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United States v. Destine

United States District Court, D. Columbia.

January 28, 2014

UNITED STATES OF AMERICA,
v.
LUCSON RENARDO DESTINE, Defendant

LUCSON RENALDO DESTINE (1:13-cv-00982-CKK), Petitioner, Pro se.

LUCSON RENALDO DESTINE, also known as LUCKSON DESTINE, also known as TI-RENALD (1:08-cr-00126), Defendant, Pro se, Yazoo City, MS.

For LUCSON RENALDO DESTINE, also known as LUCKSON DESTINE, also known as TI-RENALD (1:08-cr-00126), Defendant: Tony W. Miles, LEAD ATTORNEY, FEDERAL PUBLIC DEFENDER FOR D.C., Washington, DC.

For ROCHEL SUCCES, also known as ROCHENEL SUCCES (1:08-cr-00126), Defendant: Rudolph Acree, Jr., LEAD ATTORNEY, LAW OFFICES OF RUDOLPH ACREE JR., Washington, DC.

For RICHARDO DESIR THEARD, also known as RICARDO DESIR THEARD (1:08-cr-00126), Defendant: Dwight E. Crawley, LEAD ATTORNEY, Washington, DC.

For USA (1:08-cr-00126), Plaintiff: Angela Gudrun Schmidt, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Appellate Division, Washington, DC; Thomas Anthony Quinn, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Special Proceedings Division, Washington, DC.

Page 154

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

Defendant Lucson Renardo Destine pled guilty to one count of Hostage Taking and Aiding and Abetting, in violation of 18 U.S.C. § § 1203(a) and 2, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). Presently before the Court is Defendant's pro se [49] Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, as well as the Government's [52] Motion to Dismiss Defendant's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. Defendant claims ineffective assistance of counsel in violation of his Sixth Amendment Rights, as he alleges various errors by his counsel of record including the failure to file a requested notice of appeal. The Court, however, does not address the merits of Defendant's claim because, upon consideration of the pleadings [1], the relevant legal authorities, and the record as a whole, the Court finds Defendant's motion is time-barred. Accordingly, Defendant's [49] Motion to Vacate, Set Aside, or Correct a Sentence is DENIED, and the Government's [52] Motion to Dismiss Defendant's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 is GRANTED.

On April 29, 2008, Defendant, along with his co-defendants, was charged by indictment with one count of Conspiracy to Commit Hostage Taking, in violation of 18 U.S.C. § 1203(a), and one count of Hostage Taking and Aiding and Abetting, in violation of 18 U.S.C. § 1203(a) and 2. See Indictment, ECF No. [1]. On February 26, 2009, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), Defendant entered a written guilty plea to one count of Hostage Taking and Aiding and Abetting, in violation of 18 U.S.C. § 1203(a) and 2. See Plea Agreement, ECF No. [15]. Under the plea agreement, the parties agreed that the appropriate sentence should be 168 months, and on May 15, 2009, the Court sentenced Defendant to 168 months incarceration, with credit for time served, followed by three (3) years of supervised release, and a Special Assessment of $100. See Judgment, ECF No. [36]. Defendant did not appeal from his conviction and sentence. Over four years later, on June 16, 2013, Defendant filed the present pro se [49] Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. Defendant argues that he

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received ineffective assistance of counsel in violation of his Sixth Amendment rights, as his counsel of record " [1] failed to file[] any timely objections to the Pre[s]entence Report, (2) [f]ailed to argue to the Court the application of U.S.S.G. § 5K2.11 [l]esser harms downward departure, where the record will demonstrate that defendant['s] life was in danger by his co-conspirators, (3) [f]ailed to argue to the Court that defendant's life is in danger upon return to his country, (4) [f]ailed to file a requested Notice of Appeal to have the Sentence review[ed] for an unreasonable sentence, (5) [f]ailed to preserve or perfect the record for [a]ppellant [sic] [r]eview." [2] Def.'s Mot. at 4. Upon receiving Defendant's motion, the Court ordered the Government to submit a response. Order (July 2, 2013), ECF No. [50]. In response, the Government filed its [52] Motion to Dismiss Defendant's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. Defendant subsequently filed his [54] Objections to the Government's motion.

Under Title 28, Section 2255 of the United States Code:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). " A 1-year period of limitation shall apply to a motion under this section." Id. § 2255(f). This one-year limitation period runs from the latest of:

(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 asserted 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.

Id. Accordingly, motions pursuant to § 2255 must be filed within one year of the date on which the judgment of conviction becomes final, or the movant must show that some other date of accrual is proper under § 2255(f)(2)-(4).

