                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA



 UNITED STATES OF AMERICA

                    v.                                             Criminal Action No. 06-42-1 (JDB)
 LESLEY MERISE,
           Defendant.



                                        MEMORANDUM OPINION

       Lesley Merise moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255,

arguing that the Court failed to consider his deportable status at sentencing, that his trial counsel

was ineffective, and that his plea was made unknowingly and unintelligently. Mot. Under 28

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Mot. to

Vacate”) [ECF No. 53] at 13–16.1 For the reasons that follow, Merise’s motion will be dismissed

as untimely under 28 U.S.C. § 2255(f).

                                                BACKGROUND

       In 2005, Merise and three others kidnapped a nine-year-old American citizen who was

living with her family in Port-au-Prince, Haiti. Statement of the Offenses [ECF No. 36-1] at 1.

The four hostage-takers, wearing masks and brandishing weapons including a machete and a fake

firearm, abducted the girl from her bed after invading the family’s home. Id. at 1, 4. They then

took the girl to a remote mountain location where she was held for more than a week while the

hostage-takers demanded ransom money from her family. Id. at 1–2.




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           For ease of reference, the Court cites to the PDF pagination of Merise’s motion.
       Merise was arrested in Haiti in February 2007. After he waived extradition, he was brought

to the United States and arraigned. Minute Entry, April 10, 2007; Bench Warrant Returned

Executed [ECF No. 19]. In August 2007, Merise pled guilty to one count of Hostage Taking and

Aiding and Abetting and Causing an Act to be Done, in violation of 18 U.S.C. §§ 1203(a) and 2.

Plea Agreement [ECF No. 36] at 1; Indict. [ECF No. 1] at 1–2. Merise was sentenced to 238

months’ imprisonment, a sentence at the lower end of the advisory guidelines range. Judgment

[ECF No. 44] at 1–2; Amended Statement of Reasons [ECF No. 48] at 1–2. Judgment was entered

on December 12, 2007. Judgment at 1.

       In the eleven and a half years that followed, Merise never appealed his conviction, nor did

he ever challenge his sentence under § 2255. Then, on June 10, 2019, Merise filed his first § 2255

motion, which is the motion now before this Court. Mot. to Vacate at 1. The Court ordered the

government to respond. Minute Order, Oct. 22, 2019. The government filed a brief in opposition,

arguing that Merise’s motion is untimely. See United States’ Opp’n to Def.’s Pro Se Mot. Under

28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody

(“Opp’n Br.”) [ECF No. 56]. Merise filed a reply. See Def.’s Reply to Gov’t’s Resp. for a 28

U.S.C. § 2255 Mot. (“Reply Br.”) [ECF No. 57]. The motion is now ripe for consideration.

                                       LEGAL STANDARD

       The Antiterrorism and Effective Death Penalty Act (“AEDPA”) authorizes federal

prisoners to move to vacate, set aside, or correct a sentence “upon the ground that the sentence was

imposed in violation of the Constitution or laws of the United States, . . . or is otherwise subject to

collateral attack.” 28 U.S.C. § 2255(a). A prisoner’s ability to bring such a motion is subject to a

strict one-year time limitation triggered by “the latest of,” as relevant here, (1) “the date on which

the judgment of conviction becomes final,” (2) “the date on which the right asserted was initially

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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 (3) “the date on which the facts

supporting the claim or claims presented could have been discovered through the exercise of due

diligence.” Id. § 2255(f)(1), (3), (4).2

                                                ANALYSIS

        Merise’s § 2255 motion raises four grounds for relief: (1) the court failed to consider his

deportable status at sentencing, depriving him of due process; (2) his trial counsel was deficient in

failing to consult with him concerning a direct appeal; (3) his trial counsel was deficient in failing

to investigate and present mitigating evidence regarding Merise’s mental health and family

circumstances at sentencing; and (4) he made his plea unknowingly and unintelligently. Mot. to

Vacate at 13–16. All of these arguments, however, are barred by the one-year time limitation on

the filing of § 2255 motions and therefore must be dismissed as untimely. See 28 U.S.C. § 2255(f).

        “In most cases, the operative date from which the limitation period is measured will be the

one [in § 2255(f)(1)]: the date on which the judgment of conviction becomes final.” Dodd v.

