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Lewis v. United States

March 11, 2009


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



Now before the Court is the pro se petitioner's application to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the application is denied.

28 U.S.C. § 2255

Section 2255 provides, in relevant part, as follows: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255. The Court may dismiss a section 2255 petition without conducting a hearing if the petition and the record "conclusively show" that petitioner is not entitled to relief. Id . As will be seen below, petitioner's arguments and submissions do not merit an evidentiary hearing.


The background facts of this case are accurately set forth in Respondent's brief (Document [#289]) and in the decision by the Second Circuit Court of Appeals in U.S. v. Lewis , No. 01-1494, 45 Fed. Appx. 28, 2002 WL 2009352 (2d Cir. Sep. 3, 2002). For purposes of the instant application, it is sufficient to note the following facts.

Between October 1996 and April 5, 1997, Petitioner was living "on the streets of Rochester," New York. (Trial Transcript [#218] at 5). On April 5, 1997, Petitioner, who was then age sixteen, was arrested and charged, in Monroe County Court, State of New York, with Robbery in the Second Degree, Assault in the Second Degree, and Larceny in the Fourth Degree.*fn1 Petitioner was convicted and sentenced to one year in jail. Petitioner remained in the Monroe County Jail until December 1997.

Upon being released from the Monroe County Jail, Petitioner went to live in Jamestown, New York. Specifically, Petitioner stayed in a residence at 419 Lincoln Street in Jamestown, along with Benjamin Shury ("Shury") and a man named Omar. (Trial Transcript [#218] at 33-34). On March 25, 1998, Petitioner was arrested, along with Shury and Omar, and charged with Criminal Possession of a Controlled Substance in the Third Degree. At trial in the instant case, Petitioner admitted that Shury and Omar were selling crack cocaine, but denied that he was involved. ( Id . at 34). Nevertheless, Petitioner pled guilty to Criminal Possession of a Controlled Substance (crack cocaine) in the Seventh Degree, and was sentenced to one year in jail. Petitioner was released from the Chautauqua County Jail on February 1, 1999. Upon being released from jail, Petitioner was picked up by Shury and Tracy Roach ("Roach"), in Roach's car. ( Id . at 37). Petitioner returned to Jamestown and remained there until September 1999. In Jamestown, Petitioner rented an apartment, at 4581/2 Allen Street, using Roach's name on the lease.

On April 8, 1999, Petitioner sold crack cocaine to an undercover officer at 21 Van Buren Street in Jamestown, but was not immediately arrested. In July 1999, Jamestown Police Officer David Mitchell ("Mitchell") filed an accusatory instrument in Jamestown City Court against Petitioner, charging him with Criminal Sale of a Controlled Substance in the Third Degree. On September 15, 1999, Mitchell approached Petitioner about cooperating in a drug investigation. That evening, Petitioner arranged a meeting with Mitchell. However, when Mitchell arrived, Petitioner ambushed him, shooting him in the face. Petitioner also attempted to shoot Mitchell's partner, Police Officer Scott DePietro ("DePietro").

On September 16, 1999, Petitioner was charged, in Chautauqua County Court, with crimes including the attempted murder of Mitchell and DePietro. On August 30, 2000, Petitioner was convicted of Attempted Murder in the First Degree, Aggravated Assault, Attempted Aggravated Assault, and Criminal Use of a Firearm in the First Degree, and received an aggregate indeterminate sentence of fifty years to life in prison.

On August 10, 2000, in this Court, Petitioner, along with Roach, Shury, and other defendants, was charged in a Second Superseding Indictment, with conspiracy to distribute and possess with intent to distribute marijuana and 50 grams or more of cocaine base, between March 1996 and September 1999 (Count 1). Petitioner was also charged with distribution of cocaine base on or about April 8, 1999, in Jamestown, New York (Count 8), distribution of cocaine base on or about April 14, 1999, in Jamestown (Count 9), and possession, use and discharge of a firearm in connection with a drug trafficking crime (Count 10), in violation of 21 United States Code ("USC"), § § 846 and 841(a)(1), and in violation of 18 USC § 924(c)(1). Petitioner was represented at trial and on appeal by Christopher Ciaccio, Esq. ("Ciaccio").

Prior to trial, Ciaccio filed an omnibus motion, which included a motion "to suppress evidence seized upon execution of a search warrant at 419 Lincoln Street, Jamestown, New York," on March 25, 1999. (Omnibus Motion [#45] ¶ ¶ 24, 28). In that regard, Petitioner alleged that "the warrant was issued without evidence of probable cause; and/or the informant information upon which the warrant was based was known to be unreliable." ( Id . ¶ 25). The application further stated: "However, Defendant has not been provided a copy of the search warrant application, so it is impossible at this juncture to show the court facts supporting the allegations." ( Id . ¶ 26). Petitioner also alleged that the seizure resulted in his arrest and eventual guilty plea "to a misdemeanor possession charge," and that the use of the seized evidence in the underlying prosecution would result in double jeopardy.

In opposition to the motion, the Government argued that Petitioner had not made any factual allegations establishing either a legitimate expectation of privacy in the location of the search or a property or possessory interest in the property seized. (Response [#47] at 14). The Government further maintained that there was probable cause for the granting of the warrant, and that the police had relied in good faith on the warrant. ( Id . at 15). On April 18, 2000, ...

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