Bermudez v. United States
- Loretta Preska
- 1:16-cv-05356
- U.S. District Court · Southern District of New York
- 7
In Bermudez v. United States, Judge Preska denied Richie Bermudez’s untimely sentence challenge because he showed no basis to extend the filing deadline.
Richie Bermudez’s challenge to his 2006 federal conviction and sentence was denied as untimely; the United States prevailed on the motion, and the underlying conviction and sentence were not set aside.
What happened
In Bermudez v. United States, Richie Bermudez asked the court to set aside his 2006 conviction and sentence under a federal law allowing prisoners to challenge their sentences. He filed the motion in 2016, after the Supreme Court had made his conviction final in 2009.
The court found that the law gave him one year from January 12, 2009, to file, but he waited until June 23, 2016. Bermudez argued that his physical and mental impairments, lack of a lawyer, and claimed actual innocence should excuse the delay. The court found that he offered no evidence showing that these circumstances prevented a timely filing, and his innocence claims were vague and unsupported by new reliable evidence.
Judge Preska adopted Magistrate Judge Freeman’s recommendation and denied Bermudez’s motion. The court also declined to issue a certificate allowing an appeal, certified that an appeal would not be taken in good faith, and directed that the case be closed and pending motions be denied as moot.
The detailed version
- Bermudez v. United States · No. 1:16-cv-05356
- Loretta Preska
- Dec. 11, 2020
Background
Richie Bermudez was convicted by a jury in 2006 of possessing a firearm after a felony conviction. The court sentenced him to 70 months in prison followed by three years of supervised release. The court of appeals affirmed the conviction and sentence, and the Supreme Court denied review on January 12, 2009, making the conviction final.
Bermudez later filed a motion under 28 U.S.C. § 2255, a procedure that allows a federal prisoner to challenge a conviction or sentence. He filed the motion, at the earliest, on June 23, 2016. Magistrate Judge Debra Freeman recommended denying it, and Bermudez objected.
Timeliness and Equitable Tolling
The court held that the motion was untimely. Section 2255 generally imposes a one-year filing period running from the date the conviction becomes final. Because Bermudez’s conviction became final on January 12, 2009, his filing deadline was January 12, 2010. He filed more than six years after that deadline.
Bermudez argued that equitable tolling should apply. Equitable tolling is an exception that can extend a filing deadline when extraordinary circumstances prevented a timely filing and the person acted diligently. The court rejected his argument that his physical or mental impairments justified tolling because he provided no evidence that those conditions made him unable to file on time. The court also rejected his argument based on proceeding without a lawyer, explaining that self-represented status alone is not an extraordinary circumstance.
Bermudez additionally claimed actual innocence. The court explained that this exception requires new reliable evidence, such as scientific evidence, trustworthy eyewitness testimony, or important physical evidence that was not presented at trial. It found that Bermudez offered only vague and conclusive statements, which did not meet that standard.
Ruling
Judge Preska adopted Magistrate Judge Freeman’s Report and Recommendation in full and denied Bermudez’s Section 2255 motion. The court found that his remaining objections did not cure the filing delay. It did not grant a certificate of appealability because Bermudez had not made the required substantial showing of a constitutional violation. The court also certified that any appeal would not be taken in good faith, directed the Clerk to close the action, and ordered that all pending motions be denied as moot.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.