The opinion of the court was delivered by: Trager, J
Sewn Newton ("Newton" or "movant") filed this § 2255 motion seeking to vacate his sentence. For the reasons explained below, Newton's motion is denied.
On January 9, 2001, a .22 caliber weapon was discovered in Newton's apartment by New York State parole officers and officers of the New York City Police Department. At the time of the search, Newton had a number of state felony convictions on his record, which is discussed in depth infra. On January 10, 2001, Newton was charged under state and local law. On or about January 25, 2001, those charges were dropped and Newton was transferred to federal custody. On February 6, 2001, a federal grand jury sitting in the Eastern District of New York charged Newton in a single-count indictment with being a felon in possession of a firearm. Newton stood trial twice; the first trial ended in mistrial as the jury was deadlocked. Newton's second trial began on May 20, 2002; on May 24, 2002, the jury returned a verdict of guilty.
Prior to sentencing, the government submitted a letter stating that Newton qualified for enhanced sentence under 18 U.S.C. § 924(e) based on his prior convictions. Gov't's August 5, 2002 letter. The letter included certified copies of Newton's state criminal history, which showed that Newton had been convicted of attempted robbery in the second degree on two separate occasions (October 23, 1992 and July 15, 1993). The July 15, 1993 conviction, which Newton received under the alias Rodney Joyner, was later consolidated under Newton's NYSID number. Newton also had previously convicted, in 1995, of Criminal Possession of a Controlled Substance in the Third Degree with the Intent to Sell. Not only did this offense appear on Newton's criminal record, but Newton's counsel also stipulated to this fact before sentencing.
On November 25, 2002, Newton was sentenced to 180 months incarceration*fn1 , the minimum term permitted by statute, see 18 U.S.C. § 924(e)(1), five years' supervised release, and a $100 special assessment.
Newton's trial counsel ("trial counsel") stated at sentencing that although she had previously believed, based on the presentence report, that Newton's two attempted robbery convictions may have either been "one case or two cases that were essentially sentenced together," further research revealed that those two convictions "were, in fact, separate underlying events that were handled separately by the courts." Sentencing Tr. at 3. Trial counsel also stated that she could not, in good faith, argue that Newton's 1995 criminal possession conviction was not a qualifying felony for purposes of qualifying Newton as an armed career criminal, as Newton's conviction fell "solidly within the purview of the statute." Id. at 4. At sentencing, Newton personally raised a number of issues. Other than granting a downward departure based on Newton's unstable mental and emotional condition, all of Newton's arguments were denied.
Newton filed a timely appeal and on May 26, 2004 the Second Circuit issued an opinion rejecting Newton's claims that: (1) he was not in custody when interrogated by officers in his home on January 9, 2001; (2) his interrogation did not fall under the "public safety" exception of Miranda; (3) the parole and police officers exceeded the scope of their authority in searching his apartment; and (4) the government's summation warranted a new trial.
On September 2, 2004, Newton timely filed the instant motion pursuant to 28 U.S.C. § 2255. Newton's § 2255 motion was handwritten and barely legible; as such, it was very difficult to decipher exactly what arguments he is making.
Newton raises the following five claims*fn2 : (1) that the government's introduction, at sentencing, of two of Newton's prior convictions was improper; (2) that two of his prior felony convictions had been consolidated and, therefore, did not constitute separate offenses for purposes of determining his status as an armed career criminal; (3) that one of his prior felony convictions had been adjudicated when he was a juvenile; (4) that the double jeopardy clause was violated because he was indicted in federal the system after state charges had initially been filed against him; (5) that his appellate counsel was ineffective for failing to raise the consolidation and juvenile status issues on appeal.
Because Newton did not raise any of his first four claims on direct appeal, he is, therefore, barred from raising them in a § 2255 motion. Where a defendant "procedurally forfeits his claim by failing to raise it on direct review, the claim may be raised in a motion under § 2255 "only if the defendant can demonstrate either: (1) 'cause for failing to raise the issue, and prejudice resulting therefrom,' or (2) 'actual innocence.'" Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998) (citations omitted); see also Massaro v. United States, 538 U.S. 500, 504 (2003) ("[Generally], claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice."). Newton is unable to show cause, as he ...