202 (1st Cir. 1996); United States v. Bacon, 94
F.3d 158, 161 n.3 (4th Cir. 1996); United States v. Cox, 83 F.3d
336, 339-340 (10th Cir. 1996); United States v. Nichols, 30 F.3d
35, 36 (5th Cir. 1994) (Government conceded Custis allowed defendant
to reopen sentencing); U.S. v. Walker, __F.3d__ (11th
Cir. Dec. 17, 1999) No. 98-9244.
The
Defendant was unaware of the infirmity of the underlying convictions until
he received the proposed affidavit and proposed motion of his state court
attorney, which was sent to him on May 30, 1998. Finding of Fact #10. At
issue is the date upon which the Defendant should have known of the underlying
infirmity, not the date an attorney, should have known. (FN4)
In this regard the decision in Lewis v. United States, 985 F.Supp.
654 (S.D. W.Va. 1997) is helpful. Lewis pled guilty to a single
count of mail fraud based conduct which in fact did not violate the mail
fraud statute. (The document involved was transmitted via common carrier
at a time when mail fraud only applied to the United States mails. Lewis
at 656.) Lewis was sentenced on January 30, 1996. Approximately seven months
after entering his plea, Lewis learned of these deficiencies. Id.
Lewis promptly contacted an attorney, Riccardi (not the attorney
on his case), who informed Lewis that his conviction appeared defective.
Id. Lewis provided this information to his then attorney, Ciccarello,
who discussed this with the United States Attorney's Office. Following
some period of time, Attorney Ciccarello referred Lewis to his petitioning
attorney, DiPiero, who had further discussions with the government. DiPiero
on Lewis's behalf filed a § 2255 motion on June 19, 1997, seventeen
months after sentencing and approximately eight months after Lewis first
discovered the basis for the motion. Id. 656. The Magistrate Judge
entered a recommended decision concluding that Lewis's 2255 motion was
barred by the one year limitations of § 2255. Lewis responded in his
objections by asserting § 2255 (4), a contention which the Magistrate
Judge apparently failed to address. Lewis at 657. On review, the
district court found that §2255 (4) was applicable. The court concluded
that the one year limitation period began to run from September, 1996,
when Lewis himself first learned that his conviction was flawed. The court
found that Lewis had filed his motion well within the one year from the
start date established and was not time barred. Importantly, the court
found that Lewis was unaware of the basis for his claim, in part, due to
his counsel's lack of attention to the proof elements. Lewis at
657. The court did not impute to Lewis that which trial counsel should
have known in the exercise of due diligence.
Perhaps sensing the difficulties
with their argument, the government also claims that the court was without
jurisdiction to grant the enlargement motion. This avenue also fails, precisely
for the reasons provided within the government's own memorandum. The appellate
courts which have addressed the issue are uniform in finding the one year
filing period created by the AEDPA is a "statute of limitations," and is
not jurisdictional. Miller v. New Jersey Dept. of Corrections, 145
F.3d 616 (3rd Cir. 1998)(the language of AEDPA clearly indicates
that the one year period is a statute of limitations and not a jurisdictional
bar); Calderon v. United States Dist. Court, 128 F.3d 1283, 1289
(9th Cir. 1997), cert. denied, 118 S.Ct. 899 (1998)(is a statute of limitations
subject to equitable tolling); Davis v. Johnson, 158 F.3d 806, 811
(5th Cir. 1998), (AEDPA's filing provision is not jurisdictional but, instead,
is a statute of limitations that, like all limitation statutes, could be
equitably tolled); see also Cantu-Tzin v. Johnson, 162 F.3d 295,
299 (5th Cir. 1998), cert. denied, 119 S. Ct. 847 (1999). The First Circuit
has yet to directly address the issue, having recently reserved on the
question, (FN5) but there is no reason to think
the First Circuit's conclusions would be any different from that of its
sister circuits. The First Circuit recently agreed with other circuits
on the one year grace period issue. Rogers v. United States, no.
98-2215, (1st Cir. June 21, 1999).
The
Supreme Court in Custis v. United States, 511 U.S. 485, 114 S.Ct.
1732, 128 L.Ed. .2d 517 (1994), observed that a federal defendant may attack
state sentences in the state of conviction, and if, "successful in attacking
those state sentences, he may then apply for reopening of any federal sentence
enhanced by the state sentences," Custis, 114 S.Ct. at 1739. This
language was cited by the First Circuit in United States v. Pettiford,
101 F.3d 199, 200 (1st Cir. 1996). The district court in
Pettiford
concluded from the Custis decision that § 2255 was the appropriate
way for a convicted federal prisoner to attack his enhanced federal sentence,
having successfully attacked the underlying state court predicate offense.
The First Circuit, in affirming the district court decision, ruled that
whether the successful state court attack was premised on a constitutional
error or some other basis, was not dispositive, noting the "is otherwise
subject to collateral attack" language of §2255. Pettiford
at 201. Cavallaro's motion attacking his underlying state court convictions,
is apparently very similar to that of
Pettiford's, alleging that
he had not been furnished by the court or counsel, before entry of his
guilty pleas, the information necessary for his pleas to be considered
voluntary, as constitutionally required. See Boykin v. Alabama,
395 U.S. 238, 242-43 (1969). Pettiford at 201-202. (Gov. pg. 25.)
The government, citing Parke v. Raley, 506 U.S. 20 (1993) attempts
to make the identical argument rejected by the First Circuit in Peddiford,
specifically that lack of a transcript, and presumptions of correctness,
should work to the government's advantage. That argument was rejected in
Peddiford
in which the court stated: