United States District Court, S.D. New York
September 8, 2005.
UNITED STATES OF AMERICA,
ARTOUR ARAKELIAN, Defendant.
The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge
OPINION AND ORDER
On July 12, 2005, Artour Arakelian, a Defendant who has pled
guilty in a criminal prosecution pending before this Court,
submitted a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. The petition asserts that Defendant has been
deprived of the right to effective assistance of counsel at plea
bargaining and that the appropriate remedy is the imposition of
the forty-six month sentence originally offered by the Government
during the plea bargaining stage. This habeas petition is
dismissed for the reasons stated below.
On November 22, 2004, Defendant pled guilty to Counts One
through Ten of the Government's second superseding indictment
(11/22/04 Tr. at 16). A Fatico hearing and sentencing of the
defendant was initially scheduled for May 18, 2005. Before May
18, 2005, the Court received two letters from Defendant regarding
his upcoming sentence. On May 13, 2005, the Court received a
handwritten letter directly from the Defendant. On May 16, 2005,
the Court received a letter from Mr. Weissman, counsel for the Defendant, attaching a typed statement signed by the Defendant.
In his statement, Defendant asked the Court to permit him to
withdraw his guilty plea. Defendant also requested that the Court
appoint new counsel because Defendant did not believe his
retained counsel had represented him effectively and he could not
afford to retain new counsel.
On May 18, 2005, after the Government left the courtroom in
order to allow Defendant to state his grounds for believing that
his retained counsel had not represented him effectively and
before the Court could consider his request for assignment of new
counsel, Mr. Weissman volunteered that the Defendant had retained
new counsel. On May 31, 2005, Cheryl Sturm, Esq. entered an
appearance as Defendant's new counsel. On July 12, 2005,
Defendant filed a petition for habeas corpus pursuant to
28 U.S.C. § 2241, raising the issue of ineffective assistance of
counsel.[fn*] On July 13, 2005, Ms. Sturm also filed a motion
for recusal pursuant to 28 U.S.C. § 455(a). On September 6, 2005,
this Court denied the motion for recusal. The instant opinion
deals with the habeas petition.
Petitions for habeas corpus pursuant to 28 U.S.C. § 2241 do not
generally lie prior to sentence. Judge Denise L. Cote of this
Court has determined that a petition raising the claim of
ineffective assistance of counsel filed pursuant to
28 U.S.C. § 2241 is premature when filed after trial but prior to sentencing.
United States v. Esteban Gonzalez, No. 00 CR 447 (DLC),
2001 U.S. Dist. LEXIS 13096 (S.D.N.Y. Aug. 30, 2001). As Judge Cote
noted, "a challenge to the execution of a sentence . . . is
properly filed pursuant to Section 2241," (citing Chambers v. United States, 106 F.3d 472, 474 (2d
Cir. 1997)) and "petitions under Section 2241 typically challenge
`such matters as the administration of parole, computation of a
prisoner's sentence by prison officials, prison disciplinary
actions, prison transfers, type of detention and prison
conditions'" (citing Jiminian v. Nash, 245 F.3d 144, 146 (2d
Cir. 2001)). Id. at *5. Defendant's petition in the instant
case does not raise any of these issues, which generally arise
In denying relief pursuant to 28 U.S.C. § 2241 in Gonzalez,
Judge Cote relied on the Ninth Circuit's opinion in United
States v. Pirro, 104 F.3d 297 (9th Cir. 1997). In Pirro, the
Ninth Circuit affirmed the dismissal of a § 2241 petition filed
prior to sentencing, holding that the filing of a pre-sentence
petition for habeas corpus pursuant to 28 U.S.C. § 2241 was not
appropriate. The Ninth Circuit expressed concern that giving
defendants the opportunity to utilize § 2241 prior to sentencing
to raise claims that were otherwise available in a Section 2255
motion "would allow all incarcerated defendants simultaneously to
pursue both section 2241 petitions challenging the validity of
their convictions and sentences and direct appeals challenging
the same. This result would eviscerate our goal of judicial
economy by engaging the attention of two courts on the same case
at the same time." Id. at 299. Accordingly, "[a] section 2241
habeas petition is authorized only if the remedy available under
section 2255 is `inadequate or ineffective to test the legality
of [a defendant's] detention.'" Id. at 298. The Ninth Circuit
concluded that "the delay resulting from the fact that the
sentencing court will not review a section 2255 motion until the
direct appeal is resolved" does not render the relief under the §
2255 motion "inadequate or ineffective." Id. The Ninth Circuit
held that a § 2241 petition filed before sentencing will not be
allowed absent a showing that the relief under a § 2255 motion would be inadequate or ineffective. Defendant has
not attempted to make such a showing here.
More to the point, Defendant's petition for a writ of habeas
corpus pursuant to § 2241 is inherently defective. Rather than
contesting the legality of the Defendant's custody, it seeks a
reinstitution of a plea offer of 46 months of imprisonment, an
offer apparently made by the government and subsequently
withdrawn. Since the petition does not provide grounds for a
habeas corpus challenge, Defendant's petition is dismissed and
the adjourned Fatico hearing and sentencing will proceed on
September 22, 2005 at 9:30 a.m.
Nevertheless, Defendant's petition raises an issue as to the
effectiveness of counsel, which requires a prompt hearing while
memories are relatively fresh. Accordingly, the Court will allow
the petitioner to file his present papers as a motion pursuant to
Section 2255 promptly after sentencing. An evidentiary hearing
will be held on that petition on September 26, 2005 at 9:30 a.m.
so that the issue may be reviewed on direct appeal.
For the foregoing reasons, Defendant's petition for habeas
corpus pursuant to 28 U.S.C. § 2241 is dismissed.
IT IS SO ORDERED.
[fn*] The petition for habeas corpus was initially assigned to
Judge Hellerstein in this District. The petition was then
reassigned to this Court since it related to the same subject
matter as the criminal prosecution.
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