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Brooks v. United States

August 24, 2009

DWIGHT BROOKS, PLAINTIFF,
v.
UNITED STATES, DEFENDANT.



The opinion of the court was delivered by: Sifton, Senior Judge

MEMORANDUM OPINION AND ORDER

Petitioner Dwight Brooks pled guilty on July 17, 2007 to possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). On October 22, 2008, I sentenced petitioner to 31 months imprisonment, three years of supervised release, and a $100 assessment. Now before the Court is a habeas petition brought pursuant to 28 U.S.C. § 2255, in which petitioner argues that the imposition of a term of supervised release pursuant to 18 U.S.C. § 3583*fn1 is unconstitutional. For the reasons stated below, the petition is denied.

BACKGROUND

The following facts are taken from the parties' submissions in connection with this motion.

On March 1, 2007, New York City police officers executed a search warrant at petitioner's residence. Presentence Investigation Report ¶ 3 ("PSR"). After officers entered petitioner's apartment, officers stationed on the roof of the building observed petitioner drop a plastic bag out of one of the windows. Id. The bag was recovered and found to contain a loaded gun, a bag containing cocaine, and an envelope containing heroin. Id. A search of petitioner's apartment uncovered $18,007 in United States currency, numerous glassine envelopes, a scale, two black ski masks and cellular telephones. Id.

On July 17, 2007, petitioner pled guilty to being a felon in possession of a firearm. The plea agreement contained a clause stating that petitioner agreed "not to file an appeal or otherwise challenge by petition pursuant to 28 U.S.C. § 2255 or any other provision of the conviction or sentence in the event that the Court imposes a term of imprisonment of 41 months or below." Ex. A at ¶ 4. At the plea proceeding, I advised the defendant that he was giving up his right to appeal his sentence, and he stated that he understood that he was waiving that right. Transcript of Plea Proceedings at 13 ("Tr.").

On March 3, 2008, I sentenced petitioner to 37 months imprisonment and three years supervised release.*fn2 Petitioner subsequently filed a Rule 35 motion arguing that the sentence was in error, given that he had spent 10 months in solitary confinement prior to sentencing, which should have been taken into account in sentencing him. I granted the motion on October 22, 2008 and re-sentenced petitioner to 31 months imprisonment. Petitioner did not appeal his conviction or sentence.

In his petition for habeas relief, petitioner argues that imposition of a term of supervised release is unconstitutional for the following reasons: (1) supervised release is a separate punishment from the one imposed for the specific crime committed. Therefore, the imposition of supervised release in addition to the term of imprisonment specified by the Sentencing Guidelines and individual criminal statutes results in double jeopardy; (2) the statute authorizing the imposition of supervised release, 18 U.S.C. 3583, requires that the term of supervised release occur within the term of the sentence;*fn3 (3) the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed. 2d 621 (2005), requires a return to the sentencing regime in place before the imposition of the Sentencing Guidelines in 1987, including a return to the use of parole rather than supervised release; (4) Congress unlawfully exceeded its powers when it authorized the imposition of supervised release, and the administration of supervised release by the probation department, an arm of the courts, violates the separation of powers; (5) supervised release violates the Eighth Amendment; and (6) the government has fraudulently misrepresented the law controlling imprisonment.

DISCUSSION

I. Timeliness

The submissions indicate, and respondent does not contest, that petitioner has timely filed his petition within one year of the date his conviction became final. See 28 U.S.C. § 2255 (f).

II. Waiver

The government argues that petitioner has waived his right to bring this petition, as evidenced by his signing of a plea agreement in which he agreed not to file an appeal or otherwise challenge his conviction in the event he was sentenced to a term of imprisonment under 41 months. A defendant's agreement to waive his right to appeal or collaterally attack his sentence is generally enforceable as long as the record contains sufficient evidence to establish a knowing and voluntary waiver. See United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001); United States v. Garcia, 166 F.3d 519, 521 (2d Cir. 1999). In the context of claimed waivers of appellate rights, "plea agreements are to be applied narrowly and construed strictly against the Government." United States v. Tang, 214 F.3d 365, 368 (2d Cir. 2000) (quotation marks omitted). Similarly, a waiver of a right to challenge a sentence by collateral attack through a § 2255 motion is enforceable. See Garcia-Santos v. United States, 273 F.3d 506, 508 (2d Cir. 2001).

Petitioner's plea agreement includes a waiver of the right to appeal or collaterally challenge the conviction or sentence. During the plea proceedings on July 17, 2007, I asked petitioner whether he understood that he was giving up his right to appeal his sentence, and he indicated that he did. Tr. 13 . I did not ask during the proceedings whether the petitioner understood he was giving up his right to attack his sentence by other means, including habeas review. However, petitioner does not claim that he did ...


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