did not argue that his plea was unknowing or involuntary, he waived any rights to challenge his guilty plea on a non-jurisdictional basis.
In addition, at the pleading, the court explained to Plaintiff his options as well as the rights he would be waiving should he plead guilty. In fact, he was asked by the Court if he had in fact committed all of the crimes to which he was pleading guilty. Plaintiff told the story in his own words and stated that he accepted the prosecutor's version, that he had not been threatened or coerced, and that he had discussed the case with his attorney. At no point in the pleading did he say that he was not guilty. Moreover, at his sentencing, Plaintiff apologized to the Court "for the mistake that [he] committed." If Plaintiff had concerns, he should have raised these concerns previously.
B. Statute of Limitations
Defendants correctly point out that the statute of limitations for Bivens and § 1983 claims in New York is three years. See Lombard v. Board of Educ., 784 F. Supp. 1029, 1036, 1045 (E.D.N.Y. 1992); Chin v. Bowen, 833 F.2d 21, 23-24 (2d Cir. 1987). The acts complained of occurred in 1986 and 1987 but Plaintiff did not filed this suit until 1993, a full six years after the last act alleged. Although Plaintiff contends that the conspiracy extended until 1990, he has provided this Court with no evidence to indicate this. Indeed, the Complaint only details those events that occurred in 1986. This Court cannot permit a claim that fails to provide specific allegations so as to place the other side on notice. See Alfaro Motors Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
Furthermore, Defendant Class has pointed to the fact that at no place in the Complaint is he ever specifically referred to. Class argues that a civil rights complaint must allege that a defendant committed at least one specific wrongful act and that where a complaint fails to do so, the action must be dismissed as against that defendant. Accordingly, the Complaint is dismissed as against Defendant Class for failure to state a claim.
C. Claims Against the Defense Attorneys
Plaintiff has stated that his attorneys Willis and Hussain
are part of the conspiracy to deprive him of his civil rights. He alleges that they attempted to induce him to plead guilty as they were working for the government. As with the other § 1983 claims, these claims are barred by the statute of limitations.
It is possible that these claims could be liberally construed as ineffective assistance of counsel, but the statute of limitations has also run on that claim. See CITE. Moreover, this Court is without jurisdiction to hear such claims against Defendants Willis and Beltre who were involved in the state proceeding. Such claims would have to be brought in the state system and only after exhaustion of those remedies could a claim be brought in this court under 28 U.S.C. § 2254.
Even if Plaintiff's claim Plaintiff's claim against Willis is liberally construed as being under 28 U.S.C. § 2254, Plaintiff's claim fails. In order to prove that he was unconstitutionally denied effective assistance of counsel, Plaintiff must demonstrate both that the "representation fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); United States v. Reiter, 897 F.2d 639, 645 (2d Cir.), cert. denied, 498 U.S. 817, 112 L. Ed. 2d 34, 111 S. Ct. 59 (1990). Petitioner must show that 1) counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment and 2) these errors "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687.
Plaintiff has failed to satisfy the standard set out by Strickland. Plaintiff claims that he was deceived by his attorney who was allegedly actually working for the United States government. He claims that to have been coerced but his plea and sentencing belie this and he provides this Court with no specific allegations.
II. Tort Claims
Plaintiff's complaint seeks damages for the tortious conduct of the Defendants. 28 U.S.C. § 2679(b) provides the exclusive remedy for such suits. Rivera v. United States, 928 F.2d 592, 608 (2d Cir. 1991). The Federal Tort Claims Act ("FCTA"), however, only permits such suits to be brought against the United States, federal employees must be dismissed from such actions. Id. The United States has submitted the certification as required under 28 U.S.C. § 2679(d)(1) that the Defendants were acting within the scope of their employment. See McHugh v. University of Vermont, 966 F.2d 67, 74 (2d Cir. 1992). Accordingly, the United States is hereby substituted as a defendant for Defendants Guzman, Murphy, and Class.
Under the FTCA, tort claims must be filed with the appropriate federal agency prior to instituting a tort action in federal district court. McNeil v. United States, 124 L. Ed. 2d 21, 113 S. Ct. 1980, 1984 (1993) (upholding the dismissal of a pro se complaint for failure to exhaust administrative remedies); Keene Corp. v. United States, 700 F.2d 836, 840 (2d Cir.), cert. denied, 464 U.S. 864, 78 L. Ed. 2d 171, 104 S. Ct. 195 (1983). In the case at bar, Defendant has provided this Court with affidavits from DEA counsel that indicate that Plaintiff failed to file his claim with the DEA. Accordingly, the tort claims are hereby dismissed.
III. Declaratory Relief
Plaintiff seeks a declaratory judgment, pursuant to 28 U.S.C. §§ 2201 and 2202, that his convictions were improper as they resulted from violations of his civil rights. It is a well established rule of law that such relief is not available to attack a federal or state conviction. Johnson v. Onion, 761 F.2d 224, 226 (5th Cir. 1985); Sperl v. Deukmejian, 642 F.2d 1154, 1155 (9th Cir. 1981). Accordingly, Plaintiff's claim is dismissed.
For the reasons stated above, the Plaintiff's claims are dismissed.
Sterling Johnson, Jr.
Brooklyn, New York
September 20, 1994