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Rosario v. United States

April 11, 2008


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1


Pro se petitionerFrancisco Rosario ("Petitioner") filed the instant two motions to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 on June 30, 2005 and September 24, 2007. The Government submitted a memorandum in opposition to both motions on March 14, 2008. For the reasons set forth below, Petitioner's motions are DENIED.


On April 4, 2000, Petitioner pleaded guilty to conspiracy, with intent to distribute, five kilograms or more of cocaine. On May 4, 2000, this Court sentenced him to 120 months' incarceration to run concurrently with his state sentence, followed by five years of supervised release. Judgment, No. 98 Cr. 01038-015 (HB) (May 4, 2000). On May 8, 2000, Petitioner filed with this Court a Notice of Appeal of his sentence to the Second Circuit. On November 16, 2000, he moved to withdraw his appeal, and the Circuit granted his motion on November 29, 2000. Appeal No. 00-1434 (2d Cir.). On July 24, 2001, Petitioner completed his state sentence and was transferred back into federal custody.

On December 11, 2001, Petitioner filed a habeas petition pursuant to 28 U.S.C. § 2241 in the Eastern District of New York; it was transferred to this district on May 1, 2002 ("2001 Petition"). Petitioner sought to gain credit for the eighteen months he spent in federal detention prior to his guilty plea, but this Court denied his petition, finding that the Bureau of Prisons had properly deducted the time Petitioner spent in federal detention from his state sentence because Petitioner was serving his state sentence while he was on loan to the federal authorities. Rosario v. United States, No. 02 Civ. 3360, 2004 WL 439386, *4 (S.D.N.Y. Mar. 9, 2004). In the alternative, petitioner asserted a 28 U.S.C. § 2255 claim. This Court denied that claim, as well, as both time and procedurally barred because it was filed more than one year after Petitioner's conviction and because Petitioner had failed to address the legality of his sentence on direct appeal. Id., at *5. Furthermore, this Court held that even if Petitioner's claim could be considered on the merits, it would nonetheless fail because there was no error in his sentence.

On June 30, 2005, Petitioner filed one of the two instant motions to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (the "2005 Motion"). Petitioner alleges that his sentence was extended in violation of his Sixth Amendment right to a jury trial and that judicial fact-finding concerning his prior conviction violated the Sixth Amendment. Petr.'s Mot., No. 05 Civ. 6096, at 5 (June 22, 2005) ("2005 Mot."). The Government never responded to Petitioner's 2005 Motion, despite an Order issued September 9, 2005 by Judge William Pauley, to whom the 2005 Motion originally was assigned, directing the Government to respond. Order, No. 05 Civ. 6096 (Sept. 9, 2005).

On September 24, 2007, Petitioner filed a second motion pursuant to 28 U.S.C. § 2255, dated March 13, 2007 (the "2007 Motion"), requesting a downward departure in his sentence based on a memorandum dated April 28, 1995 by the United States Attorney General titled "Deportation of Criminal Aliens." Petr.'s Mot., No. 07 Civ. 8260 (Sept. 24, 2007) ("2007 Mot."). The memorandum, according to Petitioner, permits the Government to offer up to a two-level downward departure from the applicable guideline sentencing range in exchange for the alien's concession of deportability and agreement to accept a final order of deportation. See Memorandum to All Federal Prosecutors from Attorney General, re Deportation of Criminal Aliens (Apr. 28, 1995), at Petitioner also alleges violations of the Equal Protection Clause of the Fourteenth Amendment, the Due Process Clause of the Fifth Amendment and the Equal Rights Act of 1964 because aliens do not receive the same benefits and privileges as United States citizens. 2007 Mot., at 1.


To prevail on a 28 U.S.C. § 2255 claim, a petitioner must show either that (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; or (3) the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. See Woodard v. United States, No. 04 CIV 9695,2005 U.S. Dist. LEXIS 26802, at *6 (S.D.N.Y. Nov. 8, 2005) (citing Johnson v. United States, 313 F.3d 815, 817 (2d Cir. 2002)); 28 U.S.C. § 2255.


A. Jurisdiction

Although Petitioner titled his second petition, "Motion for Time Reduction by an Inmate in Federal Custody Under 28 U.S.C. § 2255," the petition raises claims under both 28 U.S.C. §§ 2241 and 2255. As the Second Circuit explained in Chamber v. United States, 106 F.3d. 472, 474 (2d Cir. 1997), §§ 2241 and 2255 address different types of claims. "A petitioner seeking to challenge the legality of the imposition of a sentence by a court may therefore make a claim pursuant to Section 2255. . . . A challenge to the execution of a sentence, however, is properly filed pursuant to Section 2241." Id.

Petitioner argues that his equal protection and due process rights were violated because a United States citizen is entitled to different sentencing privileges than an alien. 2007 Mot., at 1-2. The Government argues that this portion of Petitioner's claim should be analyzed under § 2241 because it challenges the "execution of his sentence by the [Bureau of Prisons]." Resp't's Opp'n, No. 07 Civ. 8260, at 11-12 (Mar. 14, 2008). The Government contends that this Court therefore does not have jurisdiction to decide the § 2241 portion of Petitioner's claim because Petitioner was required to file it in the Northern District of Texas, where he is incarcerated.*fn2 Resp't's Opp'n, at 11-12. In the interests of justice and judicial economy, this Court will construe the entirety of Petitioner's 2007 Motion as seeking relief under 28 U.S.C. § 2255, and will decide all the issues it raises.

B. Petitioner Did Not Comply with the Requirement for Successive Petitions Set Forth in ...

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