Here, Defendant's conviction and sentence became final on May 31, 2009 when he did not appeal from the May 15, 2009 sentencing hearing and May 21, 2009 entry of the judgment order. Pursuant to the version of Fed. R. App. Proc. 4(b) in effect in May 2009, Defendant was required to file his notice of appeal within 10 days after the entry of the judgment against him. See Fed. R. App. Proc. 4(b) (2005 ed.). Although he contends that the failure to file a notice of appeal was due to the ineffective assistance of counsel, the fact remains that Defendant did not file a

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notice of appeal, and his conviction became final on May 31, 2009. Furthermore, Defendant does not allege that some other date of accrual pursuant to § 2255(f)(2)-(4) is appropriate here. No illegal governmental action has prevented Defendant from filing his motion, nor does his motion rely on a newly recognized retroactively applicable right.

Further, Defendant does not allege that the facts underlying his motion could not have been discovered through the exercise of due diligence prior to May 31, 2009. Indeed the record reveals that the operative facts for Defendant's claim - his counsel of record's failure to raise certain challenges and appeal his sentence - were available and in fact disclosed to him in the presence of an interpreter at the time his conviction became final. See Transcript of Sentencing, 5/15/09 at 2:11-13 (noting swearing of interpreter for Sentencing); Transcript of Plea Hearing, 2/26/09 at 2:11-12 (noting swearing of interpreter for Plea Hearing).

First, although Defendant claims that his attorney " failed to file[] any timely objections to the Pre[s]entence Report", the record shows that Defendant's attorney did in fact consult with him before filing a set of objections to the Presentence Report. See Receipt and Acknowledgement of Presentence Investigation Report, ECF No. [35] at 2 (" Mr. Destine and I have reviewed the Presentence Report (PSR) in relation to his case, and we have found that the following factual/material inaccuracies exist in the PSR." ). Accordingly, Defendant was on notice of which objections his attorney was (and was not making). Further - after providing Defendant with an interpreter - the Court stated in open court at the time of sentencing that all objections had been resolved, a statement that Defendant had an opportunity to respond to and rebut. See Transcript of Sentencing, at 2:23-3:2 (" What I have is a presentence report . . . There are no objections that have not been resolved." ).

Next, regarding Defendant's contention that his attorney " [f]ailed to argue to the Court the application of U.S.S.G. § 5K2.11 [l]esser harms downward departure", at the plea colloquy, Defendant was informed by the Court, again in open court with the benefit of an interpreter, that pursuant to Defendant's Rule 11(c)(1)(C) plea, he and the Government had reached an agreement for a fixed sentence of 168 months, making a downward departure from the Sentencing Guidelines by the Court irrelevant. See Transcript of Plea Hearing at 37:11-16 (" Now, as I've indicated, the agreement that you and the Government have reached is that the sentence would be 168 months, that's roughly 14 years . . . If I do approve it then that would the sentence that you would get." ); id. at 39:1-4 (Defendant answering " Yes" to the Court's question, " Or you could decide not to withdraw the plea and go forward and be sentenced the way a normal defendant would be sentenced. Do you understand that?" ). Indeed, Defendant's Plea Agreement, which was interpreted to him, states that by agreeing to a specific sentence, he would not be seeking a downward departure. See Plea Agreement, ECF No. [15] at 4 (" The parties agree that under the Sentencing Guidelines neither a downward nor an upward departure from the applicable Guidelines range is warranted. Accordingly, neither party will seek such a departure." ); Transcript of Plea Hearing at 35:24-36:1 (Defendant replying " Yes" to the Court's question, " Okay. So then the full plea letter was interpreted to him?" ). The Court explained in detail and on the record to Defendant how the Sentencing Guidelines would be applicable only if the plea

