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UNITED STATES v. BERGER

July 14, 1993

UNITED STATES OF AMERICA,
v.
ALLEN BERGER, Defendant. ALLEN BERGER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: ROBERT W. SWEET

 Sweet, D.J.

 The petitioner Allen Berger ("Berger") seeks to have his sentence modified pursuant to 28 U.S.C. § 2255. Berger's petition is hereby denied for the reasons set forth below.

 Facts and Procedural History

 On October 11, 1985, Berger pleaded guilty to Count One of Indictment 85 Cr. 824 (RWS), which charged him with possession of cocaine with intent to distribute. On February 28, 1986, this Court sentenced him to a term of two-and-one-half-years' imprisonment, a five-year special parole term and payment of a $ 50.00 assessment.

 Berger indicates that he served 21 1/2 months of his prison sentence before being released to begin his special parole term. Berger subsequently violated his special parole on several occasions. *fn1" As a result of those violations, according to the Government, Berger has been incarcerated by order of the Parole Commission on two occasions and recently has been admitted to an in-patient drug treatment program at the direction of his supervising parole officer.

 Berger brings the present petition, seeking a modification of his 1986 sentence, on two grounds: first, that he was not advised that a five-year special parole term was possible because the pre-sentence investigation report stated that the mandatory minimum special parole term was three years; and second, that the alleged failure of his counsel to advise him of the differences between ordinary and special parole rendered his attorney's performance constitutionally ineffective.

 Berger brought this petition by letter dated March 31, 1993. The letter was originally treated as a motion to vacate Berger's sentence under the caption and case number, United States v. Berger, 85 Cr. 0824 (RWS), and on May 6, the Government was ordered to reply. A separate copy of the letter was sent to the Pro Se Office which filed the letter as a new action under the caption and case number, Berger v. United States, 93 Civ. 3419. On June 8, 1993, the Government was again ordered to reply. The Government responded to both orders on June 14, 1993, and the matter was taken on submission as of that date.

 DISCUSSION

 1. Berger Has Failed To State A § 2255 Claim

 It is well settled that § 2255 provides a remedy only for defects which are constitutional, jurisdictional, or in some other respect fundamental. See United States v. Addonizio, 442 U.S. 178, 185, 60 L. Ed. 2d 805, 99 S. Ct. 2235 (1979); Davis v. United States, 417 U.S. 333, 346, 41 L. Ed. 2d 109, 94 S. Ct. 2298 (1974); Reilly v. Warden, FCI Petersburg, 947 F.2d 43, 44 (2d Cir. 1991), cert. denied, 117 L. Ed. 2d 462, 112 S. Ct. 1227 (1992). *fn2" As the Second Circuit held in United States v. Wright, 524 F.2d 1100, 1101 (2d Cir. 1975): "Not every error of law may be successfully asserted in proceedings under [§ 2255]; the error must be a fundamental one which inherently results in a complete miscarriage of justice." Accord Grimes v. United States, 607 F.2d 6, 10 (2d Cir. 1979); Howard v. United States, 580 F.2d 716, 720 (5th Cir. 1978).

 The Supreme Court has held that a court's alleged violation of a procedural rule in the course of taking a plea or imposing sentence is not properly raised in a § 2255 proceeding. See Hill v. United States, 368 U.S. 424, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962), is squarely on point. In Hill, the defendant filed a § 2255 motion claiming that the sentencing judge had failed to comply with Rule 32(a)(1)(C), which provides that a defendant must be accorded an opportunity to speak on his own behalf before sentence is imposed. The Supreme Court held that an alleged failure to follow the formal requirements of Rule 32 was not a claim that could be raised by collateral attack under § 2255. 368 U.S. at 426. As the Court explained, the alleged error was "neither jurisdictional nor constitutional," nor "a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure." Id. at 428. For similar reasons, the Supreme Court in United States v. Timmreck, 441 U.S. 780, 60 L. Ed. 2d 634, 99 S. Ct. 2085 (1979), held that an alleged violation of Rule 11 during the taking of defendant's guilty plea was not a claim which could be raised in a 2255 motion.

 Thus, even had it been true that the Court failed to comply with Fed. R. Crim. P. 11(c) in advising Berger of the possibility that he could be sentenced to five years' supervised release, which was not the case, a ...


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