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Douchette v. United States

United States District Court, W.D. New York

July 10, 2017

JAMES DOUCHETTE, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 6:10-cr-06058-MAT

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Presently pending before the Court are the Motion to Vacate the Sentence pursuant to 28 U.S.C. § 2255 (“Original § 2255 Motion”) (Dkt #356) filed pro se by James Douchette (“Movant” or “Douchette”); the Motion to Amend the Motion to Vacate (Dkt #369) filed pro se by Douchette; and the Supplemental Motion to Vacate (“Supplemental § 2255 Motion”) (Dkt #431), filed by the Federal Public Defender. Also pending is the Federal Public Defender's Motion to Withdraw as Counsel (“Motion to Withdraw”) (Dkt #441). For the reasons discussed herein, the Original § 2255 Motion is denied; the Motion to Amend the Motion to Vacate is granted, but the claims raised therein are denied; the Supplemental § 2255 Motion is denied; and the Motion to Withdraw is granted.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On March 11, 2010, a Federal grand jury returned an 11-count indictment against Douchette and ten co-defendants. Count 1 charged Douchette with a violation of 21 U.S.C. § 846; Count 4 charged him with a violation of 21 U.S.C. § 856 (a)(1); Counts 5 and 6 charged him with violations of 18 U.S.C. § 924(c)(1); Count 7 charged him with a violation of 18 U.S.C. § 922(g)(1); and Counts 8 and 9 charged him with violations of 21 U.S.C. § 841(a)(1).

         On March 12, 2010, Douchette appeared before the Court (Siragusa, D.J.) and, pursuant to his written plea agreement with Respondent, entered a plea of “guilty” to Counts 1 and 6. The plea agreement was executed in open court following an extensive plea colloquy. Judge Siragusa confirmed that Douchette was adequately informed of the nature of the charges (P.2-3, 12-13), [1] did not dispute the facts underlying the charges to which he pled guilty (P.41-45), understood the material terms of the agreement and the consequences of pleading guilty (P.4-5, 12-24, 33), had not been coerced into pleading guilty (P.40), and was satisfied with the representation provided by defense counsel (P.11).

         Based on Douchette's provision of substantial assistance, the Government filed a motion pursuant to 18 U.S.C. § 3553(e) and United States Sentencing Guidelines (“USSG”) § 5K1.1, requesting 5-level downward departure, which resulted in a sentencing range of 210 to 262 months. At the sentencing hearing on July 23, 2012, Judge Siragusa, after considering the extent of Douchette's cooperation, imposed a 216-month aggregate term of imprisonment. (S.26-28).[2]

         Douchette did not file a direct appeal.

         SECTION 2255

         Section 2255 provides, in relevant part, as follows: “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(a). A court may dismiss a Section 2255 motion without a hearing if the motion and the record “conclusively show[, ]” id., that the movant is not entitled to relief. See, e.g., Chang v. United States, 250 F.3d 79, 85-86 (2d Cir. 2001) (district court was not required to hold full testimonial hearing before deciding federal prisoner's motion to vacate, set aside or correct sentence based on claim of ineffective assistance of counsel alleging that counsel prevented him from exercising his right to testify on his own behalf, where prisoner made only general allegation, and record was supplemented by detailed affidavit from trial counsel credibly describing circumstances concerning prisoner's failure to testify).

         DISCUSSION

         I. Erroneous Addition of Currency to the Forfeiture Violation

         In the Motion to Amend the Motion to Vacate, Douchette asserts that a sum of U.S. currency (approximately $14, 290.00) was mistakenly added by the Government to the charged violation of 21 U.S.C. § 853(a)(1) and (2). According to Douchette, this amount of currency was not part of the offense conduct but was instead “currency that [his] family was putting aside to retain a paid practitioner in this case.” (Supplemental § 2255 Motion (Dkt #369), p. 1). Douchette requests “reimburse[ment] of the $ 14, 290.00 where the currency was not a part of the conspiracy in this case.” (Id.).

         As an initial matter, the Court notes that “[t]he plain language of § 2255 requires that the movant be in custody and claim a right to be released from that custody in order to maintain a § 2255 motion.” Mosley v. United States, No. 92-CR-51, 1995 WL 118180, at *3 (N.D.N.Y. Mar. 8, 1995). Here, to the extent that Douchette fails to challenge his term of incarceration and seeks only the return of his forfeited property, he cannot obtain relief under § 2255. Id. ...


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