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BARR v. U.S.
July 3, 2001
ELLEN BARR, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Lawrence E. Kahn, United States District Judge
MEMORANDUM — DECISION AND ORDER
Presently before the Court is a petition for a writ of habeas corpus
filed by Petitioner, pursuant to 28 U.S.C. § 2255. For the following
reasons, the Petition is DENIED.
On February 15, 2000, upon Petitioner's plea of guilty to the charge of
conspiracy to possess cocaine with the intent to distribute in violation
of 21 U.S.C. § 846 and 841, this Court sentenced her to a term of
incarceration of fifteen (15) months and a term of supervised release of
Although Petitioner's base offense level was twenty (20), because she
accepted responsibility for her crime, the total offense level was
reduced to a seventeen (17). Moreover, her criminal history category was
calculated at a level II, in part because of a prior cocaine possession
conviction Petitioner received in Florida.*fn1
Petitioner alleges, in her instant habeas petition, that because her
Florida conviction occurred in November 1985, it should not have been
utilized by the Court to increase her criminal history level to a
category II. Specifically, Petitioner points out that the United States
Sentencing Guidelines declare, in part, that any sentence of imprisonment
not exceeding one year and one month that is not within ten years of the
commencement of the instant offense may not be used to increase her
criminal history level category. See U.S.G. § 4A1.2(e). Since
Petitioner's Florida conviction occurred more than fifteen (15) years
ago, she argues that it should not have been used against her. In
response, the Government argues that Petitioner waived her right to
appeal the conviction and sentence because it was for less than fifty-one
(51) months, that because Petitioner did not raise the instant
any point prior to sentencing she also waived her right to challenge it
collaterally, and that her claims fail on the merits.
Regarding the merits of Petitioner's claims, the Government argues that
Petitioner's instant offense commenced in 1994.*fn2 As such, the
Government contends that her Florida conviction was within the ten year
rule established under the Sentencing Guidelines and that it was entitled
to use Petitioner's Florida conviction to raise her criminal offense
level category. In response, Petitioner argues that the Government
cannot establish that her offense began in 1994 because the information
indicating that it started then came from her own admissions and,
pursuant to her proffer and plea agreements, cannot be used against her.
This claim is devoid of merit. The Government obtained the questioned
evidence from two sources. The first source was Petitioner's proffer and
plea agreement and could not have been used against her. The second
source was the proffer of a co-defendant of Petitioner, who stated that
the offense began in 1994. Petitioner's co-defendant made this proffer
on January 22, 1994, almost two months prior to Petitioner's initial
proffer. Thus, the Government did not violate Petitioner's proffer and
plea agreement when it utilized the information received from her
co-defendant to raise her criminal category offense level.
Moreover, even assuming for purposes of argument that Petitioner's
behavior in 1994 was distinct from the offense for which she was indicted
and sentenced in this Court, she does not have the ability to raise this
issue via the instant 2255 petition because she agreed to waive any right
to appeal of a sentence of fifty-one months or less. The Second Circuit
has rejected arguments from prisoners seeking to collaterally attack
their convictions by filing 2255 habeas petitions when the prisoner fails
to raise the 2255 issues on direct appeal and is unable to demonstrate
"both cause for an earlier default and actual prejudice from the errors
Campino v. United States, 968 F.2d 187, 189 (2d Cir. 1992); see also
United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995). This rule
applies even when a prisoner enters into a plea agreement waiving his or
her right to direct appeal. Pipitone, 67 F.3d at 38-39; Pollack v.
Hobbs, 98 F. Supp.2d 287, 291 (E.D.N.Y. 2000).
Furthermore, the acceptance of such a plea agreement does not
constitute cause for failing to file a direct appeal. See Pipitone, 67
F.3d at 38. This is so because if the Court allowed such Petitions to go
forward the cause requirement would be "turned on its head." Id.
Prisoners could simply waive their right to appeal and then, using the
linguistic distinction between the terms "habeas petition" and "appeal,"
raise the waived claims by filing a 2255 petition. Id.
Because this Court cannot countenance such an obvious circumvention of
the plea agreement, it also holds that ...
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