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