Ronald J. Trucchio v. United States

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16353
Non-Argument Calendar
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D.C. Docket Nos. 8:10-cv-02743-SCB-TGW; 8:04-cr-00348-SCB-TGW-1
RONALD J. TRUCCHIO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(January 21, 2014)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Ronald Trucchio, through counsel, appeals the district court’s dismissal of
his 28 U.S.C. § 2255 motion to vacate, set aside, or correct. On appeal, Trucchio
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argues that the court erred in dismissing his motion to vacate as untimely because
it was filed after the one-year period set forth in 28 U.S.C. § 2255(f)(4). He argues
that the court incorrectly determined that the material containing the statements
made by co-conspirator John Alite to law enforcement, which formed the basis of
Trucchio’s § 2255 motion (also referred to as the “18 U.S.C. § 3500 material”),
became available when the United States v. Gotti jury was discharged on
December 1, 2009. Instead, Trucchio argues, the material underlying his claim
was not available to him before January 13, 2010, because neither the Gotti
defense counsel nor the government, the only two potential sources from which he
could have obtained the material, were willing to provide it to him prior to the
government declaring nolle prosequi. Further, Trucchio had no direct knowledge
of the details and nature of the Gotti protective order, and, thus, could not have
reasonably known that it would be lifted upon the discharge of the jury. Trucchio
maintains that he made diligent efforts throughout the duration of the Gotti case to
obtain the § 3500 material.
We review a district court’s findings of fact in a 28 U.S.C. § 2255
proceeding for clear error, and its legal conclusions de novo. Garcia v. United
States, 278 F.3d 1210, 1212 (11th Cir. 2002). Specifically, we review de novo a
district court’s determination that a petition for federal habeas corpus relief is time-
barred. Jones v. United States, 304 F.3d 1035, 1037 (11th Cir. 2002). A § 2255
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motion is timely filed, inter alia, 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(f)(4). Because a fundamental
purpose of § 2255 is to establish finality in post-conviction proceedings, the one-
year limitation period for filing a § 2255 motion is mandatory and unequivocal.
Jones, 304 F.3d at 1039-40 (discussing the issue of equitable tolling of the
statutory limitation period).
We have held that the “due diligence” element of § 2255(f)(4) requires
neither the “maximum feasible diligence” nor the undertaking of repeated
exercises in futility, but it does require that a prisoner make “reasonable efforts” in
discovering the factual predicate of his claim. Aron v. United States, 291 F.3d 708,
712 (11th Cir. 2002). “Moreover, the due diligence inquiry is an individualized
one that must take into account the conditions of confinement and the reality of the
prison system.” Id. (quotations omitted).
Neither we nor the U.S. Supreme Court has substantively analyzed what
effort would satisfy the due diligence requirement in a case such as this, where
multiple defendants were tried for participating in the same criminal organization,
and where evidence surfaced in a piecemeal fashion throughout various trials.
Instead, the primary cases dealing with due diligence address the issue of whether
a petitioner exercised due diligence in discovering that a prior state conviction that
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formed the basis of his sentence enhancement had been vacated. See, e.g., Johnson
v. United States, 544 U.S. 295, 308, 125 S. Ct. 1571, 1580-81 (2005) (“diligence
can be shown by prompt action on the part of the petitioner as soon as he is in a
position to realize that he has an interest in challenging the prior conviction with its
potential to enhance [his] later sentence”).
As discussed below, the district court’s finding—that the § 3500 material
forming the purported basis of Trucchio’s § 2255 motion became available on
December 1, 2009—was not clearly erroneous. Thus, Trucchio fails to show that
he filed his § 2255 motion within one year of the date upon which the new
evidence became reasonably available. The statutory language, “the date on which
the facts . . . could have been discovered,” indicates that the one-year period begins
on the first day the evidence becomes reasonably available, thus giving the movant
one year to request, obtain, review, and incorporate any new information into a
§ 2255 motion. See 28 U.S.C. § 2255(f)(4). Therefore, there is a distinction
between: (1) the date on which the evidence objectively becomes reasonably
amenable to discovery, in this case on December 1, 2009, when the Gotti jury was
discharged and the protective order was lifted, and (2) the date on which the
movant subjectively believes that he could physically access the material, here on
January 13, 2010. See Aron, 291 F.3d at 711.
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Trucchio contends that even if he had requested the § 3500 material from the
government as of the discharge of the Gotti jury, the material would have
inevitably arrived long after December 1, 2009, and likely no earlier than January
13, 2010, the first day on which the Gotti defense was willing to share with him the
§ 3500 materials. Trucchio’s argument, however, is flawed because, even though
he made some effort to obtain the § 3500 materials, the court reasonably concluded
that he could have first accessed such materials as of December 1, 2009. Evidence
shows that the § 3500 material underlying Trucchio’s § 2255 motion became
reasonably available on December 1, 2009. See Aron, 291 F.3d at 712. Trucchio’s
conversations with friends and family during the relevant period of time and his
ability to retain Ginsberg as his counsel demonstrated that he had the resources and
knowledge necessary to discover that the Gotti protective order would terminate
upon the discharge of the Gotti jury. Notably, because Trucchio’s lawyer,
Ginsberg, had been participating on the Gotti defense team, Ginsberg would have
known, and easily could have communicated if asked, the nature and duration of
the Gotti protective order. Accordingly, the district court did not clearly err in
finding that Trucchio failed to exercise due diligence in discovering the
purportedly “new evidence” underlying his claim.
AFFIRMED.
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