United States District Court, S.D. New York
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
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 term of incarceration or of supervised release, but not both.
Abrahamson is correct that the statutes under which he pleaded guilty
do not address supervised release. However, 18 U.S.C. § 3583 (a)
provides that: The court, in imposing a sentence to a term of
imprisonment for a felony . . . may include as part of
the sentence the requirement that the defendant be
placed on a term of supervised release after
The Second Circuit noted that "federal supervised release, in contrast to
probation, is meted out in addition to, not in lieu of, incarceration."
United States v. Reyes, 283 F.3d 446, 461 (2d Cir. 2002); see also United
States v. Colt, 126 F.3d 981, 982 (7th Cir. 1997). Further, the
Sentencing Guidelines state that "[u]nlike parole, a term of supervised
release does not replace a portion of the sentence of imprisonment, but
rather is an order of supervision in addition to any term of
imprisonment, as imposed by the Court." U.S.S.G., Ch. 7 Pt. A at 365
(November 1, 1997 ed.).
Further, the Guidelines do not "mandate  either a term of
imprisonment or supervised release," but not both. The specific Guideline
relied upon in the Plea Agreement states: "The court shall order a term
of supervised release to follow imprisonment when a sentence of
imprisonment of more than one year is imposed, or when required by law."
U.S.S.G. § 5Dl.l(a) (November 1, 1997 edition). Accordingly, Abrahamson's
challenge to his term of supervised release is denied.
The Criminal Conspiracy Statute. 18 U.S.C. S 371 is Constitutional
Abrahamson argues that the statute under which he pled guilty,
18 U.S.C. § 371, violates both the First and the Sixth Amendments of the Constitution, and as a result, the Court lacks
subject matter jurisdiction. Although Abrahamson failed to raise this
issue at any prior proceeding, it will be addressed here because the
merits may be addressed briefly.
Section 371, the criminal conspiracy statute, which makes it a crime to
"conspire . . . to commit any offense against the United States," has
been repeatedly upheld as constitutional. See, e.g., United States v.
Heck, 499 F.2d 778, 788 (9th Cir. 1974), cert. denied, 419 U.S. 1088
(1974); United States v. Edwards, 458 F.2d 875, 883 n. 7 (5th Cir.)
(stating that defendant's contention that 18 U.S.C. § 371 was
unconstitutional was "clearly without merit"), cert. denied sub nom. Huie
v. United States, 409 U.S. 891 (1972); see also Marzook v. Christopher,
96 Civ. 4107, 1996 WL 583378, at *4 n.2 (S.D.N.Y. Oct. 10, 1996).
The South Dakota Supreme Court, in reviewing a void for vagueness and
overbreadth challenge to a conspiracy statute "in substance . . .
identical" to § 371, held that the "statute clearly sets forth a criminal
offense constituting lawful notice to all citizens." State v. Erickson,
315 N.W.2d 332, 334 (S.D. 1982) (citing SDCL 22-3-8). This holding of the
Erickson court is persuasive, and is adopted here.
A challenge to § 371 on First Amendment grounds is similarly
unavailing. The Second Circuit upheld a lower court's rejection of a First Amendment defense to criminal conspiracy, holding
that "speech is not protected by the First Amendment when it is the very
vehicle of the crime itself." United States v. Rowlee, 899 F.2d 1275,
1278 (2d Cir. 1990) (quoting United States v. Varani, 435 F.2d 758, 762
(6th Cir. 1970)). Even the First Amendment champion Justice Black wrote
for the Supreme Court over fifty years ago that:
It rarely has been suggested that the constitutional
freedom for speech and press extends its immunity to
speech or writing used as an integral part of conduct
in violation of a valid criminal statute. We reject
the contention now.
. . .
. . . It is true that the agreements and course of
conduct here were as in most instances brought about
through speaking or writing. But it has never been
deemed an abridgment of freedom of speech or press to
make a course of conduct illegal merely because the
conduct was in part initiated, evidenced, or carried
out by means of language, either spoken, written, or
printed. Such an expansive interpretation of the
constitutional guaranties of speech and press would
make it practically impossible ever to enforce laws
against agreements in restraint of trade as well as
many other agreements and conspiracies deemed
injurious to society.
Giboney v. Empire Storage & Ice Co., 336 U.S. 490
, 498, 502 (1949).
Abrahamson has not stated any basis upon which to find that these
authorities are not controlling. His claim of unconstitutionally is
therefore denied. The Claim for Ineffective Assistance of Counsel is Denied
For the first time in his Traverse, Abrahamson raises a claim that he
was denied "ineffective assistance of counsel pursuant [to] the Sixth
Amendment on direct appeal" by his trial counsel. Reading this claim to
suggest the strongest possible arguments, Abrahamson alleges at best that
he was denied ineffective assistance when his trial counsel failed to
file a direct appeal on his behalf raising the same issues as those in
Abrahamson's § 2255 petition.
The standard by which trial counsel can be deemed constitutionally
ineffective is a strict one. A defendant claiming ineffective assistance
of counsel must: (1) overcome a strong presumption that his counsel's
conduct was reasonable and show that his counsel's representation fell
below "an objective standard of reasonableness" under "prevailing
professional norms"; and (2) "affirmatively prove prejudice," that is,
show that, "but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland v. Washington,
466 U.S. 668, 693-94 (1984); see also Hernandez v. United States,
202 F.3d 486, 488 (2d Cir. 2000) ("[u]nder the Strickland standard, a
petitioner must establish both (1) that counsel made errors so serious
that defendant was deprived of reasonably competent representation, and
(2) that counsel's deficient performance prejudiced the defense"). Only
if both of these elements are satisfied can a defendant demonstrate that his counsel made errors "so serious" that "counsel
was not functioning as the `counsel' guaranteed by the Sixth Amendment,"
and that the defendant was, as a result, deprived of a fair proceeding.
Strickland, 466 U.S. at 687.
Because Abrahamson knowingly entered into a plea agreement waiving his
right to appeal or otherwise to challenge his sentence, his trial counsel
could not have been ineffective for failing to file a direct appeal.
Abrahamson provides no other grounds for the alleged ineffective
assistance of his trial counsel other than a bare assertion of the denial
of his Sixth Amendment right. "Self-serving conclusory allegations . . .
are insufficient to establish ineffective assistance of counsel."
Hernandez v. United States, 280 F. Supp.2d 118, 122 (S.D.N.Y. 2003)
(citing United States v. Torres, 129 F.3d 710, 715-717 (2d Cir. 1997);
United States v. Gonzalez, 970 F.2d 1095, 1099-1101 (2d Cir. 1992)).
Because Abrahamson has failed to establish the elements of the
Strickland standard, his claim for ineffective assistance of counsel is
Petitioner's claims have been considered and dismissed as lacking
merit as he has shown no violation of his constitutional rights in his
conviction. His petition for a writ of habeas corpus is therefore denied.
As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of
appealability will not issue. See 28 U.S.C. § 2253 (c)(2); Lucidore v.
N.Y.S. Div. of Parole, 209 F.3d 107, 111-113 (2d Cir. 2000).
It is so ordered.
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