United States, 545 U.S. 353, 357 (2005) (internal quotation marks omitted). Merise’s § 2255

motion is untimely under § 2255(f)(1) because it was filed more than one year (indeed, more than

eleven years) after Merise’s conviction became final in December 2007. Merise recognizes that

the time for him to file a § 2255 motion technically expired in December 2008. Mot. to Vacate at

18. Merise makes a variety of arguments, however, in an effort to overcome this hurdle. He argues

that the statute of limitations should be equitably tolled; that his first ground for relief is timely

under § 2255(f)(4); that the actual innocence exception to AEDPA’s statute of limitations applies;



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           Merise does not argue that there was an “impediment to making a motion created by governmental action
in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(f)(2).

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and that the one-year time limitation is an unconstitutional suspension of the writ of habeas corpus.

See Mot. to Vacate at 5, 23. The Court will address each of these arguments in turn.

       Equitable Tolling

       Merise argues that AEDPA’s statute of limitations should be equitably tolled, citing the

facts that he is a noncitizen unfamiliar with U.S. law, he has a mental condition that makes him

timid and shy, there was no reasoned appellate court opinion, and his attorney advised him that

there was nothing else for him to do and that he should not talk with other prisoners or jailhouse

lawyers about his case. Mot. to Vacate at 18, 21–23.

       AEDPA’s statute of limitations can, in appropriate circumstances, be equitably

tolled. See Holland v. Florida, 560 U.S. 631, 645 (2010).          However, “equitable tolling is

appropriate only if a petitioner shows ‘(1) that he has been pursuing his rights diligently, and

(2) that some extraordinary circumstance stood in his way and prevented timely filing.’” Head v.

Wilson, 792 F.3d 102, 106 (D.C. Cir. 2015) (quoting United States v. Baxter, 761 F.3d 17, 30–31

(D.C. Cir. 2014)). The delay “cannot be a product of [a petitioner’s] own misunderstanding of the

law or tactical mistakes in litigation.” Menominee Indian Tribe of Wis. v. United States, 764 F.3d

51, 58 (D.C. Cir. 2014). When a deadline is missed as a result of a “garden variety claim of

excusable neglect” or a “simple miscalculation,” equitable tolling is not warranted. Holland, 560

U.S. at 651 (internal quotation marks omitted).

       The circumstances that Merise describes, even collectively, do not justify equitable tolling

of the one-year limitation to file a § 2255 motion. Neither Merise’s unfamiliarity with U.S. law

nor the lack of guidance he received regarding post-conviction relief supports equitable tolling.

See United States v. Cicero, 214 F.3d 199, 203 (D.C. Cir. 2000) (“The prisoner’s ignorance of the

law or unfamiliarity with the legal process will not excuse his untimely filing, nor will a lack of

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representation during the applicable filing period.”). And although equitable tolling may be

justified where “an attorney’s behavior [is] so outrageous or so incompetent as to render it

extraordinary,” United States v. Pollard, 416 F.3d 48, 56 (D.C. Cir. 2005) (quotation omitted), the

fact, if true, that Merise’s attorney advised him “that there was nothing else for him to do, and not

to talk to other prisoners about the case,” Mot. to Vacate at 22, does not rise to the level of an

“extraordinary circumstance.” Cf. White v. Patton, 644 Fed. App’x 817, 818 (10th Cir. 2016)

(unpublished order) (holding that counsel’s failure to advise petitioner of his right to file a habeas

petition did not justify equitable tolling).

        Finally, even if there had been extraordinary circumstances that prevented Merise from

timely filing his § 2255 motion, he has not shown that he diligently pursued his rights over the last

decade and thus he does not qualify for equitable tolling. See Gordon v. Franklin, 456 F. App’x

739, 742 (10th Cir. 2012) (unpublished order) (noting that “[e]ven if the assistance of [petitioner’s]

counsel were so deficient as to meet the ‘extraordinary circumstance’ element of equitable tolling,

[petitioner] has not shown he pursued his claims with diligence”—he “offers no explanation for

his failure to pursue his claim for over a decade”); see also Rao v. Baker, 898 F.2d 191, 198 (D.C.

Cir. 1990) (“One who fails to act diligently cannot invoke equitable principles to excuse that lack

of diligence.” (quotation omitted)).

