Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

HALL v. U.S.

United States District Court, W.D. New York


May 9, 2005.

JULIUS TYRONE HALL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge

ORDER

WHEREAS Julius Tyrone Hall entered into a plea agreement (the "Plea Agreement") on December 30, 1999 whereby he agreed to, inter alia, plead guilty to violation of 21 U.S.C. § 846 (conspiracy to possess with intent to distribute and to distribute cocaine base); and

WHEREAS Hall agreed to a sentencing range of between 262 and 327 months imprisonment, a fine of between $17,500 and $8,000,000 and a period of supervised release of ten years (Plea Agr. ¶ 14); and

  WHEREAS on August 1, 2003, Hall was granted a six-level downward departure resulting in a sentencing range of between 140 and 175 months imprisonment; and

  WHEREAS on August 1, 2003, Hall was sentenced to a term of imprisonment of 155 months (with child support obligations) and ten years of supervised release (with child support obligations) — a sentence that was within the range applicable due to the six-level downward departure and substantially less than the range that Hall had agreed to in the Plea Agreement; and

  WHEREAS judgment was entered against Hall on August 15, 2003; and

  WHEREAS Hall's sentence became final after he failed to file an appeal by August 25, 2003; and WHEREAS Hall filed a motion on February 19, 2004 to vacate, set-aside or correct his sentence pursuant to 28 U.S.C. § 2255 ("Petition") on the grounds that he was denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution based on (1) his attorney's failure to object to the sentence, which allegedly violated the Plea Agreement because the Plea Agreement purportedly promised a recommended sentence of 135 months and (2) his attorney's failure to object to this Court's purported failure to comply with Rule 32(c)(3)(a) of the Federal Rules of Criminal Procedure ("FRCrP"),*fn1 which requires district courts to verify that a defendant has read and discussed the Pre-Sentence Report ("PSR") with counsel;*fn2 and

  WHEREAS this Court, in an Order dated March 22, 2004 directed the United States of America (the "USA") to file a response to the Petition; and

  WHEREAS, on July 6, 2004, the USA filed its response to Hall's Petition, arguing that: (1) the Petition was barred by Hall's Plea Agreement and (2) Hall's counsel was not constitutionally deficient because (A) the Plea Agreement did not promise a recommendation of 135 months and thus it was not unreasonable to fail to object to Hall's sentence*fn3 and (B) it was not unreasonable for Hall's counsel to not object to the fact that Hall was not specifically asked if he had read and discussed the PSR with counsel because circuits are divided as to whether a court must specifically ask a defendant if such has occurred; and

  WHEREAS this matter was submitted on the papers on January 26, 2005; and

  WHEREAS Hall did not challenge the Plea Agreement; and

  WHEREAS dismissal is warranted because Hall waived the right to, inter alia, appeal, modify or "collaterally attack any sentence imposed by the Court which falls within or is less than the sentencing range for imprisonment, a fine and supervised release set forth in Section II * * *" (Plea Agr. ¶ 20); and

  WHEREAS the Court of Appeals has noted that:

"In no circumstances * * * may a defendant, who has secured the benefits of a plea agreement and knowingly waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement. Such a remedy would render the plea bargaining process and the resulting agreement meaningless."
United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993);*fn4 and

  WHEREAS Hall is barred from collaterally attacking his sentence because he was sentenced to a term of imprisonment of 155 months (with child support obligations) and ten years of supervised release (with child support obligations), a sentence within the range set forth in the Plea Agreement (Plea Agr. ¶ 14);*fn5 and WHEREAS Hall's counsel was not "ineffective" and Hall was not prejudiced by his attorney's failure to object at Hall's sentencing because (1) the sentence that Hall received was well below the range expressly agreed to in the Plea Agreement*fn6 and within the revised range that resulted from a six-level downward departure and (2) FRCrP 32(i)(1)(A) does not require a district court to specifically ask a defendant whether he has read and discussed the PSR with his counsel;*fn7 and

  WHEREAS, Hall submitted to this Court a motion dated January 24, 2005 seeking to amend his Petition pursuant to Rule 15(a) of the Federal Rules of Civil Procedure in order to assert a challenge to his sentence under Blakely v. Washington, 124 S. Ct. 2531 (2004) and United States of Am. v. Booker (and its companion case United States of Am. v. Fanfan), 125 S. Ct. 738 (2005); and WHEREAS Hall's motion to amend was never filed because it was not accompanied by a certificate of service; and

  WHEREAS Hall's motion would be denied as futile in any event because Booker is not retroactively applied to sentences that were final before January 12, 2005 and Hall's sentence was final in August of 2003 when he failed to file an appeal;*fn8 it is accordingly

  ORDERED that Hall's motion to amend/supplement his Petition is denied, that Hall's Petition to vacate his sentence is dismissed, that no certificate of appealability shall issue because petitioner has not made a substantial showing of the deprivation of a constitutional right and that the Clerk of this Court shall close this case.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.