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Greenland v. United States

United States District Court, Second Circuit

November 15, 2013

RONALD GREENLAND, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

OPINION AND ORDER

KIMBA M. WOOD, District Judge.

Petitioner Ronald Greenland brings this pro se petition ("Petition"), pursuant to 28 U.S.C. § 2255, asking the Court to vacate, set aside, or correct his sentence. Petitioner asserts that (1) he was denied effective assistance of counsel;(2) the Court committed error at sentencing by not giving Petitioner credit for time spent in Immigration and Customs Enforcement ("ICE") or state custody prior to being transferred to federal custody; (3) he was not subject to removal because his underlying conviction for arson did not constitute an "aggravated felony"; (4) the Court committed error by assigning two Criminal History points for Petitioner's 2010 state court conviction for Criminal Possession of Stolen Property; (5) the Court committed error by imposing supervised release as part of Petitioner's sentence; (6) the Court "double-counted" Petitioner's prior criminal convictions in calculating his Sentencing Guideline offense level; and (7) the Court committed error by not departing downward after considering Petitioner's argument regarding the disparity between districts that implement and do not implement the Fast-Track program. For the reasons set forth below, the petition is denied.

BACKGROUND

On August 18, 2010, Petitioner was indicted on the charge of unlawfully entering the United States subsequent to a conviction of an aggravated felony in violation of 8 U.S.C. §1326(a) and (b)(2). Petitioner appeared before the Court on December 21, 2010, for the purpose of pleading guilty to the indictment. As determined by the United States Probation Office, Petitioner's advisory United States Sentencing Guidelines range was 77 to 96 months' imprisonment. See Presentence Investigation Report ("PSR") at 25. On April 21, 2011, the Court sentenced Petitioner to 60 months' imprisonment. Petitioner filed a notice of appeal to the United States Court of Appeals for the Second Circuit. The Second Circuit concluded that Petitioner's arguments on appeal were without merit and affirmed Petitioner's judgment of conviction. See United States v. Greenland, 471 Fed.Appx. 74 (2d Cir. June 18, 2012). Petitioner timely filed this pro se petition pursuant to 28 U.S.C. § 2255 ("Section 2255") on September 24, 2012.

ANALYSIS

Section 2255 allows a convicted person being held in federal custody to petition the sentencing court for an order vacating, setting aside, or correcting his sentence. 28 U.S.C. § 2255. Relief pursuant to Section 2255 is available "only for 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.'" United States v. Bokun , 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States , 368 U.S. 424, 428 (1962)). The Court construes Petitioner's pro se submissions to raise the strongest arguments suggested. See Simmons v. Abruzzo , 49 F.3d 83, 87 (2d Cir. 1995).

I. PETITIONER RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL.

To prove that he was denied effective assistance of counsel, Petitioner must show (1) that counsel's performance fell below an "objective standard of reasonableness, " and (2) that he was prejudiced as a result. Strickland v. Washington , 466 U.S. 668, 688, 692 (1984); see also Kieser v. New York , 56 F.3d 16, 18 (2d Cir. 1995). The Court need not "address both components of the [Strickland] inquiry if the defendant makes an insufficient showing on one." Strickland , 466 U.S. at 697.

Petitioner argues that he was denied effective assistance of counsel because counsel failed to request a sentencing departure based on (1) the Government's delay in filing the indictment for illegal reentry, resulting in Petitioner's "lost opportunity" to serve his federal sentence concurrently with his state sentence, and (2) the time Petitioner spent in ICE custody. Neither claim demonstrates that counsel's performance fell below an objective standard of reasonableness.

Counsel for Petitioner did not fall below the "objective standard of reasonableness", by not seeking adjustment of sentence, because Petitioner would not have qualified for either adjustment. The Second Circuit has held that in order for a defendant to receive a sentencing departure based on prosecutorial delay which caused a missed opportunity for concurrent sentencing, the delay "must either have been in bad faith or have been longer than a reasonable amount of time for the government to have diligently investigated the crime involved..." United States v. Los Santos , 283 F.3d 422, 428 (2d Cir. 2002). In Los Santos, the Second Circuit found that a four month delay was a reasonable amount of time to investigate Los Santos' crime and confirm his identity. Id. at 429. The Second Circuit declined to establish a "bright line rule" as to what length of a delay would be unreasonable. Id.

Petitioner was arrested for Criminal Possession of Stolen Property, on November 25, 2009. (PSR ¶ 7). Petitioner was convicted of Criminal Possession of Stolen Property on April 12, 2010 and sentenced on May 19, 2010. (Gov't Memorandum in Opposition, Exhibit F). Petitioner was transferred to ICE custody on July 23, 2010 and the indictment in this case was filed on August 18, 2010. (PSR ¶¶ 1, 9). Any delay by the Government in prosecuting Petitioner was reasonably necessary to investigate the crime and Petitioner's identity, and was not in bad faith. Petitioner has 28 prior convictions in at least three different states, in which he used at least 17 different aliases and 10 different social security numbers. See PSR ¶¶ 28-77; Gov't Memorandum in Opposition at 12. Time and effort were required by the Government to confirm Petitioner's identity and extensive criminal history. Therefore, counsel's decision not to seek a downward departure on the ground of prosecutorial delay was reasonable and likely sound legal strategy. United States v. Gaskin , 364 F.3d 438, 468 (2d Cir. 2004)(quoting Strickland , 466 U.S. at 689) ("In applying this [Strickland] standard, a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound [legal] strategy.'").

Petitioner's assertion that he should receive credit for time spent in ICE custody is also without merit. "[T]ime... spent in ICE custody is considered administrative in nature, and not official detention' for purposes of 18 U.S.C. § 3585." Cuevas v. United States, No. 07 Civ. 10635, 2008 WL 2117597, at *1 n.3 (S.D.N.Y. May 15, 2008)(Buchwald, J.). Thus, counsel for Petitioner did not fall below the objective standard of reasonableness by not seeking a departure at sentencing on this ground.

II. THE COURT DID NOT COMMIT ERROR BY DECLINING TO GIVE PETITIONER CREDIT FOR TIME SERVED IN STATE CUSTODY AND ICE CUSTODY.

Petitioner's argument that the Court committed error by declining to give Petitioner credit for time served in state custody is meritless. Such a departure would have been contrary to Second Circuit law set forth in Los Santos. The Second Circuit rejected this same argument on Petitioner's direct ...


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