
    UNITED STATES of America, v. Manuel CINTRON, Defendant.
    Criminal Action No. 07-10409-NMG
    United States District Court, D. Massachusetts.
    Signed 12/28/2017
    Peter K. Levitt, Christopher J. Pohl, United States Attorney’s Office, Boston, MA, for United States of America.
    
      Jessica Diane Hedges, Hedges -& Tum-posky, Boston, MA, for Defendant.
   MEMORANDUM & ORDER

Nathaniel M. Gorton, United States District Judge

In August, 2015, this Court dismissed the habeas petition of Manuel Cintron (“Cintron” or “defendant”). In December, 2017, the First Circuit Court of Appeals directed this Court to' issue or deny a certificate of appealability with -respect to his petition. For the following reasons, this Court will deny such a certifícate.

I. Background

In June, 2009, defendant pled guilty to a two-count indictment charging him with conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). In December, 2009, the Court sentenced defendant to a term of imprisonment of 158 months followed by six years of supervised release. Defendant appealed his sentence to the First Circuit Court of Appeals, cohtending that it was substan•tively unreasonable. In November, 2010, the First Circuit granted the government’s motion for summary disposition, affirming the judgment of this Court. In December, 2013, Cintron filed a motion to withdraw his plea of guilty which this Court denied in February, 2014.

In May, 2015, Cintron filed a habeas petition pursuant to 28 U.S.C. § 2255 challenging his conviction and sentence on grounds of newly discovered evidence. Specifically, Cintron alleged that the investigation of the “Hinton Laboratory Scandal” was still underway and that the government had failed to produce “all discovery of defendants] that have been affected”. The government opposed that petition, cpptending that the § 2255 petition was time-barred and that the doctrine of equitable tolling did not apply. The government also suggested that the § 2255 petition failed op its merits because (1) the defendant was sentenced as a career offender and not based upon drug weight and (2) chemist Annie Dookhan was the “secondary” on only two of the six drug certifications in the case.

In August, 2015, this Court entered an order denying the § 2255 petition “[b]e-cause the petition is time barred and also' because it fails on the merits”. Cintron filed his notice of appeal in October, 2015 and a motion to appoint counsel in February, 2016. Oh December 26, 2017, the First Circuit requested that this Court promptly issue or deny a certificate of appealability.

II. Legal Analysis c

A. Standard

Section 2253(c) of Title 28 of the United States Code provides that a Certificate of Appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to make a “substantial showing,” a petitioner seeking a Certificate of Appealability must demonstrate that

reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.

Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To meet the debatable-among-jurists-of-reason standard the petitioner must prove “something more than the absence of frivolity or the existence of mere good faith.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

B. Application

Cintron fails to demonstrate that “reasonable jurists could debate” whether his petition for writ of habeas corpus should have been decided differently. Slack, 529 U.S. at 484, 120 S.Ct, 1595. First, Cintron’s petition is time-barréd by the one-year statute of limitations. 28 U.S.C. § 2255(f). Cintron’s petition relies on the misconduct of Annie Dookhan at the Hinton State Laboratory Institute but he failed to file his petition within one year of discovering that evidence. The doctrine of equitable tolling does not apply here because Cintron.does not provide any factual allegations supporting his claim that the government withheld discovery related to the Hinton Laboratory scandal. See Trenkler v. United States, 268 F.3d 16, 25 (1st Cir. 2001) (stating that equitable tolling is reserved for “exceptional cases” and not where the claimant “simply failed to exercise due diligence in preserving his legal rights”). Furthermore, Cintron’s petition fails on the merits. Dookhan was involved in only two of the six drug certifications in this case and even if the Court were to exclude the drug weight of those two convictions, the relevant guideline range would remain the same.

Accordingly, the motion for a certificate of appealability with respect to the Cin-tron’s habeas petition will be denied.

ORDER

In accordance with the foregoing, petitioner’s motion for a Certificate of Appeal-ability is DENIED..

So ordered.  