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ABRAHAMSON v. U.S.

April 26, 2004.

ROBERT ABRAHAMSON, Petitioner, -against- UNITED STATES OF AMERICA, Respondent


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

Robert Abrahamson ("Abrahamson") has moved pursuant to 28 U.S.C. § 2255, alleging that the Court erred in sentencing him to penalty of restitution and to a term of supervised release, and that the criminal conspiracy statute under which he pled guilty is unconstitutional. For the reasons set forth below, the petition is denied.

Prior Proceedings

  On April 3, 2002, Abrahamson pleaded guilty to one count of conspiracy to commit securities fraud, mail fraud and wire fraud in violation of 18 U.S.C. § 371 and one count of securities fraud in violation of 15 U.S.C. § 78j(b) and 78ff; 17 C.F.R. § 10b-5. Abrahamson's offense conduct is described in detail in United States v. Abrahamson, 02 Cr. 366, 2002 WL 31255329 (S.D.N.Y. Oct. 8, 2002). On October 24, 2002, Abrahamson was sentenced by this Court to 16 months imprisonment, to be followed by three years of supervised release on each count, running concurrently. Abrahamson was also ordered to make restitution to the victims of the fraud "in the amount of $420,000, except that no further payment shall be required after the sum of the amount paid by all defendants has fully covered all of the compensable injuries." Id. at *6. Abrahamson has now served his sentence of incarceration, having been released on February 5, 2004. Abrahamson filed the instant petition, pro se, on June 25, 2003. After a scheduling order and appropriate filings, the motion was deemed fully submitted on February 18, 2004.

 Discussion

  In addressing the present motion, the Court is mindful that Abrahamson is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam) (quoting Haines v. Keener, 404 U.S. 519, 520 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should "`read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, the Court is also aware that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).

  As an initial matter, the government responded to Abrahamson's petition in a timely manner. The Court's 60 day extension of the August 18, 2003 deadline created a new deadline of October 17, 2003, which was the day the government submitted its response. According to the government, Abrahamson's claims are procedurally barred because he failed to raise them on direct appeal. In addition, Abrahamson entered into a plea agreement in which he waived his right to appeal the sentence or to file a § 2255 petition. See United States v. Abrahamson, 02 Cr. 366, Transcript, April 3, 2002, at 12-13. Abrahamson indicated at his guilty plea proceeding that he understood that he had waived this right. Id.

  "If the defendant fails to raise a claim of error on direct appeal, habeas relief is generally available only upon a showing of cause and prejudice." United States v. Warren, 335 F.3d 76, 79 (2d Cir. 2003) (citing Bousley v. United States, 523 U.S. 614, 622-23 (1998)). "[T]his rule applies equally when the conviction was entered pursuant to a guilty plea." Matthews v. United States, 114 F.3d 112, 113 (8th Cir. 1997), cert. denied 522 U.S. 1064 (1998). However, "the procedural default rule delineated by Bousley does not apply to claims of ineffective assistance of counsel." Fountain v. United States, 357 F.3d 250, 254 (2d Cir. 2004) (citing Massaro v. United States, 538 U.S. 500, 508-09 (2003)). Abrahamson is presumably arguing that the ineffective assistance of his counsel led to his failure to file a direct appeal. If, however, Abrahamson's ineffective assistance claim is found to be meritless, his remaining claims could presumably be dismissed as defaulted. Rather than delve into this procedural thicket, however, the Court will follow the recommendation of the Honorable Gerard E. Lynch, who opined that "in habeas corpus cases, potentially complex and difficult issues about the various obstacles to reaching the merits should not be allowed to obscure the fact that the underlying claims are totally without merit." Brown v. Thomas, 02 Civ. 9257, 2003 WL 941940, at *1 (S.D.N.Y. Mar. 10, 2003). A discussion of Abrahamson's challenges to his sentence is therefore appropriate.

 Restitution May Not Be Attacked in a Section 2255 Motion

  In his initial petition, Abrahamson argues that the Court erred in sentencing him to make restitution without determining his financial status, the identity of the victim, and whether the statute mandated restitution. Abrahamson's Traverse adds more challenges to the sentence of restitution.

  The statutory provision pertaining to habeas corpus for federal prisoners, provides that:

  A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. The Second Circuit held that a restitution order "does not bring about custody," that therefore "an attack on that order, would not, without more, seek release from custody." Kaminski v. United States, 339 F.3d 84, 87 (2d Cir. 2003). The Kaminski court went on to hold that the fact that the petitioner also challenges his sentence of incarceration in the same § 2255 petition as the challenge to restitution does not make the restitution order cognizable on a § 2255 petition. Id. at 89 ("Habeas lies to allow attacks on wrongful custodies. There is therefore no reason why the presence of a plausible claim against custodial punishment should make a noncustodial punishment more amenable to collateral review that it otherwise might be."). Accordingly, Abrahamson's challenge to his restitution order is not properly brought on a § 2255 petition.

 The Sentence of Supervised Releases Was Properly Imposed

  Abrahamson argues that he was improperly sentenced to three years of supervised release because the statute did not regulate the term of supervision, and because the Sentencing Guidelines mandate the imposition of either a ...


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