United States District Court, Northern District of New York
February 14, 2002
JOHN EDOUARD PETERSON FORRESTAL, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT
The opinion of the court was delivered by: Howard G. Munson, Senior U.S. District Judge.
MEMORANDUM DECISION AND ORDER
Petitioner moves pursuant to 28 U.S.C. § 2255, to vacate, set aside
or correct his sentence of imprisonment. Although petitioner has been
released from custody, he still meets the "in custody" requirement of
§ 2255. On April 20, 1999, in the United States District Court for
the Northern District of New York, before the Honorable
Munson, petitioner pleaded guilty to a single count of an indictment
charging him with Conspiracy to Possess with Intent to Distribute and to
Distribute Heroin in violation of 21 U.S.C. § 846. He received a
sentence of 18 months imprisonment followed by three years of supervised
release. No appeals were taken by petitioner.
While a completely expired sentence at the time of filing does not meet
the "in custody" requirement, Maleng v. Cook, 490 U.S. 488, 491-92, 109
S.Ct. 1923, 1925-26, 104 L.Ed.2d 540 (1989), actual physical imprisonment
is not required, so long as a petitioner suffers from substantial
restraints not shared by the public generally. Hensley v. Municipal
Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 1574-75, 36 L.Ed.2d 294 (1973).
In the instant case, upon leaving confinement, petitioner was subject to
a three year term of supervised release. Therefore, at the time he filed
his petition, he was still "in custody" within the meaning of the
statute. Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9
L.Ed.2d 285 (1963); Scanio v. United States, 37 F.3d 858, 860 (2d Cir.
In his § 2255 motion, petitioner challenges the legality of his
sentence claiming that his guilty plea was made without full
understanding of the nature of the charge and the possible deportation
consequences of the plea, and that the plea was obtained in violation of
his privilege against self-incrimination and his protection against
double jeopardy. Petitioner's assertions are without merit, and his
§ 2255 motion will be denied for the reasons hereinafter set
Petitioner's § 2255 motion is untimely. The Antiterrorism and
effective Death Penalty Act ("AEDPA") imposes a one year limit on the
filing of petitions pursuant to the 28 U.S.C. § 2255 statute.
Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998). The
limitation period begins to run from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date upon which the impediment created by governmental action
in violation of the Constitution or laws of the United States is
removed, if the movant was prevented from making a motion by such
(3) the date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable on collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
It is apparent that the limitations question in the instant case is
only concerned with #1 above, the date on which petitioner's judgment of
conviction became final. There is no question that the one year
limitation period for bringing a § 2255 motion in this case expired
at least six months before petitioner filed his § 2255 motion on May
9, 2001. Petitioner pleaded guilty on September 10, 1999, and judgment
of conviction was entered on October 26, 1999. A notice of appeal was not
filed with the district court within 10 days of the entry of judgment of
conviction, making it final on November 6, 1999, and the one year
limitation period expired on November 5, 2001.
The Second Circuit has adopted the doctrine of equitable tolling in the
context of AEDPA's state of limitations provisions. Smith v. McGinnis,
208 F.3d 13, 17 (2d Cir. 2000). In order to equitably toll the one year
period of limitations, petitioner
must show that extraordinary
circumstances prevented him from filing his or her petition on time.
Id. However, only those situations where the unavailability of §
2255 would raise serious constitutional questions is § 2255 deemed
inadequate to test the legality of a prisoner's detention. Denying
petitioner's collateral review where § 2255 is unavailable because of
her failure to abide by the statute of limitations provision, does not
raise any serious constitutional questions. Triestman v. United States,
124 F.3d 361, 377 (2d Cir. 1997).
As pointed out above, petitioner did not make a direct appeal of his
conviction following his guilty plea. "A motion under 2255 is not a
substitute for an appeal." United States v. Munoz, 143 F.3d 632, 637 (2d
Cir. 1998); Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604,
1610, 140 L.Ed.2d 828 (1998) ("and even the voluntariness and
intelligence of a guilty plea can be attacked on collateral review only
if first challenged on direct review."). Where a criminal defendant has
procedurally defaulted his claim by failing to raise it on direct review,
the claim may be raised in a § 2255 motion only if the defendant can
demonstrate either: (1) "cause for failing to raise the issue, and
prejudice resulting therefrom," Douglas v. United States, 13 F.3d 43, 46
(2d Cir. 1993): or (2) "actual innocence." Bousley, 118 S.Ct. at 1611.