        Section 2255(f)(4)

        In addition to the equitable tolling defense, Merise contends that his first ground for

relief—that “[t]he court failed to consider the consequences of [his] deportable status” in

sentencing—is timely under § 2255(f)(4) because “the operative fact, the passage of the First Step

Act of 2018, occurred within the last year.” Mot. to Vacate at 5, 13. As the Court understands it,

Merise’s position is that the First Step Act involves a series of criminal justice reforms that are

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retroactively applicable to most prisoners, but not to prisoners who are, like Merise, deportable,

and that the Court’s failure to consider this disparity of treatment at sentencing creates a due

process and equal protection issue. Id. at 18.

       But section 2255(f)(4) states that the statute of limitations shall run from “the date on which

the facts supporting the claim or claims presented could have been discovered.” 28 U.S.C.

§ 2255(f)(4) (emphasis added). An intervening change in law does not constitute a new “fact”

under § 2255(f)(4). See Whiteside v. United States, 775 F.3d 180, 183 (4th Cir. 2014) (collecting

cases); see also United States v. Thompson, No. 16-CR-30038, 2020 WL 1274217, at *3 (C.D. Ill.

Mar. 17, 2020) (“[T]he enactment of the First Step Act is not a ‘fact’ within the meaning of

§ 2255(f)(4).”). “Construing every substantive change in the law as a new ‘fact’ for the purposes

of § 2255(f)(4) would render meaningless the limitations provision under § 2255(f)(3), which

provides that § 2255 motions may be filed within one year of a retroactive change in the law as

pronounced by the Supreme Court.” Thompson, 2020 WL 1274217, at *3. Because the passage

of the First Step Act is a change in the law and not a new fact under § 2255(f)(4), Merise’s first

ground for relief based on his deportable status is untimely.

       Merise’s first ground for relief also fails on its merits. He does not argue that the Court

committed any error at the time of sentencing; he admits that the Court could not have taken into

account, at that time, the specific disparities in how citizens and noncitizens would be treated under

the First Step Act. See Mot. to Vacate at 13. Still, he asserts that his sentence has now become

unlawful because of those new disparities. Merise cites no authority for his claim, and his

suggestion that courts are required to constantly reassess and adjust a defendant’s sentence when

the severity of confinement, as compared to other defendants, changes over time flies in the face

of “the usual finality of sentencing decisions.” See United States v. Lafayette, 585 F.3d 435, 438

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(D.C. Cir. 2009); see also Strickland v. Washington, 466 U.S. 668, 693 (1984) (noting “the

profound importance of finality in criminal proceedings”). Moreover, in sentencing Merise, the

Court did apply a six-month reduction based on the fortuitous increases in severity of confinement

that deportable aliens may face. See Sentencing Hr’g Tr. [ECF No. 59] at 37:16–38:11. Thus,

even if Merise’s first ground for relief were timely under § 2255(f)(4), there is no legal basis for

the argument, and the Court did in fact consider his deportable status in crafting an appropriate

sentence.

          Actual Innocence Exception

          Next, Merise argues that his fourth ground for relief—that he “made his guilty plea

unknowingly and unintelligently”—is timely because it “sounds in actual innocence,” which is an

exception to § 2255’s statute of limitations. Mot. to Vacate at 5, 9. The Supreme Court has held

that “actual innocence, if proved, serves as a gateway through which a petitioner may pass whether

the impediment is a procedural bar . . . or, as in this case, expiration of the statute of

limitations.” See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). But the actual innocence

standard is demanding: “[A] petitioner does not meet the threshold requirement unless he

persuades the district court that, in light of the new evidence, no juror, acting reasonably, would

have voted to find him guilty beyond a reasonable doubt.” See id. “‘[A]ctual innocence’ means

factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623

(1998).

          Here, defendant makes no specific allegations that he is factually innocent of the crime of

hostage-taking, nor does he claim that there is any new evidence proving his innocence. Merise’s

“varied and voluminous assertions of misconduct or inadequacies on the part of . . . [his] defense

attorney[]” or the Court at his plea hearing do not constitute “new evidence.” Rodriguez v. United

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States, No. 14 CIV. 4628 (CSH), 2017 WL 6404900, at *40 (S.D.N.Y. Dec. 13, 2017), aff’d, 767

Fed. App’x 160 (2d Cir. 2019). And Merise’s assertion that he lacked the requisite intent for aiding

and abetting is, likewise, not a showing of actual innocence. See Sawyer v. Whitley, 505 U.S.

