*1 regarding I. His beliefs part had he commit- nature been crimes himself have could, therefore, irrele equally have been were them. He transmissions ted WSE’s 1084(b)’s abetting fact aiding and WSE’s in view of the found liable for vant was, inap §of 1084. as a matter of ongoing violation harbor safe part supra, to II. There plicable him. See Deposition Foreign of a Witness VI fore, its the district court was well within denying district court motion. argues Cohen discretion motion, pursuant should have 15(a), adjourn his trial
to Fed.R.Crim.P. CONCLUSION depose a that he could week so above, the set forth For reasons witness, Anti- Antigua. witness in court AffiRmed. the district is official, was unavailable guan That for trial to medical reasons. due
testimony, was not material trial, thus
Cohen’s denying discretion in
did abuse its
motion. 15(a), Rule a trial court
Under discretion, may, deposition order GREEN, also as Donald known at “[w]henever of a for use trial witness Sly, Stone, also known exceptional circumstances due Petitioner-Appellant, justice.” it is interests Fed. case in the 15(a). A R.Crim.P. movant must show (1) unavail prospective witness is America, UNITED STATES (2) trial, testimony the witness’ is able Respondent-Appellee. material, testimony neces (3),the justice. sary prevent a failure of See No. 98-2061. Docket Singleton, States v. Appeals, United States Court (2d Cir.1972). Second Circuit. testimony Cohen witness’ states his trial: was material to two issues at May Argued 2001. motive; had a corrupt whether Cohen Decided that he whether Cohen believed assisting in transmitting mere information any rather than bets placing of bets states that the Cohen witness
themselves. gave she
would have testified the advice experience Anti- upon
him her as an based conver-
guan upon alleged official and her officials.
sations with U.S. Government discussed, nei already
As this
ther of these two issues was relevant to guilt question of Cohen’s irrelevant purported
Cohen’s motive was conviction, or conspiracy
to the issue of his supra, any in his See other issue case. *2 Dis District Court for the Western
States York, Curtin, J., denying trict of New of time to file a motion for *3 to 28 motion for U.S.C. by § 2255 as amended the Antiterrorism Penalty Act of and Effective Death (AEDPA). provides, perti Section 2255 nent part: A custody under sentence prisoner by a Act of Congress court established right upon released claiming the to be im- ground the the sentence was posed in the or violation of Constitution States, the or that the laws of United impose without court was sentence, or such that the sentence was by of the maximum authorized excess subject to or is otherwise collateral Jacobson, City, R. New York Monica attack, may move the court which im- Jacobson, City, (Alvy & New York of coun- vacate, posed set the sentence to aside sel), Appellant. or correct the sentence- Jr., Hochul, J. Assistant United William imposed “1-year period of limi Congress Attorney, States District of New Western motions, tation” which Buffalo, (Denisé O’Donnell, York, NY, E. case, runs, from date on in 'this “the which Attorney for the Western Buffalo, New'York, NY, fin judgment conviction becomes District of 2255(1). counsel), Appellee. al.” 28 U.S.C. MESKILL, district court held that Green’s time KEARSE Before: SOTOMAYOR, Judges. already Circuit had section 2255 motion expired fi- conviction became in a Judge separate KEARSE concurs year nal more than one before he filed his opinion. requesting motion an extension time. MESKILL, Judge: Circuit appeala- Green certificate (1) bility following on the issues: whether Petitioner-appellant Donald Green (Green) can appeals grant an order of the an extension of (3) statutory right "period provi- the date on which the 1. The of limitations” asserted reads: initially recognized by sion Supreme was 1-year period Court, A of limitation shall right newly recognized if that has been a motion under section. The limitation by retroactively Court and made of— period shall from the latest run review; applicable cases on collateral (1) judgment date on which (4) supporting the facts the date which final; viction becomes presented the claim or claims could have (2) impediment the date on which the through exercise been discovered of due by governmental making a created diligence. action in violation or laws Constitution U.S.C. removed, if movant of the United States is making prevented such from action; governmental a section 2255 time to file for writ of certiorari on whether a October 1996. See Green v. United a section 2255 time can be construed as 117 S.Ct. (1996). purposes
motion for
of timeliness under L.Ed.2d 262
AEDPA, and
date
what
constitutes
the date on
of convic-
which
B. Green’s Motion to Extend Time
tion becomes final under the AEDPA.
On June
We vacate the district court’s order be-
district court a “motion for
extend
[sic]
cause we find that the district court did
enlarge
time” to
within
he
*4
not have
to rule on Green’s
could file a motion for
pursuant
motion for an extension
time absent the
of
government
section 2255. The
opposed
filing of a substantive section 2255 motion.
ground
the motion on the
that Green’s
case, however,
In view of the facts of this
pursuant
time to move
to section 2255 had
government
offered
waive
29,
expired
1997,
on March
year
one
permit
of limitations
statute
defense
we affirmed Green’s convictions on direct
Green to
a section
motion.
