The opinion of the court was delivered by: THOMAS J. MCAVOY
On November 23, 1992 the petitioner, John Andrew Graves, (hereinafter "Graves") appeared before this court and pled guilty to conspiracy to transport and receive stolen goods through interstate commerce in violation of 18 U.S.C. §§ 371, 2314-15. This plea was entered pursuant to an agreement between Graves and the government, whereby Graves would plead guilty to the first count of a three count Indictment, in return for the remaining two counts being dismissed at sentencing. On March 19, 1993 Graves was sentenced to 30 months imprisonment to be followed by 24 months supervised release and, furthermore, was ordered to make restitution jointly and severally with his co-conspirators. In accordance with the terms of the written plea agreement, Counts Two and Three of the Indictment (transporting stolen goods through interstate commerce in violation of 18 U.S.C. § 2314, and possession and transportation of stolen goods through interstate commerce in violation of 18 U.S.C. §§ 2, 2315, respectively), were dismissed. Graves is currently incarcerated at F.C.I.-Petersburg in Virginia.
On May 3, 1994 Graves initiated this action to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. In support of this motion, Graves alleges, generally, prosecutorial misconduct and ineffective assistance of counsel. For the reasons stated below, this court finds that Graves is procedurally barred from raising claims regarding prosecutorial misconduct. Furthermore, the court finds Graves' allegation of ineffective counsel to be without merit.
A. Collateral Attack based on Prosecutorial Misconduct.
Both society and this court have a strong and legitimate interest in the finality of judgments. Once a defendant has been given a fair opportunity to present his claims in a federal forum, "we are entitled to presume he stands fairly and finally convicted." United States v. Frady, 456 U.S. 152, 164, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). Because of society's interest in the finality of judgments, a prisoner must clear a significantly higher hurdle in a collateral attack than would exist on direct appeal. Id. at 166. This interest in finality is especially strong when the conviction is based on a guilty plea. Lucas v. United States, 963 F.2d 8, 14 (2d Cir. 1992), cert. denied, 121 L. Ed. 2d 199, 113 S. Ct. 270 (1992), (quoting United States v. Timmreck, 441 U.S. 780, 784, 60 L. Ed. 2d 634, 99 S. Ct. 2085 (1979)). After a guilty plea, the petitioner is limited to challenging only the knowing and voluntary character of the plea. Baker v. United States, 781 F.2d 85, 88 (6th Cir. 1986) cert. denied, 479 U.S. 1017, 93 L. Ed. 2d 719, 107 S. Ct. 667 (1986). In this regard, it is well established that, under some conditions, prosecutorial threats, misrepresentations, or improper promises may challenge the voluntary and intelligent nature of the plea. United States v. Wright, 43 F.3d 491, 1994 WL 698995, at *4 (10th Cir. 1994) (quoting Bradbury v. Wainwright, 658 F.2d 1083, 1086 (5th Cir. 1981), cert. denied, 456 U.S. 992, 102 S. Ct. 2275, 73 L. Ed. 2d 1288 (1982)).
In the case at bar, Graves alleges four specific instances of prosecutorial misconduct which he claims made his guilty Plea involuntary: first, that the prosecutor used evidence obtained in an illegal search and seizure to coerce the petitioner to enter a guilty plea; second, that the prosecutor provided the court with a false criminal history on the petitioner, which improperly caused the court to increase petitioner's bail; third, that the prosecutor withheld tape recordings that would have revealed that the petitioner's confession was made while he was intoxicated; and fourth, that the prosecutor withheld statements made by petitioner's co-conspirators which would have revealed that the petitioner played a relatively minor role in the conspiracy. These four allegations are taken in seriatim.
It is well established that claims of "invalid search [and] illegal seizure of evidence . . . are disposed of by [a] guilty plea" and cannot be raised on collateral attack unless the petitioner can meet the "cause and prejudice" test. United States v. Salzano, 241 F.2d 849, 849 (2d Cir. 1957); see Campino v. United States, 968 F.2d 187, 189-90 (2d Cir. 1992); United States v. Rodriguez, 444 F. Supp. 163, 164 (S.D.N.Y. 1978). More specifically, the petitioner is procedurally barred from bringing his Fourth Amendment claim on a 2255 motion unless he is able to show both cause for his failure to raise such a claim at the initial proceeding and prejudice from the alleged error. Fiumara v. United States, 727 F.2d 209 (2d Cir. 1984), cert. denied, 466 U.S. 951, 80 L. Ed. 2d 540, 104 S. Ct. 2154 (1984).
In reviewing the papers submitted, it is plain that Graves did possess knowledge of the alleged illegal search and seizure at the time of the initial proceeding. It is therefore important that he be able to show cause to explain for his failure to challenge such claim at that time. Graves has failed to do so, and thus, the said claim is procedurally barred and is dismissed.
2) False criminal history
The petitioner's second claim of excessive bail also fails on procedural grounds because it is now well recognized that errors regarding excessive bail are "not cognizable in a section 2255 action." Kett v. ...