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STIER v. UNITED STATES

December 1, 1994

ALEX STIER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: THOMAS J. MCAVOY

 I. BACKGROUND

 On January 13, 1994 defendant Alex Stier (hereinafter "Stier") in an appearance before this court pled guilty to a one count criminal information in which he was charged with conspiracy to commit bank fraud pursuant to 18 U.S.C. § 1344. On May 24, 1993, Stier was sentenced to 15 months incarceration, 24 months supervised release and restitution of $ 765,637.30 for which he is jointly and severally liable. To date, Stier has served the period of incarceration and is participating in a work release program.

 On September 8, 1993, Stier initiated this action pursuant to 28 U.S.C. § 2255 contending inter alia that the amount of financial loss attributed to him was erroneous and failed to consider reparations already made. It is further argued that the Presentence Report (hereinafter "PSR") was calculated incorrectly and deprived him of a credit for acceptance of responsibility, that the restitution ordered was unlawful because damages attributed to Stier were in excess of losses which could be reasonably expected in light of his participation, and that he was denied effective assistance of counsel since mental health issues where never raised as a defense or mitigating factor.

 For the reasons stated below, this court finds that Stier is procedurally barred from raising issues in this motion which could have been brought in the initial proceedings. Furthermore, the court finds Stier's allegation of ineffective representation to be incongruous with the record to date. As a result the this motion pursuant to § 2255 is denied.

 II. DISCUSSION

 A. Collateral Attack on the Imposed Sentence

 A motion under 28 U.S.C. § 2255 offers relief in the form of collateral attack to prisoners under a sentence in excess of that which is authorized. Stier attacks his sentence alleging that errors occurred which have adversely effected the calculation of his sentence. However, none of these issues was raised during the initial proceedings, or on appeal (since no direct appeal of sentence was ever made).

 It is well established law that failure to raise an issue during judicial proceedings bars a litigant from raising that same issue at a subsequent proceeding absent a showing of cause excusing the initial default and actual prejudice which results therefrom. See Fiumara v. United States, 727 F.2d 209 (2d Cir.), cert. denied, 466 U.S. 951, 104 S. Ct. 2154, 80 L. Ed. 2d 540 (1984). In Fiumara it was held that a failure to move to suppress evidence in a criminal proceeding, prior to trial, operated as a procedural bar, preventing plaintiff from further attack without a demonstration of cause and prejudice. Thus evolved the cause and prejudice test.

 In applying this test, the Second Circuit has held that "procedural default of even a constitutional issue will bar review under § 2255 unless the defendant can meet the cause and prejudice test." Campino v. U.S., 968 F.2d 187, 190 (2d Cir. 1992). This is also true for litigants who seek direct appeals since a "failure to raise a claim on direct appeal is itself a default of normal appellate procedure, which a defendant can overcome only by showing cause and prejudice." Id. Furthermore, in subsequent proceedings if a litigant does not demonstrate sufficient cause for the default of said issue, the court need not determine whether the litigant was prejudiced. Billy-Eko v. U.S., 968 F.2d 281, 283 (2d Cir. 1992).

 Defendant Stier failed to raise any of the allegations now made at any prior proceedings and has failed to attack the sentence via direct appeal. No explanation has been offered in an attempt to demonstrate cause for this omission. His only attack comes via this action, which is inappropriate since § 2255 motions are not a vehicle for direct appeal.

 This conclusion finds support in various statements made by Stier in which he indicates no history of mental illness. First in the Presentence Report, Stier indicates no mental disability. (PSR at 9). At Stier's plea allocution when asked by this court if he was, or had recently been, under the care of a psychiatrist for a mental condition, Stier answered that he was not. (Tr. Pl. Alloc. 1/13/93 at 4). Finally, in his own papers Stier indicates that he suffers from no psychological problems. Upon being referred to the psychologist at the Federal Prison Camp in which Stier was incarcerated due to repeated medical complaints, Stier stated he "has a medical problem, not a psychological problem." (Motion For Release on Bail Pending Consideration of 28 U.S.C. § 2255 Motion, Exhibit A-6).

 A similar analysis is in order for the remaining allegations of erroneous calculation of restitution and improper calculation of sentence level. Stier was asked directly by this court if he had and factual disagreements with the sentencing report and after consultation with counsel, Stier replied "It's fine sir." (Tr. Pl. Alloc. 5/24/93 at 3). Since these issues were not raised during the ...


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