2255
18, 1997,
appeal. On November
Green
previ-
moved the district court to treat his
BACKGROUND
ous motion for an extension of time as a
A.
Trial
Appeal
Green’s
for
relief under section 2255. The
30, 1994,
jury
On March
returned
government opposed this
on
timeli-
for,
guilty
against
verdicts
Green
inter
grounds,
argued
ness
and alternatively,
alia,
racketeering conspiracy, narcotics
set
sufficiently
Green had not
forth
conspiracy, engaging
continuing
crimi
claim relief
enterprise
justice,
nal
and obstruction of
1997,
15,
On December
the district court
of
arising
all
out Green’s role as the leader
summarily denied
for an
Green’s motion
Buffalo,
Boys” gang
of the “L.A.
New
on
grounds
extension of time
Workman,
York. See
80
United States v.
time to
Green’s
move
to section
(2d Cir.1996)
688,
F.3d
on
(holding,
691-92
1995,
expired
July
2255 had
on
one
appeal, that
direct
the evidence showed
year after his
in the district
conviction
“that
was the
of
L.A.
Green
leader
court became final. Because Green had
Boys, and that he had
orchestrated
filed his first
for an
extension of
activities”).
enterprise’s
The district court
10, 1997,
time on June
the district court
sentenced Green to four concurrent
life
lapsed
held that Green’s time to file had
sentences,
twenty year
two concurrent
juris-
accordingly,
it was
without
sentences,
year
a ten
concurrent sentence
diction to consider
motion.
Green’s
sentences,
year
and fifteen concurrent four
unexpired
toall
follow an
New York state
On December
filed a
Green
murder sentence. Final
entered
Green,
appeal.
notice of
incarcerat-
29, 1994.
se,
pro
years
ed
tried
over two
appellate
On March
we affirmed
obtain
Green’s
review
all respects.2
conviction in
See id. The
denial of
motion. March
court’s
On
Court
denied
we
certificate
Workman,
2. Both
and the
cite
F.3d at
March
March
1996. See
day discrepancy
the date
we
on which
affirmed
688. The two
does
alter
analysis.
That decision
conviction.
is dated
our
Less than two weeks after we
assignment
appealability
ordered
appealability,
certificate of
we
granted the
appeal followed.
counsel. This
appellate
McGinnis,
v.
Ordinarily, moving if party requests a federal court would exten jurisdiction an actual upon to consider Green’s sion have time. and exception- extend “rare erroneously jurisdiction when issued nevertheless suf- [even if] Our vested the Court appellate jurisdiction appealability. Green a certificate fices confer under States, (2d v. F.3d 2253.”). See Soto United Cir.1999) ("[A] appealability certificate (2d Cir.1983)); equitably tolling warrant al” circumstances cf. period. Ben-Shimon, limitations v. 249 F.3d (2d Cir.2001) curiam) (per 103-04 (general Timely Exten- B. Motion Whether objection pro sentencing se defendant at as a Time Can Be Construed sion of should been liberally have construed Purposes 2255 Motion Section preservation purposes). holding, so we AEDPA Timeliness under the note that the reference the second certi It is se liti pro well settled to a question “timely fied motion for exten generally are entitled to liberal gants holding. sion of is irrelevant to our time” of their pleadings, construction Irrespective prisoner of when a files strongest be read “to should raise the time, motion for extension the district arguments they suggest.” Graham court must first determine whether Cir.1996) Henderson, 89 F.3d allegations motion contains supporting omitted); Haines v. (quotation marks see claim for it section 2255. If Kerner, S.Ct. does, the should construe curiam) (per (holding L.Ed.2d such, then decide whether the mo pro complaint that the se not, If it timely. tion is does the district stringent to less standards than are “h[e]ld court has no Leon pleadings by lawyers”); Li formal drafted consider the motion.4 119, 122 v. United riano reject Although (2d Cir.1996) curiam) supple (per (pro se sweeping contention that a ex- motion to “substantially mental brief constitutes the *6 never be -a tend time can converted into 2244(b)(3)(A), by § envisioned and motion motion under substantive section satisfying treated' as the motion will be government’s argument persuasive is requirement”). respect filings. A to Green’s motion under why gener see no reason “specify 2255 must all grounds section should not pro al rule se motions are for relief which available to the movant Where a filed section 2255. or, by he has and of which the exercise motion, nominally seeking an extension diligence, should reasonable have knowl- time, allegations sup contains sufficient edge summary and set forth shall form claim a district port a under section supporting the facts each of grounds empowered, court is and some instances specified.” Rules Governing thus Section required, under to treat be Haines 2(b); Proceedings, Rule see United that motion as a substantive motion for Horvath, States v. 132-33 Fleming relief under section 2255. See v. curiam) (2d Cir.1998) (facts (per support- States, 146 F.3d Cir. claimed error need be set forth ing curiam) 1998) (per a district (holding that generally). pro a petitions court must review se “with eye, are