The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Presently before this Court is Petitioner Hugh Stevens Motion to Vacate, Set Aside, or Correct his Sentence and Conviction pursuant to 28 U.S.C. § 2255. For the reasons discussed below, Petitioner's motion is denied.
On September 10, 2009, Petitioner appeared before this Court and pled guilty to Count Six of the Superseding Indictment in case number 04-CR-222S and Count One of the Superseding Indictment in case number 09-CR-304S which charged him with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848(a), and conspiracy to import, possess and distribute a List I chemical knowing and having reasonable cause to believe it will be used to unlawfully manufacture a controlled substance in violation of 21 U.S.C. § 846. (Docket No. 456.)*fn1
In the plea agreement, Petitioner and Respondent agreed that the total offense level, including a reduction for Petitioner's acceptance of responsibility, was 42, and that Petitioner's criminal history category was I, which resulted in a Guidelines sentencing range of 360 months to life, a fine of $25,000 to $2,000,000, and a period of supervised release of three to five years. (Docket No. 456, ¶ 13.)
Included in the plea agreement is Petitioner's acknowledgment that he is not a citizen of the United States and that the defendant is on notice that the defendant's ability to enter, remain and/or reside in the United States is subject to the laws, regulations and associated policies of the Department of Homeland Security. The defendant understands that any effect that the defendant's conviction in this action will have upon the defendant's immigration status will be determined by the Department of Homeland Security in a separate proceeding. The defendant has had an opportunity to fully determine what the consequences of the defendant's conviction may be on the defendant's immigration status.
Further, the parties agreed that after sentencing the Office of the United States Attorney for the Western District of New York agrees not to oppose a request by the defendant to transfer to Scotland for service of his sentence, pursuant to the terms of the Treaty for the Transfer of Offenders between the United States and Scotland. The defendant understands that the decision of any such transfer, however, is at the discretion of the Office of Enforcement Operations of the United States Department of Justice.
Based on this agreement, Respondent "knowingly waive[d] the right to appeal and collaterally attack any component of a sentence imposed by the Court which falls within or is less than the sentencing range for imprisonment, a fine and supervised release." (Docket No. 456, ¶ 25.) Further, the parties agreed that there were "no promises made by anyone other than those contained in this agreement." (Docket No. 456, ¶ 28.)
On March 17, 2010, this Court sentenced Petitioner to a term of 240 months. (Docket No. 514.) This Court also imposed a period of supervised release for a term of three years. (Docket No. 514.) No fine was imposed. (Docket No. 514.) The Clerk of the Court filed the sentencing judgment on December 22, 2006. (Docket No. 519.) Petitioner did not appeal his conviction or sentence.
On March 14, 2011, Petitioner filed the instant Motion to Vacate, Set Aside, or Correct his Sentence and Conviction pursuant to 28 U.S.C. § 2255. (Docket No. 540.) With leave, Petitioner filed an amended motion to vacate on September 6, 2011. (Docket No. 550.) Respondent filed an affidavit in opposition to the petition on October 13, 2011. (Docket No. 552.) Petitioner was then granted permission to file a reply, which he did on December 6, 2011. (Docket No. 555.) Petitioner filed a request for a status conference on May 7, 2012. (Docket No. 556.)
28 U.S.C. § 2255 allows federal prisoners to challenge the constitutionality of their sentences.That section provides, in pertinent part, that
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 Second Circuit has held that a "collateral attack on a final judgment in a criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a fundamental defect which inherently results in a complete miscarriage of justice.'" Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (per curiam) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)).
B. Petitioner's § 2255 Motion
In his motion, Petitioner advances the following arguments: (1) he was denied effective assistance of counsel based on his counsels' failure to accomplish transfer to Scotland; (2) the Respondent breached the terms of the plea agreement; and (3) his plea was involuntary because it was unduly influenced by counsels' promises. Respondent argues that Petitioner's claims are ...