333, 339 (1992) (noting that actual innocence, or fundamental miscarriage of justice, exception “is

concerned with actual as compared to legal innocence”); United States v. Marandola, 372 F. Supp.

3d 7, 16 (D.R.I. 2019) (concluding that petitioner’s allegation that elements of aggravated identity

theft were not satisfied “goes to legal sufficiency, not factual innocence”).

         The Court also notes that, at his plea hearing, Merise agreed under oath that the

government’s factual proffer was correct and that he committed the crime. “[R]epresentations of

the defendant, his lawyer, and the prosecutor at such a hearing, as well as any findings made by

the judge accepting the plea, constitute a formidable barrier in any subsequent collateral

proceedings.” Blackledge v. Allison, 431 U.S. 63, 73–74 (1977). Such declarations “carry a strong

presumption of verity,” and “subsequent presentation of conclusory allegations unsupported by

specifics is subject to summary dismissal, as are contentions that in the face of the record are

wholly incredible.” Id. at 74.3 Thus, Merise’s fourth ground for relief does not sound in actual

innocence and remains barred by AEDPA’s one-year statute of limitations.




         3
            In his reply brief, Merise makes several additional assertions about the inadequacy of his plea colloquy,
asserting, among other things, that the Court failed to inform him of his rights, including his right to a jury trial, and
that the plea colloquy did not involve a description of the charges. Reply Br. at 2–3. But Merise’s general allegations
are contradicted by the record. See Plea Hr’g Tr. [ECF No. 52] at 7:21–12:18 (Court informing defendant of his
rights); 13:4–20:10 (Court and government describing the charges).
          Merise also argues in his reply brief that he did not admit to the crime under oath because he lacked an
interpreter during his interview with his Probation Officer. Reply Br. at 5. The Court clarifies that Merise was, in
fact, provided with an interpreter at his plea hearing where he pled guilty under oath and agreed to the government’s
factual proffer. See Plea Hr’g Tr. at 2:7–16. The Court also notes that Merise signed a form acknowledging receipt
of the Presentence Investigation Report and stating that there were no material or factual inaccuracies in the report.
See Receipt & Acknowledgment of Presentence Investigation Report [ECF No. 41]. Even today, Merise has not
identified any alleged inaccuracies in the report.
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       Unconstitutional Suspension of the Writ

       Finally, Merise contends that his arguments should not be dismissed as untimely because

the one-year statute of limitations for first-time § 2255 motions is an unconstitutional suspension

of the writ of habeas corpus. See Mot. to Vacate at 23–25. To qualify as such a suspension,

AEDPA’s statute of limitations must render the writ an inadequate and ineffective tool to test the

legality of an individual’s detention. See Swain v. Pressley, 430 U.S. 372, 381 (1977). Every

court of appeals to address the issue has held that “AEDPA’s one-year statute of limitations does

not improperly suspend the writ of habeas corpus.” Hill v. Dailey, 557 F.3d 437, 438 (6th Cir.

2009) (collecting cases); cf. Felker v. Turpin, 518 U.S. 651, 664 (1996) (holding that AEDPA’s

stringent restrictions on second habeas petitions do not run afoul of the Suspension Clause).

“AEDPA’s principal effect is to limit, rather than suspend, the writ by providing that those who

fail to timely file a habeas petition forfeit the opportunity to do so.” Wyche v. United States, 317

F. Supp. 2d 1, 12 (D.D.C. 2004).

                                         CONCLUSION

       For the foregoing reasons, the Court concludes that Merise’s § 2255 motion must be

rejected as untimely. “Because the Court concludes that the defendant’s § 2255 motion is untimely

and fails as a matter of law for that reason, it need not hold an evidentiary hearing on the motion.”

United States v. Rice, 227 F. Supp. 3d 82, 86 (D.D.C. 2017). “[T]he motion and the files and

records of the case conclusively show that the prisoner is entitled to no relief.” United States v.

Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996) (quoting 28 U.S.C. § 2255(b)). Merise’s § 2255

motion will therefore be denied. A separate order will be issued on this date.




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                                         /s/
                                  JOHN D. BATES
                             United States District Judge
Dated: April 21, 2020




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