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agreement were rejected or withdrawn. The Guideline range for Defendant was 210 to 262 months, and his sentence of 168 months was below this guideline range. Id. at 39:14-22 (" Let me discuss the sentencing guidelines or -- this would only come up if I don't accept the 168 months. So, if I don't accept the 168 months, this is the way the Court would go about deciding on an appropriate sentence. . . .You calculate the offense level, and there's somewhat of a calculation in here and I'll get to it, it's characteristics that relate to the offense." ). Transcript of Sentencing at 3:20-24 (" So, the difference between the advisory sentencing guidelines, which would be 210 months to 262, which is 17.5 years to 21.8 years. The plea has 168 months, which is 14 years, which is less than the advisory sentencing guidelines." ). If Defendant were to be sentenced pursuant to the advisory Sentencing Guidelines range, he would need to argue for a variance from the Sentencing Guidelines. Transcript of Plea Hearing at 41:9-12 (" The Court then could either sentence you within that. The Court could do what we call a variance, which could - the statute sets out certain things that I need to consider." ). His Rule 11(c)(1)(C) plea, the Court explained, was an agreed-upon variance of the advisory Sentencing Guidelines. Transcript of Sentencing at 3:25-4:2 (" The Government has justified the Rule 11(c)(1)(C) sentence, that is below the advisory sentencing guidelines, I guess by 3 years and 5 months on the following grounds . . . ." ). The Court further explained to Defendant that it did not see any potential downward departures as applying here, except for a possible departure based on Defendant's deportable status, placing Defendant on notice that his attorney was not arguing for a downward departure pursuant to U.S.S.G. § 5K2.11. Transcript of Plea Hearing at 41:4-7 (" I don't think that, as far as we know, that there's any departures that actually would apply other than maybe the fact that he's getting -- you're getting deported. But there's nothing obvious at this point. . . ." ). Defendant indicated that he understood the procedure under which he was being sentenced pursuant to his plea agreement. Id. at 41:19-42:2 (Defendant answering " Yes" to the Court's question, " So, I can either sentence you under the advisory sentencing guidelines. I can sentence you as a variance. Or I can do what has been proposed here, which is to agree to the sentence that you and your lawyer and the Government have agreed to, and if I accept that sentence, that will be the sentence that you get. . . . Is this something you've talked about with your lawyer?" ). Accordingly, Defendant's argument that his attorney failed to argue to the Court the application of U.S.S.G. § 5K2.11 [l]esser harms downward departure is out of place here, given the existence of his Rule 11(c)(1)(C) plea agreement. Furthermore, even if this argument were appropriate, the Court advised Defendant that it did not view any downward departures as appropriate (beyond perhaps the fact that Defendant was a deportable alien), signaling to Defendant at the time of the plea colloquy that his attorney had failed to argue for the application of the lesser harms downward departure. Consequently, no later accrual date is appropriate.

Next, regarding Defendant's contention that his attorney failed to raise his fear of deportation, Defendant was apprised during his plea colloquy, again in open court with the benefit of an interpreter, of the fact that his conviction could result in his deportation or exclusion from the United States. Transcript of Plea Hearing at

Page 158

11:1-7 (Defendant answering " Yes" to the Court's question, " Do you understand that the conviction for this offense, your being found guilty, could result in your being deported from the United States back to Haiti, or denial of citizenship if you wanted to become a citizen of the United States under the United States immigration law . . . ." ). Moreover, as noted, the Court stated that Defendant could potentially be eligible for a downward departure in his sentencing because of his status as a deportable alien. Transcript of Sentencing at 4:5-6 (" He would be eligible for a Smith departure of six months because he is a deportable alien." ). In addition, Defendant's Plea Agreement, which again he stated was interpreted to him, makes clear that he would be subject " to detention, deportation and other sanctions at the direction of the U.S. Immigration and Customs Enforcement." Plea Agreement, ECF No. [15] at 3. Further, at his sentencing, the Court explicitly addressed in open Court with the benefit of an interpreter the fact that Defendant was deportable. Transcript of Sentencing at 4:6 (noting that Defendant is a " deportable alien" ); id. at 13:23-14:3 (raising the possibility of deportation). Thus, it was clear to Defendant at the time his conviction became final that he was not being provided asylum due to any alleged danger in returning to his country.

Finally, as part of both his plea colloquy and sentencing, Defendant was explicitly informed of his right to appeal and the applicable ten-day deadline for filing such an appeal.[3] See Transcript of Plea Hearing at 15:3-8 (" You can appeal your conviction if you believe your guilty plea was unlawful or involuntary, or there was some fundamental defect in the proceeding. . . . And you have a statutory right to appeal your sentence under certain circumstances. . . ." ); Transcript of Sentencing at 14:9-11 (" You have a right to appeal the sentence imposed by the Court. You must file an appeal within 10 days after the court enters judgment." ). Indeed, the Court explicitly informed Defendant that he could appeal without any cost to him, and that counsel would be appointed to represent him. Id. at 14:11-13 (" If you're unable to afford the costs of an appeal, you can ask the Court to appoint counsel to represent you at no cost to you." ); Transcript of Plea Hearing at 15:11-14 (Defendant answering " Yes" to the Court's question, " And if you are unable to pay the costs of an appeal you can ask to pay without any costs to you. Do you understand that?" ).

