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Abbey v. United States

United States District Court, Second Circuit

July 29, 2013

JOSEPH ABBEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief District Judge.

I. INTRODUCTION

Presently before this Court is Petitioner Joseph Abbey's 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.

II. BACKGROUND

On September 2, 2010, Petitioner appeared before this Court and pled guilty to conspiring to possess with intent to distribute, and to distribute controlled substances, in violation of 21 U.S.C. § 846. (Docket Nos. 291, 294.) The charge carried a maximum possible sentence of 40 years, a fine of $2, 000, 000, a mandatory $100 special assessment and a term of supervised release of at least four years and up to life. (Docket No. 291.)

In the plea agreement, Petitioner and the Government agreed that the total offense level, including a reduction for Petitioner's acceptance of responsibility, was 27, and that Petitioner's criminal history category was I, which resulted in a Guidelines sentencing range of 70 to 87 months, a fine of $12, 500 to $2, 000, 000, and a period of supervised release of four to five years. (Docket No. 291.)

On April 5, 2012, this Court sentenced Petitioner to a non-Guideline sentence of time served, and a five year period of supervised release, to be unsupervised if deported. (Docket No. 566.) Thereafter, the Department of Homeland Security took Petitioner into custody and commenced removal proceedings against him.

On June 20, 2012, Petitioner filed a "Notice of Motion to Vacate Guilty Plea Pursuant to 28 U.S.C. § 1651 et seq. " This Court recharacterized Petitioner's motion as a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Motion to Vacate"). (Docket No. 589.) The parties completed briefing on October 5, 2012, at which time this Court took the motion under advisement without oral argument.

III. DISCUSSION

A. Standard of Review

Twenty-eight 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, ...


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