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BAKIC v. UNITED STATES

July 23, 1997

DAVID S. BAKIC, Petitioner-Defendant against UNITED STATES OF AMERICA,


The opinion of the court was delivered by: MCAVOY

 Before the Court is Petitioner David S. Bakic's motion pursuant to 28 U.S.C. § 2255. Petitioner alleges: (1) he was denied due process when the District Court denied his request at sentencing for a competency hearing pursuant to 18 U.S.C. § 4221(a); (2) he was denied effective assistance of counsel; and, (3) that his conviction under 18 U.S.C. § 924(c)(1) can no longer be supported in light of the Supreme Court's recent decision in Bailey v. United States, 516 U.S. 137, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995). For the reasons set forth below, the Court finds each of these claims to be without merit.

 I. BACKGROUND

 Petitioner David S. Bakic was convicted of using and carrying a firearm in connection with a drug trafficking crime, in violation of 18 U.S.C. § 924(c). After pleading guilty on November 5, 1993, to a single count Information, Petitioner was sentenced on January 28, 1994, in the United States District Court in the Northern District of New York to a statutory required term of 10 years imprisonment. Petitioner waived his right to appeal his conviction and a direct appeal was never pursued.

 In his written plea agreement, Petitioner admitted that he possessed twenty M-11, 9mm, semi-automatic short-barreled carbine rifles, which he attempted to exchange for one-half pound of cocaine and one half-pound of methamphetamine. (T. 3). The investigation of this offense began when FBI Agents, in an unrelated matter, arrested an individual who was later discovered to have traded a quantity of methamphetamine to Petitioner in exchange for an AK-47, semi-automatic rifle. (T. 3). Subsequent investigations revealed that Petitioner had a history of dealing drugs and large quantities of assault weapons. (T. 3).

 In April 1993, the Bureau of Alcohol, Tobacco, and Firearms (ATF), enlisted the help of a confidential informant to arrange a guns-for-drugs exchange between the defendant and a fictitious drug dealer created by ATF Agents. (T. 4). ATF Agents state it was clear from the onset of their investigation Petitioner was interested in the use and sale of cocaine and methamphetamine along with the sale of illegal weapons. (T. 4). On April 12, 1993, the informant approached Petitioner and bought one M-11, 9mm semi-automatic rifle which Petitioner illegally provided with a short barrel. (T. 4). On July 22, 1993, Petitioner sold the informant another M-11, 9mm semi-automatic rifle, this time with an illegally cut down barrel. (T. 4). On August 20, 1993, the guns-for-drugs exchange was planned; Petitioner agreed to trade twenty M-11 rifles with cut down barrels and obliterated serial numbers, two cases of ammunition, and $ 2,250 cash in exchange for one-half pound of methamphetamine and one-half pound of cocaine. (T. 5). Petitioner told the informant that he expected to sell the drugs he obtained from this deal. (T. 4). It was agreed that the informant would take the weapons and trade them for the drugs that were coming from a "New York" connection which in reality was the ATF Agents. (T. 5). On August 24, 1993, shortly after the informant left Petitioner's residence with the weapons, ATF Agents executed a federal search warrant on Petitioner and his property. (T. 5). Petitioner was taken into custody at that time. (T. 5).

 Petitioner pled guilty to the offense of Possession of a Firearm in Relation to Drug Trafficking. 18 U.S.C. § 924 (c)(1). According to 18 U.S.C. § 924(c)(1), whoever, during and in relation to any crime of violence or drug trafficking crime, uses or carries a short-barrelled rifle, shall be sentenced to imprisonment for ten years. There is no other conviction in the present case. Therefore, according to statute, Petitioner was sentenced to ten years imprisonment. 18 U.S.C. § 924(c)(1).

