United States District Court, E.D. New York
PETER PAUL, PETITIONER, Pro se, Anthony, NM.
For Respondent: SYLVIA SHWEDER, ESQ., ASSISTANT UNITED STATES ATTORNEY, LORETTA E. LYNCH, UNITED STATES ATTORNEY, EASTERN DISTRICT OF NEW YORK, Brooklyn, New York.
MEMORANDUM AND ORDER
LEONARD D. WEXLER, UNITED STATES DISTRICT JUDGE.
Petitioner Peter Paul, (" Petitioner" or " Paul" ), moves for an order pursuant to 28 U.S.C. § 2255, vacating his conviction entered after a plea of guilty to one count of securities fraud. Paul was sentenced to a 120 month term of imprisonment, three years of supervised release and a special assessment of $100. He was later ordered to pay restitution in excess of $3.8 million to Merrill Lynch, and in excess of $7.6 million to Spear, Leeds & Kellogg. As to his term of imprisonment, Paul was given credit for time served while in the custody of a Brazilian prison, prior to his extradition to this country. Paul is presently serving what remains of his sentence.
As discussed below, Paul's petition is denied because the grounds raised have either been waived by virtue of his guilty plea, previously rejected by the Second Circuit Court of Appeals and/or are without merit.
I. Prior Proceedings
A. The Plea of Guilty and Sentence
In March of 2005, Paul pleaded guilty to one count of securities fraud, in violation of 15 U.S.C. § § 78j and 78ff. In connection with his plea Paul waived any right to appeal so long as the court imposed a sentence of 120 months or less. As a result of several adjournments, Paul was not sentenced until June 25, 2009, when he was sentenced to serve a 120 month term of imprisonment along with three years of supervised release.
As indicated in the plea agreement and the transcript of the plea allocution proceedings, it was clear that so long as the sentence imposed did not exceed 120 months, Paul waived any right to appeal. This court specifically discussed both the waiver and the issue of whether Paul was satisfied with the representation provided by counsel. Paul, who was trained as an attorney, responded that he had reviewed the plea agreement with his attorney and was satisfied with his representation. The court twice followed up as to the waiver issue, stating that " You can't appeal the plea, because as I said, by pleading guilty you are waiving the substantive part and now if I give you 120 months or less, you can't appeal the sentence. You understand that?" Paul responded affirmatively.
Shortly after sentencing, this court ordered the payment of restitution as noted above. As to his term of imprisonment, Paul was given credit for time served while in the custody of a Brazilian prison, prior to his extradition to this country. Paul was not given credit for time served on pretrial release under home confinement restrictions. On October 23, 2009, Paul's judgment of conviction was amended to reflect the court's recommendation that the Bureau of Prisons designate Paul to a federal correctional institution close to his family home in North ...