the Second Circuit. See United States v. Neff, 94-1323 (2d Cir. Sep. 7, 1994) ("Summary affirmance upon filing of Anders brief").
The second claim raised by the petitioner, namely, that the court should have applied the "crime of violence" enhancement rather than the "violent felony" enhancement to his sentence, has previously been denied. Attempted burglary meets the definitions of both a "crime of violence" under "U.S.S.G." § 4B1.2 and a "violent felony" under 18 U.S.C. § 924(e). (Anders brief at 13 n.9).
Furthermore, the petitioner's third argument, that an attempted burglary conviction does not constitute a crime of violence, was also denied. The Guidelines specifically define the attempted burglary of a "dwelling" as a crime of violence. See U.S.S.G. § 2k2.1, Applic. n.5; 4b1.2, Applic. n.1 (stating that the term "crime of violence" includes the "attempt to commit such offense"). Further the Second Circuit has specifically held that attempted burglary is a violent felony under 18 U.S.C. § 924(e), because burglary inherently involves a risk of injury to a person who may be in or who may enter the targeted building during the commission of the crime. United States v. Andrello, 9 F.3d 247 (2d Cir. 1993), cert. denied, 510 U.S. 1137, 127 L. Ed. 2d 426, 114 S. Ct. 1117 (1994); see Anders brief at 13.
Finally, the petitioner's fourth claim, that the special conditions imposed upon the term of the supervised relief are greater then the specified sentence under 18 U.S.C. § 3583(d), has also been raised. The court ruled that the sentence was within the correctly calculated guideline range. (Anders brief at 16).
Similarly, the first argument raised by the petitioner, namely, that the court should have only considered the language of the statute related to his predicate felony conviction, instead of considering the facts surrounding his attempted burglary conviction, is also procedurally barred, albeit for a different reason. The "failure to raise a claim on direct appeal is itself a default of normal appellate procedure, which a defendant can overcome [on a collateral attack] only by showing cause and prejudice." Douglas, 13 F.3d 43 at 46, quoting, Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992). In other words, the petitioner's failure to raise an issue on direct appeal will bar him from bringing that claim in a section 2255 motion unless the petitioner can demonstrate that there was "cause" for failing to raise the issue, and "actual prejudice" resulting therefrom. See Douglas, 13 F.3d at 46; Campino, 968 F.2d at 190; cf. United States v. Frady, 456 U.S. 152, 167-68, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982) (establishing cause and prejudice test for collateral relief based on trial errors to which no contemporaneous objection was made). In the instant case, the petitioner has failed to meet this burden.
At the time of his direct appeal, Neff was represented by counsel, and the legal basis for this challenge to his sentence was available. Further, Neff was advised by his attorney of his option to file a pro se motion, and he was informed of the procedural time limit within which to file such a motion. (Darrell B. Fields' Decl. at 2.) Even if Neff did not understand the filing of the pro se motion, as he now contends, Neff has not established "cause." An appellant's ignorance of the law does not satisfy the cause and prejudice requirements necessary to excuse appellant's failure to seek relief on direct appeal. See United States v. Weiss, 902 F. Supp. 326, 329 (N.D.N.Y. 1995).
Moreover, even if it were properly before the Court, the petitioner's claim is without merit. Neff's sentence would have been enhanced, for a "violent felony" conviction, whether or not the Court considered the facts surrounding his attempted burglary conviction. In United States v. Telesco, 962 F.2d 165 (2d Cir. 1992) the Second Circuit held that "when prior convictions are for crimes designated as 'crimes of violence' by the Sentencing Commission, the sentencing court is not permitted to examine the actual conduct underlying the convictions. The Sentencing Commission has thus determined that certain crimes -- regardless of the precise conduct -- are inherently violent." Id. at 166. As stated above, it has already been decided that attempted burglary is a "violent felony." See Andrello, 9 F.3d 247 at 249. Thus, for purposes of determining career offender status under the Guidelines, there is no such thing as a non-violent attempted burglary. See Telesco, 962 F.2d at 166 (holding there is no such thing as a non-violent burglary); see also United States v. Hathaway, 949 F.2d 609 (2d Cir. 1991) (per curiam), cert. denied, 502 U.S. 1119, 117 L. Ed. 2d 470, 112 S. Ct. 1237 (1992) (applying a categorical, rather than a factual approach to the determination of whether a prior conviction was a "violent felony"). Accordingly, Neff's sentence would have been enhanced for a "violent felony" conviction whether or not the Court considered the facts surrounding his attempted burglary conviction.
After reviewing the parties' submissions, and for the reasons stated above, it is hereby
ORDERED, that the petitioner's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 is denied; and it is further
ORDERED, that the Clerk of the Court is directed to close this case.
Dated; Uniondale, New York
July 30, 1997
Hon. Arthur D. Spatt
United States District Judge
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