United States District Court, E.D. New York
For Petitioner: Marcus Adams, pro se United States Penitentiary, Allenwood White Deer, PA.
Respondent: William Patrick Campos, Esq., United States Attorney's Office, Eastern District of New York, Brooklyn, NY.
MEMORANDUM & ORDER
JOANNA SEYBERT, District Judge.
Marcus Adams ("Petitioner") petitions this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. For the following reasons, his Petition is DENIED.
In 1993, Petitioner was convicted of assault in the first-degree in Nassau County Court and deported to Jamaica. (See Pre-Sentence Report ("PSR") ¶ 5.) Petitioner illegally reentered the United States in 2007. (See PSR ¶ 5.) On March 27, 2008, Petitioner was arrested by Nassau County Police Officers near his vehicle in Springfield Gardens in Queens, New York. (See PSR ¶ 2-3.) The passenger in Petitioner's car informed the police officers that Petitioner had a concealed firearm in his vehicle and that he regularly carried a firearm. (See PSR ¶ 4.) After a search of the vehicle, the officers found a.45 caliber semi-automatic pistol locked in a gun storage case behind the passenger seat. (See PSR ¶ 4.)
On September 18, 2008, Petitioner was transferred to federal custody. (See PSR ¶ 6.) On October 21, 2008, a federal grand jury indicted Petitioner on three counts: (i) Illegal Reentry of a Removed Alien, in violation of 8 U.S.C. § 1326(a); (ii) Possession of a Firearm by a Felon, in violation of 18 U.S.C. § 922 (g)(1); and (iii) Possession of a Firearm by an Illegal Alien, in violation of 18 U.S.C. § 922(g)(5)(A). (See Resp't's Br., Docket Entry 16, at 3.)
"On March 30, 2009, pursuant to a plea agreement, [Petitioner] pleaded guilty to Count Two of the indictment, charging possession of a firearm by a felon." (Resp't's Br. at 3 (citing Plea Tr., Docket Entry 16-2, at 15); see also Plea Tr. at 10:25-11:5.) In the plea agreement, Petitioner "expressly waive[d] his right to appeal and agree[d] not to file an appeal or otherwise challenge by petition pursuant to 28 U.S.C. § 2255 or any other provision the conviction or the sentence, if the Court imposes a term of 63 months or below." (Plea Agreement, Docket Entry 16-3, ¶ 4.) After fully reviewing the facts before the Court and questioning both parties, Magistrate Judge Tomlinson, who oversaw the plea hearing, held that Petitioner was acting voluntarily and that he understood his rights and the consequences of his plea. (See Plea Tr. at 21:21-25.) Judge Tomlinson held that there was a factual basis for the plea and accepted it. (See Plea Tr. at 21:24-22:2.)
On November 9, 2009, this Court conducted a Fatico hearing at which time the arresting Nassau County Police Detective, Timothy Slevin ("Slevin"), and Petitioner testified. (See generally Sentencing Hr'g Tr.,  Docket Entry 16-4.) Slevin testified as to an interview he conducted with Jonathan Knight, who was the victim of an assault by Petitioner. (See Sentencing Tr. at 9:1-12:15.) Petitioner assaulted Knight with a machete, causing Knight to need to staples on his head. (See Sentencing Tr. at 10:25-11:14.) This assault, and subsequent interview, caused Slevin to pursue Petitioner, which lead to Petitioner's March 2008 arrest.
Petitioner testified that he illegally re-entered the United States and illegally purchased a fake Canadian passport. (See Sentencing Tr. at 34:3-22.) Petitioner also testified that he had been convicted previously for assault. (See Sentencing Tr. at at 38:12-13.) Further, Petitioner stated that he knew the weapon was in his car on the date of his arrest. (See Sentencing Tr. at 52:24-25.)
The Court concluded that the evidence supported Petitioner's arrest and that Petitioner's history of violence "[led] the Court to believe that [Petitioner] is indeed dangerous." (See Sentencing Tr. at 55:5-12.) The Court reviewed the PSR, which advised the Court that the Sentencing Guidelines provided a guideline range of thirty to thirty-seven months imprisonment. (See PSR ¶ 73.) The Court, stated, however:
The underlying conviction before this Court is again for possession of a weapon. And the Court is troubled with that in view of [Petitioner's] prior ten-year term for a violent crime and [Petitioner]'s subsequent actions, returning to the United States illegally, having a gun in his possession, and a false driver's license. And the underlying arrest which was dismissed in satisfaction of this case basically.
So the Court finds these to be aggravating factors... And the Court believes that these can be the basis for a sentence outside the guidelines.
(Sentencing Tr. at 56:3-15.) The Court sentenced Petitioner to sixty-three months imprisonment. (See ...