often allowing lenient borderline cases to Courts called on to deter Kullman, proceed”) (quoting moving party’s generalized Williams v. mine whether construe a The notice to the If the decides to section 2255. movant placed by motion for extension of time as a substantive should describe limitations motion, notify amending applicable on section the court should rules section potentially if consequences of the court's and adverse effects movant opportunity prejudice and offer denied with action the movant the motion is stringent faces the to withdraw the motion rather have the movant then limits on sec- than request section 2255 court consider it as a ond or successive motions. relief hold- prior position the re nor the district court’s sufficient to are meet See, g., point e. quirements ing of section 2255. on was correct. Aiello, 109, 113 United States Since the district court issued (2d Cir.1987) (holding a section untimely, denying Green’s motion as order more than petition must be based on prisoner’s conviction we have held that “[a]iry generalities, conclusory assertions 2255 of the becomes final under section statements”). Here, however, hearsay Supreme AEDPA when the United States September 1997 and Green’s June prisoner’s for a Court denies the of time do requests See 203 F.3d at certiorari. writ single any cogni contain not reference to Therefore, be Green’s conviction claim under section 2255. Nor does zable final when the came on October 18, 1997 to treat Green’s November denied his Court motion as section motion. petition for a writ of He had certiorari.
Accordingly, Green had not articu for relief until October 1997 move any in fact or law for relief lated basis 2255. Green filed his motion 2255, the court did under section time, to extend dated June by failing err to treat his motion to September it well renewed extend time as a substantive section Accordingly, the dis before deadline. See, g., motion. e. Barnett v. United any trict court’s determination (S.D.N.Y. F.Supp. 1994) (“Although employ district courts 1995 would been have time-barred was leniency in interpreting substantial erroneous. submit, papers pro petitioners se impossible for this to deter simply D. The its Stat- Government’s Waiver of petitioner mine whether has made out a ute Limitations Defense on these six case claims because appeal, On concedes petitioner has failed both the state that it and the district court erred de- grounds requested relief is *7 termining when Green’s conviction became any facts that would substantiate these final and that this Court remand to should grounds.”). under opportunity
allow Green the to move Fi- C. When Does a Conviction Become government suggests, The section 2255. nal Under Section 2255? thirty only that we allow Green days within to file and that we re- which government argued The the dis- before previously strict his arguments “those trict court had be- that Green’s conviction raised, by in appellant pleadings his final AEDPA purposes come the 29, 1996, below.”5 Green counters that the statuto- upheld March when period ry equitably time should be tolled appeal. viction on direct final from the date of his initial motion to ex- held conviction became Green’s time, him by leaving trial court on tend June when was entered the See, Smith, July g., government’s days 1994. Neither the to move. e. government argues Specifically, 1998 motions before Court. In these Green should be limited to the post-deadline filings, pre-dead- unlike in his in extension, asserted his November 1997 motion to requests ad- line for an treat his to extend as a motion arguments vanced for relief under substantive court, under 2255 before the district section 2255. and his March 1998 and November Further, (holding that time limita- at 17 AEDPA’s we find no rational equitably tolled “ex- may tion be where basis for the limit desire to peti- prevent circumstances” traordinary grounds upon rely may which Green in filing timely petition tioner from support of such a motion. acts with dili- petitioner
where reasonable gence). CONCLUSION reach re- arguments do not Green’s We We vacate tolling garding equitable juris- court not but do remand because our has filed a motion for not diction with our ends decision on issues required section 2255 as presented in the certificate of appealabili- contemplated discussion is such a not assume, ty. however, that, by gov- by appealability. See 28 the certificate offer, it ernment’s has committed itself to 2253(c)(3) (“The ap- certificate U.S.C. waive its statute of limitations defense specific ... shall pealability indicate which Green’s a section 2255 within satisfy showing re- issue or issues 60 days fróm the date this decision be- quired” appellate . review under without comes final limitation as to the AEDPA.); see also Armienti v. United claims Green assert therein. Cir.2000) (“We not address a claim included will KEARSE, Judge, concurring Circuit in appealability.”). in the Ac- certificate the vacatur: jurisdictional cordingly, we have no basis equitable tolling argu- address opinion I in much of majority concur ments. judgment, I reach the ulti- but mate result a route different from
