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United States District Court, S.D. New York

April 26, 2004.


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.

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.


  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 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 imprisonment.

 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 denied.


  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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