 While Petitioner has pled guilty to the offense, he accepts responsibility for his actions only to a point. While Petitioner admits that he sold the informant two illegally modified rifles, Petitioner disavows responsibility for the guns-for-drugs scheme and instead asserts that the government coerced him. (T. 6). However, the first time Petitioner raised his coercion claim was at his sentencing on January 28, 1994. (Sentencing Minutes, 6-8). Specifically, Petitioner who came into possession of several "hyperthyroid" articles, now speculates that his thyroid condition affected his mental state and caused him to negotiate the guns-for-drugs exchange. (Sentencing Minutes, 8-9). However, upon inquiry by this Court, Petitioner did not dispute his competency at the time he entered his plea of guilty to the § 924(c) charge on November 5, 1993. (Sentencing Minutes, 8). Petitioner's counsel, Richard M. Schwartz, requested a mental competency hearing pursuant to 18 U.S.C. § 4221 at Petitioner's sentencing, but the District Court denied that request.

 A direct appeal was never pursued, and on April 17, 1997, Petitioner proceeded pro se and filed this motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On June 12, 1997 Petitioner amended his § 2255 motion to include an additional claim. Petitioner presents a total of three arguments: (1) he was denied due process when the District Court denied his request at sentencing for a competency hearing pursuant to 18 U.S.C. § 4221(a); (2) he was denied effective assistance of counsel; and, (3) that his conviction under 18 U.S.C. § 924(c)(1) can no longer be supported in light of the Supreme Court's recent decision in Bailey v. United States, 516 U.S. 137, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995).

 II. DISCUSSION

 "Section 2255 of Title 28 U.S.C. provides that a prisoner in custody under sentence of a federal court may file a motion in the 'court which imposed the sentence to vacate, set aside or correct the sentence.'" Hill v. United States, 368 U.S. 424, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962) (quoting 28 U.S.C. § 2255). The statute states four grounds upon which such relief may be granted: (1) that the sentence was imposed in violation of the Constitution or laws of the United States, (2) that the court was without jurisdiction to impose such sentence, (3) that the sentence was in excess of the maximum authorized by law, and (4) that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255.

 However, the Supreme Court has construed these four grounds for relief narrowly, following the general rule that a section 2255 collateral attack is not allowed to "do service for an appeal." Adams v. United States ex rel. McCann, 317 U.S. 269, 274, 87 L. Ed. 268, 63 S. Ct. 236 (1942). Thus, failure to raise a particular claim on direct appeal will generally bar consideration of that claim in a section 2255 motion. See United States v. Frady, 456 U.S. 152, 167, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). In most instances, motions pursuant to section 2255 may be used as a first attempt to litigate an issue only if the issue involves a constitutional error, lack of jurisdiction in the sentencing court, or an error of law amounting to a complete miscarriage of justice. Hardy v. United States, 878 F.2d 94, 97 (2d Cir. 1989). Additionally, a constitutional or jurisdictional claim not raised on direct appeal can only be litigated pursuant to section 2255 as long as there has been no deliberate bypass. See McCleskey v. Zant, 111 S. Ct. 1454, 1478, 499 U.S. 467, 509, 113 L. Ed. 2d 517 (1963) (describing deliberate bypass as "the deliberate abandonment of a claim the factual and legal basis of which are known to Petitioner"). All other types of claims that are not raised earlier are procedurally barred unless Petitioner can show cause for failing to raise the issue, and prejudice resulting therefrom. See Frady, 456 U.S. at 167-168.

 The limitation on section 2255 relief has special force with respect to convictions based on guilty pleas *fn1" that are made voluntarily pursuant to Rule 11 of the Federal Rules of Criminal Procedure. *fn2" Because a guilty plea is itself a conviction, see Kercheval v. United States, 274 U.S. 220, 223, 71 L. Ed. 1009, 47 S. Ct. 582 (1927), the Second Circuit has established that a voluntary plea of guilty forecloses a subsequent collateral attack on the judgment when the attack is based upon the alleged deprivation at some earlier stage in the proceeding. See United States v. Lombardozzi, 436 F.2d 878 (1971) (denying defendant's motion to withdraw guilty plea when plea was not involuntary in light of defendant's sophistication and intelligence); United States v. Miller, 254 F.2d 523 (1958) (denying defendant's motion to withdraw guilty plea of income tax evasion when plea was made voluntarily). But see United States ex rel. Codarre v. Gilligan, 363 F.2d 961 (1966) (granting defendant's ...


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