Nevertheless, brief, govern- in its D taken Part of the Discussion section limita- expressly ment waives its statute of opinion. of that I vacate would not by advocating tions defense a remand and denying petitioner the order Donald “suggesting” the conditions for that re- Green’s extension motions for untimeli- See, Gould, g., e. mand. United States v. ness, I would also the doctrine of (E.D.Pa. at *4 WL tolling equitable to treat the mo- 1997) (“[T]he AEDPA period limitations tions as a motion for relief under 28 U.S.C. subject tolling is a of limitations statute and, as a him equity, give matter of Because the waiver. days amended defense, statute of waived the limitations that states one more claims under that proceed evaluating will *8 motion.”). section. merits of the defendant’s Dur- argument,
ing government oral the majority I the motion agree with that a it had waived firmed that its statute for relief an extension time to seek “leaving it limitations defense and was (a § motion the under over which to fashion what’s [the fair.” Court] subject jurisdiction court no has matter motion, § light prior filing of a see government’s the con to the cession, Leon, clear error the by the made both (2d Cir.2000)), government may, appropriate and the district and the in circum- court incarcerated, stances, § fact that believe be treated as a 2255 motion Green days given sixty agree that should be from itself. I that the also extension the date this decision final to in this case did not contain becomes motions filed § 2255 district court for to state a move the sufficient (a) However, the should be given that Green’s view as whether claim. re- granted. government § ex- did not 2255 had not time move under i.e., motions, September spond, until pired when he made extension position months later. And the tak- (b) three that his exten- that Green later asked erroneous, government ar- en the was mo- §a motions be treated as sion time to (c) guing Green’s move tion, expired his time to move May year § 2255 had one expired delays by government during the lengthy affirmance convic- after Court’s of his the court in the course district tion, year rather than October one conclu- reaching respective erroneous their Supreme the denial of after Court’s certio- already deadline had sions Green’s . rari. would, equity, I as a passed, matter § 2255 as a
treat
extension motions
Further,
court,
if
district
after re-
in order
motion and allow its amendment
ceiving
response,
had
to state
claim.
on Green’s extension mo-
quickly acted
dismissing
it or
it for
denying
tion—either
an appropriate
I
case as
one
view this
jurisdiction
had
lack of
would have
—Green
prin
application
equitable tolling
—a
four
in which to file a
some
weeks
applied to
ciple
we have indicated
be
However,
§
2255 motion.
filing
generally
§
of a
see
until De-
court did not deliver its decision
McGinnis,
Smith v.
three
nearly
cember
months after
Cir.2000) (so ruling
as to
under 28
receiving
government’s response.
And
2254),
denied,
§
U.S.C.
cert.
though rejecting the
ruling,
the court’s
S.Ct.
L.Ed.2d
—for
view to
government’s erroneous
as Green’s
following
reasons. As a matter of
deadline,
erroneous, stating that
was itself
unsuccessfully peti
where
defendant
§
passed
Green’s
2255 deadline had
certiorari,
tioned for
his time to file a
year after
the district
one
§
expires
year
2255 motion
entry
conviction.
court’s
2255;
§
certiorari denial. See 28 U.S.C.
By
time
decision
the court rendered its
States v.
moved exceptional equitable cases in which 15, 1997, prior more than a month ber tolling appropriate. government deadline. After the filed his response to Green’s extension motions September immediately reply September arguing that he until had October 1997 to move under
§ 2255. Finally, seven more weeks court, no from the decision the court on November
asked treat his extension motions as a Gregory GILCHRIST, Petitioner- § 2255 motion. Appellant, Although circumstances this case parallel entirely do those which tolling previously ap- has been equitable O’KEEFE, Superintendent, John R.
plied, equity not be formulaic. need Respondent-Appellee. (a) circumstances the de- here—in No. Docket 00-2466. timely repeatedly sought fendant protect right to file a Appeals, United States Court of (erroneous) (b) response Second Circuit. (c) (errone- delayed, the court’s was ous) delayed decision further was April Argued —seem extraordinary me equita- to warrant Aug. Decided tolling. ble do majority’s
I not concur view equitable we tolling
that cannot here appealability
because the certificate of appeal for this does not mention concept. questions certi- One
fied “whether can
extension of time be construed as a purposes 2255 motion for timeliness regard ques-
under the AEDPA.” I sufficiently
tion broad to allow this remedy to determine what to order
if the treatment
accorded the motion was errone-
ous. believe, majority opinion
Nor do I as the may grant equitable
suggests, re-
lief here