United States District Court, S.D. New York
OPINION & ORDER
A. CROTTY, United States District Judge
March 21, 2013, a jury convicted petitioner David Levy of one
count of conspiracy to commit securities and wire fraud,
three counts of securities fraud, and one count of money
laundering. On January 24, 2014, the Court sentenced Mr. Levy
to 108 months of imprisonment. He now moves, pursuant to 28
U.S.C. § 2255, to modify that judgment and sentence; or
alternatively to correct a clerical error under Fed. R. Crim.
P. 36; or alternatively for a writ of coram nobis. Mr. Levy
seeks a correction of an allegedly erroneous notation on a
fugitive warrant identified in his Presentence Investigation
Report ("PSR"). This claimed inaccuracy resulted in
adjustment to Mr. Levy's security score calculated by the
Bureau of Prisons ("BOP"), and thus prevented his
transfer to a less secure prison.
application is denied: 28 U.S.C. § 2255 is not available
for the relief Mr. Levy seeks; his other requests are without
merit; and the Southern District of New York is not the
appropriate forum for the relief sought.
Mr. Levy's conviction on January 7, 2014, the United
States Probation Office issued its PSR. (Petitioner's
Motion to Vacate under 28 U.S.C. § 2255, Dkt.
("Pet."), 1); (Jury Verdict, Dkt. 274). The PSR
summarized Mr. Levy's personal and criminal history, the
facts behind Mr. Levy's convictions, and relevant
Guidelines calculations. (Government's Memorandum in
Opposition, Dkt. 503 ("Gov't Opp."), 2-3). The
PSR identified a battery charge to which Mr. Levy pleaded
nolo contendere, and a prior conviction for
unlicensed telemarketing. (Gov't Opp., 3). Both counted
toward Mr. Levy's criminal history score. (Id.).
Other arrests were identified but did not count toward Mr.
Levy's applicable Guidelines calculation. (Id.).
these arrests occurred in 1988 on a fugitive warrant. (Pet.,
1). In Mr. Levy's PSR, the status of the fugitive warrant
was marked "Unknown" because the Probation Office
had requested but had not received information about the
arrest from the issuing police department. (Pet., 2).
According to Mr. Levy, the fugitive warrant was related to a
New Jersey charge for "theft by reason of failure to
make required disposition of property." (Pet., 1). He
contends that the New Jersey theft charge was ultimately
dismissed, and that the fugitive warrant on his PSR should
reflect this history, potentially lowering his security score
as calculated by the BOP. Mr. Levy concedes that the fugitive
warrant did not result in the addition of any points under
the Sentencing Guidelines. (Pet., 12).
Court sentenced Mr. Levy to 108 months imprisonment, and
recommended that the BOP grant Mr. Levy's request to be
designated to a facility in the Miami, Florida area. (Pet.,
4). The BOP initially designated Mr. Levy to Coleman Medium
in Southern Florida for one and a half years. He was then
transferred to a low security facility, where he has spent a
year. Mr. Levy has served his sentence in Southern Florida,
and his security classification has subsequently been reduced
to minimum. The BOP, however, has rejected Mr. Levy's
request for transfer to a minimum security satellite prison
camp. The Government explains that the BOP based its decision
on Mr. Levy's prior conviction for battery and the
fugitive warrant and arrest. (Gov't Opp., 4). Mr.
Levy's Petition followed.
I. Motion to Modify Judgment and Sentence Under 28
U.S.C. § 2255
Section 2255 does not allow for the relief Mr. Levy seeks.
"A motion under section 2255 must... be directed to the
sentence as it was imposed, not to the manner in which it is
being executed." Dioguardi v. United States,
587 F.2d 572, 573 (2d Cir. 1978); see also Roccisano v.
Menifee, 293 F.3d 51, 57 (2d Cir, 2002). In contrast,
"[a] challenge to the execution of a sentence
... is properly filed pursuant to Section 2241."
Chambers v. United States, 106 F.3d 472, 474 (2d
Cir. 1997). Regarding Section 2241, execution includes
"such matters as . .. prison transfers, type of
detention and prison conditions." Jiminian v.
Nash, 245 F.3d 144, 146 (2d Cir. 2001).
Levy seeks a correction to the PSR so that the BOP might
lessen the severity of his confinement, such as allowing him
access to a less secure facility or furloughs. (Petitioner
David Levy's Reply, Dkt. 508 ("Pet. Reply")).
But, the regulations that Mr. Levy complains of are
explicitly listed as executions of sentence by the Second
Circuit. See Jiminian v. Nash, 245 F.3d 144, 146 (2d
Cir. 2001). Challenges to the execution of confinement, in
this case the ability to transfer to a less secure facility
or the conditions of confinement, must be brought under
Section 2241 as opposed to Section 2255. See Id.
Furthermore, "with respect to habeas petitions designed
to relieve an individual from oppressive confinement, the
traditional rule has always been that the Great Writ is
issuable only in the district of confinement."
Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004)
(internal quotation marks omitted). If challenges to an
inmate's security classification and confinement must be
brought in the district of incarceration, this challenge must
be brought in the Southern District of Florida, which Court
has jurisdiction over Mr. Levy's custodian.
the 2255 motion were considered on its merits, it would be
denied. Counsel's representation did not fall below an
"objective standard of reasonableness."
Strickland v. Washington, 466 U.S. 668, 669 (1984).
There was not ineffective assistance of counsel related to
the supposedly erroneous security score. The score was based
on prior violent conduct (battery charge) and the issued
fugitive warrant, regardless of whether it was later
resolved. Further, counsel's failure to object to the
"Unknown" notation created no consequences in the
Guidelines calculations. Counsel reasonably objected to other
portions of the PSR, and any failure to object to the claimed
error in the PSR for potentially distant consequences does
not meet the highly deferential standard of