UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
July 31, 2007
FRANCISCO ANTONINO APONTE, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
On October 3, 2002, petitioner pro se Francisco Antonino Aponte pled guilty, pursuant to an agreement with the government, to one count of conspiracy to possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(ii), and 841(b)(1)(A)(iii). On September 25, 2003, petitioner was sentenced to 262 months in prison. In September 2004, petitioner filed an application for relief pursuant to 28 U.S.C. § 2255, arguing that the government had breached its plea agreement. The petition was granted on consent on January 12, 2005, and on May 3, 2005, resentenced petitioner to 186 months in prison. Now before this Court is petitioner's application for a writ of habeas corpus "pursuant to Title 28 U.S.C.A. §2241." For the reasons set forth below, petitioner's application is denied without prejudice to its renewal consistent with the conditions set forth herein.
The following facts are drawn the parties' submissions in connection with this motion and are not disputed. Petitioner was originally arrested in 1996 for conspiring to smuggle illegal aliens into the United States. On April 3, 1998, petitioner was sentenced to 2 years probation and drug treatment pursuant to a plea of guilty. In the present motion, petitioner states that after his 1996 arrest he "cooperated and provided substantial assistance" to the government as a confidential informant ("CI") and that this assistance continued until 2002.*fn1
On April 23, 2002, petitioner was arrested upon the charges which give rise to this petition. On October 3, 2002, petitioner pled guilty to conspiracy to possess with intent to distribute cocaine and cocaine base, pursuant to a plea agreement. In the agreement, the government promised to recommend to the Court for purposes of Sentencing Guideline calculation a Criminal History Category of II and an Offense Level of 35.*fn2 On September 25, 2003, petitioner was sentenced to 262 months in prison in accordance with the Probation Department's Presentence Report that called for a Criminal History Category History of II and an Offence Level of 37, based on a 2-level supervisory role enhancement.*fn3 On September 28, 2004, petitioner filed an application pursuant to 28 U.S.C. § 2255, arguing that the government did not keep its oral promise to request that this Court sentence petitioner in accordance with the plea agreement.*fn4 The government admitted inadvertently breaching the agreement,*fn5 and on May 3, 2005, I resentenced petitioner to 186 months' imprisonment. On January 8, 2007, petitioner filed the present application for relief.
Petitioner titles his filing "Petition for writ of habeas corpus pursuant to Title 28 U.S.C.A. § 2241." This petition makes three claims: (1) that the government, through an oversight, failed to inform the court about his CI status and assistance, which would have made petitioner eligible for a "safety-valve" sentence reduction under 18 U.S.C. §§ 3553 (e) & (f);*fn6 (2) that one or more of his attorneys provided ineffective assistance by misrepresenting to him the benefits of cooperation,*fn7 by failing to present mitigating evidence on his behalf,*fn8 and failing to bring up the cooperation issue at sentencing;*fn9 and (3) that this Court is compelled to resentence petitioner in light of his "substantial assistance" to the government as set forth in 18 U.S.C. § 3553(e) or because he meets "safety valve" criteria set forth in 18 U.S.C. § 3553(f).
I. Petitioner's Section 2241 Claims
Without reaching the merits of petitioner's claims, I find that they are not properly raised under § 2241.*fn10 It is well-settled law in this Circuit that am application pursuant to § 2241 "generally challenges the execution of a federal prisoner's sentence," not the imposition of the sentence itself. Jiminian v. Nash, 245 F.3d 144, 146-47 (2d Cir. 2001). For example, complaints arising from prison conditions or a prison official's computation of a prisoner's sentence can be challenged under § 2241.*fn11 Id. However, claims such as those discussed in the present application, which relate to the constitutionality of petitioner's guilty plea and to the court's imposition of the sentence based on this plea, should be brought under § 2255. Id. at 147; see also Chambers v. U.S., 106 F.3d 472, 474-75 (2d. Cir 1997). As explained in Melton v. U.S., "no matter what title the prisoner plasters on the [application's] cover . . . [i]t is the substance that controls" and a petitioner cannot avoid the requirements of § 2255 by "inventive captioning." 359 F.3d 855, 857 (7th Cir. 2004).
II. Conversion of a Motion from Section 2241 to Section 2255
The Second Circuit has restricted the power of district courts "to sua sponte convert post-conviction motions . . . without first giving the petitioner notice and an opportunity to decline the conversion or withdraw the motion." Simon v. U.S., 359 F.3d 139, 140, 142 (2d Cir. 2004) (noting that petitioner must be informed that recharacterization of a petition as a § 2255 petition means that any subsequent § 2255 application will be subject to the restrictions on 'second or successive' petitions and provided with the opportunity to withdraw the motion); see also Gitten v. United States, 311 F.3d 529 (2d Cir. 2002); Adams v. United States, 155 F.3d 582 (2d Cir. 1998). In light of these decisions I decline to characterize petitioner's motion as one brought pursuant to § 2255 sua sponte and instead deny the petition without prejudice to its renewal. If petitioner wishes to pursue his claims, he is directed to notify the Court in writing within ninety (90) days of the date of this decision of the specific rule or statute pursuant to which each of these applications is made.
Should petitioner decide to pursue relief pursuant to 28 U.S.C. § 2255, he should be aware that the one-year statue of limitations for § 2255 claims will apply to this petition.*fn12
Petitioner should also be aware that, with certain exceptions, a prisoner serving a federal sentence may bring only one § 2255 petition without leave of the Court; successive § 2255 petitions must be authorized by the Court of Appeals. As noted above, petitioner has already brought one § 2255 petition, which this Court granted. If petitioner files a § 2255 petition which this Court deems to be successive, it will be transferred to the Second Circuit Court of Appeals, which may decide not to permit him to pursue a successive petition. If petitioner files a § 2255 petition which this Court determines to be a first petition, future § 2255 petitions may be subject to the bar against successive petitions.*fn13
For the reasons set forth above, petitioner's application is denied without prejudice to its renewal. The Clerk is directed to transmit a copy of the within to all parties.
Charles P. Sifton (electronically signed) United States District Judge