Thus, the facts underlying Defendant's claim were not only discoverable by Defendant - they appear to have been known by Defendant at the time his conviction became final. Again, as noted, in all of these proceedings, Defendant was provided an interpreter. Now, more than four years later, Defendant argues that did not realize the legal significance of these decisions at the time. Def.'s Obj. at 1. But the D.C. Circuit has rejected this understanding of § 2254(f)(4), as it " would in effect write the statute of limitations out of AEDPA, rendering it a nullity." United States v. Pollard, 416 F.3d 48, 55, 367 U.S. App. D.C. 386 (D.C. Cir.

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2005). Rather, " for the purposes of § 2255(f)(4), '[t]ime begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance.'" Id. (quoting Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)). Accordingly, the Court concludes that May 31, 2009 - the date Defendant's conviction became final - is the start date for the one-year statute of limitations applicable to motions under § 2255. See also Dodd v. United States, 545 U.S. 353, 357, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005) (" In most cases, the operative date from which the limitations period will be measured will be the one identified in [(f)(1)]: 'the date on which the judgment of conviction becomes final.'" ).

Given this accrual date, the Government argues that the statute of limitations for Defendant's motion expired exactly one year later, on May 31, 2010. Gov't's MTD at 5. Thus, because Defendant's motion was not filed until June 16, 2013, pursuant to the one-year statute of limitations, his motion is untimely. The Court agrees. The statute of limitations for this motion expired on May 31, 2010 and Defendant's motion is untimely. To be sure, the Supreme Court has held that the statute of limitations applicable to § 2255 motions is subject to equitable tolling. See Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010). However, this equitable tolling is available only where a movant shows " '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). Here, Defendant has not established that extraordinary circumstances prevented him from filing his motion within the limitations period or that he has been pursuing his rights diligently in the time since his conviction became final. Indeed, the only explanation Defendant offers for his delay is that he " was in the special housing unit, with no access to a law library to file a timely § 2255." Def.'s Obj. at 2. Defendant never explains why confinement in the special housing unit prevented his timely filing, nor does he set out the actual dates in which he was confined in the special housing unit. In fact, he does not even state whether this confinement even overlapped with the limitations period at issue. Furthermore, although Defendant points to his counsel's alleged disregard of his instructions to file an appeal, Def.'s Mot. at 12, he does not allege that his counsel's misbehavior or inaction prevented him from filing a motion pursuant to § 2255, the sort of attorney irresponsibility that could constitute " extraordinary circumstances" and result in equitable tolling. See Holland, 130 S.Ct. at 2564-65. In addition, Defendant never explains how he was diligently pursuing his rights during this period of confinement in the special housing unit. Without much more information as to the circumstances and timing of Defendant's confinement, further explanation of the circumstances preventing him from filing his motion, and additional evidence that he was diligently pursuing his rights, the Court concludes that this is not a case where equitable tolling is applicable. And in the absence of equitable tolling of the applicable statute of limitations, Defendant's motion is plainly untimely.

For the foregoing reasons, the Court finds Defendant is not entitled to the requested relief. Defendant was required to file a motion to vacate pursuant to 28 U.S.C. § 2255 within one year of the date on which his conviction became final, but clearly failed to do so. Defendant attempts to invoke equitable tolling of the statute of limitations, but cannot establish

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the extraordinary circumstances and diligent pursuit of his rights needed for such tolling. Furthermore, the Court concludes that a hearing in this matter is unnecessary because the record conclusively shows that Defendant's motion is time-barred. See 28 U.S.C. § 2255(b) (no hearing required where " the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief" ). Accordingly, Defendant's [49] Motion to Vacate, Set Aside, or Correct a Sentence is DENIED and the Government's [52] Motion to Dismiss Defendant's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 is GRANTED. An appropriate Order accompanies a Memorandum Opinion.

As an additional note, in this Opinion, the Court has relied on finalized portions of the unofficial transcripts of Defendant's Plea Hearing and Sentencing which have been prepared by the Court Reporter. For the parties' reference, the Court attaches the pages containing these finalized portions as an Appendix to this Opinion.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v.

Civil Action No. 13-0982 (CKK)

Criminal No. 08-126-01 (CKK)

LUCSON RENARDO DESTINE,

Defendant.

APPENDIX TO THE COURT'S JANUARY 28, 2014 MEMORANDUM OPINION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Government,

CR No.

Washington, DC

vs.

Date

Time

XXX,

Defendant.

TRANSCRIPT OF STATUS HEARING BEFORE THE HONORABLE COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Government: ESQUIRE

Washington, DC 20530

(202)

For the Defendant: ESQUIRE

Court Reporter: Lisa M. Foradori, RPR, FCRR

Official Court Reporter

U.S. Courthouse, Room 6706

333 Constitution Avenue, NW

Washington, DC 20001 (202) 354-3269Proceedings recorded by mechanical stenography; transcript produced ...


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