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UNITED STATES v. WEISS

October 31, 1995

UNITED STATES
v.
FRANK WEISS, Defendant-Appellant.



The opinion of the court was delivered by: MCAVOY

 I. INTRODUCTION

 Appellant Frank Weiss ("Appellant") appeals from a magistrate's order denying his Motion to Vacate Conviction. For the reasons set forth below, this Court agrees with the magistrate judge and affirms his order.

 II. FACTS

 In December, 1992, Appellant, a Canadian citizen with professed substantial property interests in the United States, unsuccessfully attempted to bring an unauthorized alien across the border, in violation of 8 U.S.C. § 1324(a)(2). After his arrest, Appellant appeared pro se before a magistrate on December 15, 1992 and entered a plea of guilty. The magistrate judge imposed a sentence of two days imprisonment (already served on December 14 and 15, 1992), a fine of $ 225.00, and a special assessment of $ 25.00. As a result of the conviction, Appellant has been and will be forever barred from re-entering the United States. The records from this plea proceeding were subsequently lost during a relocation of the Clerk's Office.

 On May 10, 1994, Appellant moved to vacate his conviction, arguing that he had entered his guilty plea unknowingly and involuntarily because he had not been informed of the collateral civil consequences that attached to his conviction. In an order dated November 23, 1994, the magistrate judge treated the motion as one made pursuant to 28 U.S.C. § 2255. The magistrate judge denied relief, reasoning that Appellant had not demonstrated cause and prejudice that would excuse Appellant's failure to previously raise the issues on direct appeal. Appellant now seeks review of the magistrate judge's decision, arguing first, that cause and prejudice had been established, and second, that the magistrate judge should have held a fact-finding hearing to reconstruct the record lost by the Clerk's Office.

 III. ANALYSIS

 A. Standard of Review

 In reviewing Appellant's claims, this Court shall not merely defer to the judgment of the magistrate judge, but will instead reach its own independent conclusions. This Court shall review Appellant's 8 U.S.C. § 2255 motion de novo. Lebowitz v. United States, 877 F.2d 207, 210 (2d Cir. 1989).

 B. Absence of Record

 Appellant claims that because the record of his 1992 plea proceedings were lost by the Clerk's Office, the magistrate judge should have conducted a fact-finding hearing to determine whether the plea was entered knowingly and voluntarily. In essence, Appellant contends that the parties, in a court-supervised proceeding, should be permitted to reconstruct the missing record. This Court declines to provide Appellant such an opportunity.

 Court reporter's notes were similarly "lost . . ., thus eliminating any exact record of what transpired," in United States v. Darnell, 716 F.2d 479 (7th Cir. 1983), cert. denied, 465 U.S. 1083, 79 L. Ed. 2d 771, 104 S. Ct. 1454, reh'g denied, 466 U.S. 946, 80 L. Ed. 2d 479, 104 S. Ct. 1935 (1984). Recognizing that "the government's ability to meet successfully the allegations of the motion . . . may be greatly diminished by the passage of time," the Seventh Circuit reasoned that any attempt to proceed without the record would "prejudice[] the government in its ability to establish the voluntariness of [movant's] plea of guilty." Id. at 480-81. Although the time interval separating the sentencing hearing from the motion to vacate in Darnell is much longer than that in Appellant's case, this Court finds the court of appeals' argument compelling as applied to the case-at-bar. Moreover, the Record on Appeal submitted by Appellant provides sufficient documentation of the events preceding and contemporaneous to the plea proceedings of December 15, 1992 from which this Court may reach a proper determination. For these reasons, this Court rejects Appellant's claim that a fact-finding hearing is necessary to reach a proper determination of the issues in dispute.

 C. Relief Under 28 U.S.C. ...


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