The opinion of the court was delivered by: ARTHUR D. SPATT
On October 11, 1991, the defendant Paul C. Chartier was re-sentenced by this Court to a term of imprisonment of 236 months, with credit for time served since January 30, 1989. The defendant appealed this sentence to the Court of Appeals for the Second Circuit and the sentence was affirmed (See United States v. Chartier, 970 F.2d 1009 [2d Cir. 1992]). Now, the defendant moves pursuant to 28 U.S.C. § 2255 for a Order vacating the sentence of 236 months or, in the alternative, granting the defendant another Fatico hearing. The basis for this motion is the addition of Application Note 9 to United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") Section 1B1.3, effective November 1, 1992, which provides a definition of "common scheme or plan" which was neither available to this Court at the time of the Fatico hearing nor to the Second Circuit at the time of appeal.
Since the facts of this case are well known to the Court and the parties, the Court will not restate them, except as is needed to address the defendant's motion.
Availability of Section 2255 Petition:
The granting of a federal writ of habeas corpus is governed by 28 U.S.C. § 2255 which provides, in relevant part, that:
"A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence" (28 U.S.C. § 2255).
In addressing the ability of a criminal defendant to make a motion pursuant to 28 U.S.C. § 2255 after an appeal, the Second Circuit stated that:
"While section 2255 does not expressly authorize the court to refuse to entertain an otherwise appropriate section 2255 petition on the ground that the point raised [in the habeas petition] had previously been decided on direct appeal, numerous cases have held that section 2255 may not be employed to relitigate questions which were raised and considered on direct appeal. Several of these are from our circuit. [citations omitted] . . . While this rule may not apply in certain circumstances, e.g., where the issues were not raised on direct appeal due to ineffective assistance of counsel, see Dozier v. United States District Court, 656 F.2d 990, 992 (5th Cir. 1981), or where an intervening change of law occurred, United States v. Loschiavo, 531 F.2d 659, 662-66 (2d Cir. 1976), such circumstances are not presented here" ( Barton v. United States, 791 F.2d 265, 267 [2d Cir. 1986] [emphasis-added]).
Recently, the Second Circuit reiterated the rule that "[a] § 2255 petition may not be used as a substitute for direct appeal" ( Marone v. United States, 10 F.3d 65, 67 [2d Cir. 1993] [citing United States v. Frady, 456 U.S. 152, 165, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982)]).
After this Court found that the four robberies were not part of a common scheme or plan and the defendant was resentenced, the Second Circuit affirmed both the determination that there was no common scheme or plan as well as the new sentence imposed ( United States v. Chartier, 970 F.2d 1009 [2d Cir. 1992]). Both appeals squarely addressed the issue about whether the defendant Chartier's four robberies in 1974 were part of a common scheme or plan.
The defendant Chartier now moves pursuant to Section 2255, once again based on the assertion that his actions in 1974 were part of a common scheme or plan. Since "section 2255 may not be employed to relitigate questions which were raised and considered on direct appeal" ( Barton, supra, 791 F.2d at p. 267), the Court may not consider this motion, unless the Section 2255 motion is based on: (1) an ineffective assistance of counsel claim; or (2) an intervening change of law (See Barton, supra, 791 F.2d at p. 267). The Court finds that neither of these exceptions are present in this case.
Chartier does not assert an ineffective assistance of counsel claim, and further expressly states that the definition of the term "common scheme or plan," as set forth in Application Note 9 to Guidelines Section 1B1.3, "do[es] not constitute a substantive change in the law. The substantive law is therefore no different, just more clearly defined" (Defendant's Memorandum of Law, at p. 11 [emphasis added]). Accordingly, since the defendant does not raise either an ineffective assistance of counsel claim or that there was an intervening change in the law, the Court may not consider a petition by Chartier, pursuant to 28 U.S.C. § 2255, based upon the assertion that the robberies committed in 1974 were not part of a common scheme or plan (See Barton, supra, 791 F.2d at p. 267).
Further, in addressing the application of a new rule retroactively, the Supreme Court has stated that "when this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule" ( Harper v. Virginia Dep't of Taxation, 125 L. Ed. 2d 74, 113 S. Ct. 2510, 2517  [emphasis added]). Here, since this case is not "still open on direct review" and only before the Court on a petition for a writ of habeas corpus, a collateral review, the Court cannot apply a new interpretation of "common scheme or plan" to this review.
However, in the interest of completing the record, the Court will address the merits of the defendant's contentions in this petition with regard to the issue of a "common scheme or plan."
In sentencing the defendant Chartier, the Court was required to determine whether he was a career offender, within the meaning of Guidelines Section 4B1.1 which states the following:
"A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense . . ." (U.S.S.G. § 4B1.1).
According to the definitions supplied in this section of the Guidelines, the term "two prior felony convictions" means:
The standard for determining whether prior felony convictions are "counted separately" is set forth in Guidelines Section 4A1.2(a)(2) which states that:
"Prior sentences imposed in unrelated cases are to be counted separately. Prior sentences imposed in related cases are to be treated as one sentence for purposes of criminal history . . ." (U.S.S.G. § 4A1.2[a] [emphasis added]).
The commentary defines "related cases" as follows: "Cases are considered related if they (1) occurred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing" (U.S.S.G. § 4A1.2, Application Note 3 ["Related Cases"]). It was the contention of the defendant Chartier, at sentencing, that a number of his prior robberies should be considered part of a "single common scheme or plan" for purposes of determining whether he was a career offender.
The Court conducted a Fatico hearing and made factual findings on the issue of whether the four robberies committed in 1974 were part of a "single common scheme or plan". The findings were set forth in the Court's October 11, 1991 written decision, and include the following:
"Considering all of the circumstances of the four prior armed robbery felony convictions, this Court finds that the four prior felony convictions were not 'related' within the meaning of the Sentencing Guidelines.
First, all four robberies, three in New York, one in Massachusetts, were charged in separate indictments, and there was no charge of conspiracy linking any of these substantive offenses. Further, the state authorities never joined ...