The opinion of the court was delivered by: William M. Skretny United States District Judge
On April 4, 2003, Petitioner Handley appeared before this Court, executed a Waiver of Indictment, and pled guilty to a One Count Information that charged him with possession of a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) and to Count I of Indictment 01-CR-204-S charging him with possession with intent to distribute and distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). The plea agreement and ensuing judgments resolved two separate criminal complaints against him in cases 01-CR-204 and 03-CR-067.
On March 4, 2004, Handley filed a post-sentence petition in each case, captioned "Petition to Dismiss Indictment for Failure to Charge a Federal Offense and Lack of Jurisdiction in that the Indictment is Vague and Insufficient" in 01-CR-204, and "Petition to Dismiss Information for Failure to Charge a Federal Offense and Lack of Jurisdiction in that the Information is Vague and Insufficient" in 03-CR-067.*fn1 (01 Docket No. 58; 03 Docket No. 38).
Handley's post-sentence petitions did not cite to any procedural rule or statutory basis for the relief requested. Accordingly, this Court looked to the substance of the petitions and docketed them as motions to vacate his sentence under 28 U.S.C. § 2255. In response to the Government's answer/motion to dismiss, Handley contested the Court's characterization of his petitions and claimed he was challenging "the original service/process of the original proceedings" pursuant to Rules 4, 12, 33, 55 and 60 of the Federal Rules of Civil Procedure. (01 Docket No. 63, ¶ 1). Handley urged that "process under rule 4 is violated for failure to charge a crime against the United States within the 120 day period" and "the case [against him] was falted [sic] from the start for improper service/process which created a lack of jurisdiction under Article III." Id., ¶ 5.
In an Order dated August 4, 2005, this Court noted that Rule 4 of the Federal Rules of Civil Procedure is not applicable to criminal proceedings and, therefore, Handley had not identified any cognizable basis for relief as an alternative to 28 U.S.C. § 2255. Id., Docket No. 67, p. 4. Handley was expressly notified of this Court's intent to treat his post-sentence petitions as requests for habeas relief pursuant to 28 U.S.C. § 2255, and he was provided the opportunity to withdraw or amend his original filings. See Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed. 2d 778 (2003); Adams v. United States, 155 F.3d 582 (2d Cir. 1998). Currently before this Court is Handley's "Amendment to Motion," filed on August 25, 2005. Id., Docket No. 68.
Handley states in his "Amendment" that his request for relief is "best addressed as a Rule 60(b) motion" and he "moves this Honorable Court to hold in abeyance any recharacterization or ruling on as a § 2255." (01-CR-204, Docket No. 68, pp. 3, 4). Handley further advises that"[u]nless some sort of guarantee is given by this Honorable Court that the § 2255 would not be rule [sic] on as being time barred or incorrectly filed Mr. Handley could not in his best interest choose to go a rout [sic] that would deny him justice."
This Court previously considered and rejected Handley's argument that his petitions should be considered under various other avenues for relief, including FED. R. CIV. P. 60, based upon a violation of FED. R. CIV. P. 4. Although clearly apprised of the Court's intent to consider this matter under section 2255, Handley neither withdrew nor amended his original petitions. Accordingly, they are considered as initially presented.*fn2 For the reasons set forth below, the petitions are denied.
As noted above, by written agreement dated April 4, 2003, Handley agreed to waive indictment and plead guilty to a one count information in 03-CR-067, and to plead guilty to Count I of indictment 01-CR-204-S. (01 Docket No. 46, ¶ 1). Those charges carried possible maximum terms of life imprisonment (violation of 18 U.S.C. §§ 922(g)(1) and 924(e)) and twenty years (violation of 21 U.S.C. § 841(a)(1)). Id. The plea agreement stipulated that: the enumerated violations would result in a combined adjusted offense level 35; the Government would not oppose a recommendation for a three (3) level downward adjustment; and the resulting offense level of 32, along with Handley's criminal history category of VI, would result in a sentencing range of 210 to 262 months. Id., ¶¶ 10, 11, 14. As part of his plea agreement, Handley "knowingly waive[d] the right to appeal, modify pursuant to Title 18 United States Code, Section 3582(c)(2) and collaterally attack any sentence imposed by the Court which falls within or isless than the sentencing range for imprisonment." Id., ¶ 21.
On April 4, 2003, after executing the plea agreement, Handley appeared before this Court and pled guilty to the one count information and Count I of the indictment. (01 Docket No. 61, pp. 27-28). Before accepting Handley's guilty plea, this Court conducted an extensive proceeding in compliance with Rule 11 of the Federal Rules of Criminal Procedure. The Court placed Handley under oath, asked a series of questions to determine his competency, Id., pp. 2, 4-5, 7-10, and advised him of his rights relative to the charges against him, pp. 5-7. During the course of the plea allocution, Handley confirmed that he had sufficient time to review the plea agreement, Id., pp. 3-4, 8, was satisfied with his attorney, p. 12, and understood the content of the indictment, information and plea agreement, pp. 10-27. Following the allocution, this Court concluded that Handley understood the nature of the charges against him, confirmed that his plea was voluntary, and found that the facts, as agreed to, would be sufficient for a trier of fact to conclude guilt beyond a reasonable doubt. Id., pp. 29-30.
On August 4, 2003, Handley was sentenced to a term of 150 months' imprisonment followed by five years of supervised release and was assessed a mandatory ...