Moya v. USA, No. 1:2012cv07762 - Document 6 (S.D.N.Y. 2012)

Court Description: OPINION AND ORDER. Mr. Moya's motion for reconsideration of the denial of his § 2255 Motion is DENIED. (Signed by Judge Robert P. Patterson on 11/27/2012) Copies Sent By Chambers. (rjm); [*** NOTE: Also docketed in related Criminal Case 10-cr-739-2(RPP), see Doc.#52. ***] Modified on 11/27/2012 (bw).

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UNITED STATES DISTRlCT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------J( GREGORY MOYA, Petitioner, -againstUNITED STATES OF AMERICA, USDCSDNY DOCUIvlENT ELECTRO""llr \ J\.. r y .~"l . ... J.., L \ en '-'D r lL-1J DOC #: I I DATE F{LEri:!!10 1 2--:Jt 12 CIV 7762 (RPP) IOCR 739-2 (RPP) OPINION & ORDER Respondent. ----------------------------------------------------------)( ROBERT P. PATTERSON, JR., U.S.D.J. On May 27, 2011, this Court sentenced Gregory Moya ("Mr. Moya") to serve sixty months imprisonment followed by three years supervised release for participating in a conspiracy to distribute, and possess with intent to distribute, a controlled substance in violation of21 U.S.C. § 846. (See J. in a Criminal Case ("Final J."), May 27,2011, No. 10 CR 739-2, ECF No. 46.) On October 17,2012, Mr. Moya submitted a motion to vacate this sentence pursuant to 28 U.S.C. § 2255. (See Mot. to Vacate, Set Aside, or Correct Sentence ("§ 2255 Mot."), No. 12 CIV 7762, ECF No.1.) This Court denied Mr. Moya's § 2255 Motion on October 26,2012. (See Order Denying Mot. to Vacate, Oct. 26, 2012, No. 12 CIV 7762, ECF No.4.) Mr. Moya now submits a motion for reconsideration of the denial of his § 2255 Motion, specifically requesting that this Court (1) grant him "an opportunity to submit an 'Affirmation'" as to whether the one-year statute of limitations in 28 U.S.c. § 2255 applies to bar his motion to vacate and (2) consider whether he "holds Constitutional rights as to the 'execution of his sentence,' imposed by the Court." (See Mot. for Recons. ("Recons. Mot.") at 4-5, Nov. 19, 2012, No. 12 CIV 7762, ECF No.5.) For the reasons stated below, Mr. Moya's motion for reconsideration is DENIED. \ , 1. Opportunity to Submit an Affirmation As discussed in the Order Denying the Motion to Vacate, Mr. Moya's § 2255 Motion was untimely because it was submitted more than four months after the one-year window for filing a motion to vacate had closed. (See Order at I (discussing 28 U.S.C. § 2255(f)(1 ).) This fatal flaw notwithstanding, the Order Denying the Motion to Vacate also discussed at length why Mr. Moya's § 2255 Motion failed on the merits. (See id. at 2-4.) Given the extent of the discussion in the order, this Court concludes that any "Affirmation" which Mr. Moya might submit would be of no help to Mr. Moya's § 2255 Motion. Mr. Moya's first request is therefore denied. 2. Alleged Due Process Violations in Regard to Execution of Sentence Mr. Moya's second request is also denied. Although this Court is disappointed that Mr. Moya has not received placement in the prison facility location, drug rehabilitation program, or educational and vocational training programs it had recommended, (see Final J. at 2), Mr. Moya has no constitutional right to placement at any particular facility location or in any of these particular programs, see 18 U.S.c. § 3621(b) ("Any order, recommendation, or request by a sentencing court that a convicted person serve a term of imprisonment in a community corrections facility shall have no binding effect on the authority of the Bureau [of Prisons] ... to determine or change the place of imprisonment of that person."); see also United States v. Williams, 65 F.3d 301,307 (2d Cir. 1995) (recognizing that Bureau of Prisons has "sole discretion" to determine location of confinement and placement in a particular treatment program). 2 Accordingly. Mr. Moya's motion for reconsideration of the denial of his § 2255 Motion is DENIED. SO ORDERED. Dated: New York, New York November 27,2012 Robert P. Patterson, Jr. U.S.DJ. Copies of this Order were sent to: The Petitioner Gregory Moya, No. 24-102-265 Federal Correctional Institution P.O. Box 2000 Fort Dix, NY 08640 Retained Counsel for Petitioner Milton H. Florez 40-06 Warren Street Elmhurst, NY 11373 (718) 685-0073 Fax: (718) 685-0077 Email: milton.f1orez@att.net Counsel for the United States Harris Fischman United States Attorney Office, SDNY One Saint Andrew's Plaza New York, NY 10007 (212) 637-2305 Fax: (212) 637-2527 Email: harris.fischman@usdoj.gov 3

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