This motion was originally filed as a petition under 28 U.S.C. § 2241. In response to an order of the district court, it was changed to a motion under 28 U.S.C. § 2255. It was thereafter referred to as the Amended Motion.
Strother was convicted in 1996 of involvement in a drug conspiracy, and was sentenced to 262 months in prison. He is now serving that sentence.
Strother now moves pursuant to 28 U.S.C. § 2255 to vacate his sentence on the ground that the wiretap evidence used against him at trial should have been suppressed. The Government opposes the motion. The motion is denied.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to his trial, on June 10, 1996, Strother moved to suppress all Government wiretap evidence. Strother argued that the evidence supporting the Government's application for a wiretap was insufficient as a matter a law because:
(1) The application was based on an incorrect Attorney General Authorization Number, and
(2) The application was improperly sworn to before a notary public rather than a United States District Judge as required by 18 U.S.C. § 2518(1).
This motion was denied by the court on September 26, 1996.
Strother was tried partly on the basis of this wiretap evidence and convicted on October 11, 1996. On December 8, 1997, Strother was sentenced to the 262 months' imprisonment.
Strother appealed his conviction to the Second Circuit. In his appeal, Strother argued that the court had given improper instructions to the jury, the court lacked venue over two of the counts for which Strother was convicted, and the court used an improper guidelines offense level in sentencing. Strother did not argue that the court erred in admitting the wiretap evidence.
On March 1, 1999, Strother's conviction was affirmed. United States v. Piggott, 175 F.3d 1009 (2d Cir. 1999), cert. denied, 120 S.Ct. 113 (1999). The Supreme Court denied certiorari on October 4, 1999.
CLAIMS IN THE § 2255 MOTION
In his current § 2255 motion, Strother argues that his conviction is based on wiretap evidence obtained in violation of 18 U.S.C. § 2518 and the Fourth Amendment. The arguments underlying Strother's petition are the same arguments Strother asserted in his pretrial motion, noted above, which sought to suppress the wiretap evidence: namely, that the application for the wiretap contained an improper ...