To establish cause, petitioner must show that some objective external
factor impeded his ability to take a direct appeal, and neither
petitioner's failure to appeal because "he thought it was in my best
interest to leave the verdict as is," (Petitioner's motion papers p. 4,
at (6)(d)), nor a waiver of the right to appeal in a plea agreement
constitute such an impediment. United States v. Pipitone, 67 F.3d 34, 39
(2d Cir. 1995); Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91
L.Ed.2d 397 (1986); Garcia-Santos v. United States, 273 F.3d 506, 508 (2d
Cir. 2001). Because petitioner has failed to demonstrate cause for not
presenting his § 2255 assertions on direct appeal or prejudice
resulting therefrom, he is procedurally barred from raising these
assertions on collateral review.
Petitioner's guilty plea was valid even if he had never known that it
could result in his deportation. For a plea to have been knowingly and
voluntarily made, the defendant must have been informed of the direct
consequences of the conviction. Brady v. United States, 397 U.S. 742,
755, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1970). Rule 11 of the Federal Rules
of Civil Procedure does not require the court to advise a defendant of
the possibility of deportation as a consequence of pleading guilty to a
criminal charge. United States v. Campbell, 778 F.2d 764, 766-67 (11th
Cir. 1985). "Deportation is a peripheral consequence, not a punishment
imposed by the trial judge" and "[a]s such, the court [is] under no duty
to warn the petitioner of the likelihood of deportation." Polanco v.
United States, 803 F. Supp. 931-32 (S.D.N.Y. 1992). Furthermore, defense
counsel's failure to advise a defendant of possible deportation
consequences does require the court to permit withdrawal of the guilty
plea as involuntarily made; nor does defense counsel's failure to advise
on collateral consequences of a plea amount to ineffective assistance of
counsel. United States v. Salerano, 66 F.3d 544, 550-51 (2d Cir. 1995);
Santos v. Klob, 880 F.2d 941, 945 (7th Cir. 1989).
Lastly, the court considered petitioner's Fifth Amendment claims and
found them wanting. Waiver of a double jeopardy claim takes place where
the defendant enters a guilty plea, "which is an admission that he
committed the crime
charged against him," rather than merely a
"confession which admits the accused did various acts." Broce v. United
States, 488 U.S. 563, 572-73, 109 S.Ct. 757, 764,102 L.Ed.2d 927 (1989).
A defendant who signs a plea agreement before raising his double jeopardy
claims waives the right to press those claims. United States v.
Mortimer, 52 F.3d 429, 435 (2d Cir. 1995). Courts will conclude that a
defendant's guilty plea waived his double jeopardy claims even if the
defendant does not know about the claim at the time of the plea
Conscious relinquishment of the double jeopardy claim is not required
because the guilty plea constitutes an admission sufficient to establish
that the defendant committed the crime, not an "inquiry into a
defendant's subjective understanding of the range of potential defenses."
Id. at 573-74, 109 S.Ct. 757.
A guilty plea constitutes a waiver of any Fifth Amendment privilege
against self-incrimination as it applies to the particular crimes to
which the plea was entered, but it does not constitute a blanket waiver
of the privilege as to any other crime for which the defendant can still
be prosecuted. United States v. James, 609 F.2d 26, 43 (2d Cir. 1979);
cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 231 (1980); United
States v. Arnott, 704 F.2d 322, 325, cert. denied, 464 U.S. 948, 104
S.Ct. 364, 78 L.Ed.2d 325 (1983). Petitioner has not alleged that double
jeopardy was a factor in any crime he was charged with other than in the
one he pleaded guilty to committing.
Accordingly, petitioner's, § 2255 motion to vacate, set aside or
correct his sentence is DENIED.
IT IS SO ORDERED
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