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MACON v. UNITED STATES

June 24, 1996

ALBERT MACON, JR., Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: MCKENNA

 McKenna, D.J.

 On March 30, 1982, Plaintiff pro se Albert Macon was found guilty of conspiracy to commit armed and unarmed bank robberies, committing armed and unarmed bank robberies, and unlawful receipt and possession of an unregistered sawed-off shotgun. On May 3, 1982, Judge Stewart, of the Southern District of New York, sentenced Macon to concurrent prison terms of five and fifteen years. Macon appealed, and the Second Circuit affirmed his conviction. Macon v. United States, 714 F.2d 118, slip op. at 2-3 (2d Cir. 1982), result reported at 714 F.2d 118 (2d Cir. 1982), cert. denied, 459 U.S. 1218, 75 L. Ed. 2d 458, 103 S. Ct. 1222 (1983).

 Alleging violations of Fed. R. Crim. P. 32, due process violations, and ineffective assistance of counsel, Macon now seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. ยง 2255. For the reasons below, Macon's motion is denied.

 I. Discussion

 A. Due Process

 Macon claims that the alleged Rule 32 violations constituted a denial due process rights. Specifically, Macon claims that his sentence and the conditions of his release and parole were based on false information in his presentence investigation report ("PSI.") This claim is not properly before the Court. Macon is barred from arguing, in a Section 2255 proceeding, that his due process right were violated because his sentence was based on inaccurate information in his PSI. This argument has already been raised and rejected by the Second Circuit on direct appeal. Macon, slip op. at 2-3; see also Ritchin Aff., Ex. B at 39-47. In a Section 2255 proceeding, a petitioner may not relitigate issues that have been raised and considered on direct appeal. Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995); Douglas v. United States, 13 F.3d 43, 46-47 (2d Cir. 1993); Lobuglio v. United States, 1996 U.S. Dist. LEXIS 2724, No. 95- Civ-2789, 1996 WL 103842, at *1 (S.D.N.Y. Mar. 8, 1996).

 B. Rule 32

 Generally, without a showing of cause for failure to raise issues on direct appeal and prejudice resulting therefrom, a petitioner may not present issues in a Section 2255 proceeding that were not raised on direct appeal. United States v. Frady, 456 U.S. 152, 167-68, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982); Campino v. United States, 968 F.2d 187, 189 (2d Cir. 1992); Parks v. United States, 832 F.2d 1244, 1246 (11 Cir. 1987) (dealing specifically with an alleged Rule 32(c)(3)(D) violation). Macon alleges no cause for failure to raise his Rule 32 claims on direct appeal. Assuming, arguendo, that Macon could show cause for failure to have raise these claims on direct appeal, his claims would fail on the merits.

 Macon alleges two violations of Fed. R. Crim. P. 32(c)(3)(D), and one violation of Fed. R. Crim. P. 32(c)(3)(A). He first alleges that the sentencing court violated the rule when it failed to either resolve disputed issues of fact in Macon's PSI, or make a determination that no such finding was necessary pursuant to Fed. R. Crim. P. 32(c)(3)(D) because controverted matters would not be taken into account in sentencing. Second, he claims that the sentencing court erred when it did not append to Macon's PSI a written record of the findings made as to matters of controverted fact that were relied upon during sentencing. Macon further claims that the sentencing court violated Rule 32(c)(3)(A) when it failed to give him adequate time to review and discuss the alleged inaccuracies in his PSI.

 For offenses committed prior to Nov. 1, 1987, Fed. R. Crim. P. 32(c)(3)(D) provides, in relevant part:

 
If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission.

 This section, however, did not exist at the time Macon was sentenced. It was a new subsection added by an amendment of April 28, 1983, and did not become effective until August 1, 1983. Mikolon v. United States, 844 F.2d 456, 459 n.3 (7th Cir. 1988). The amended rule is not retroactive. Id. at 459.

 Even if the Rule had been in effect at the time of Macon's sentencing, Judge Stewart's factual findings were sufficient to satisfy Rule 32(c)(3)(D). Before sentence was imposed, Macon pointed out several inaccuracies in his PSI during the sentencing proceeding. Judge Stewart listened to Macon's ...


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