Opinion
06 CV 14206 (GBD).
December 20, 2006
MEMORANDUM DECISION AND ORDER
Pro se petitioner, Juan Macias, is moving, pursuant to 28 U.S.C. § 2255, to vacate and/or correct his sentence. Petitioner, who is an illegal alien, also moves, in the interest of justice, for an order directing his immediate deportation prior to the completion of his sentence of imprisonment. The applications are denied.
After commencing this action, petitioner filed a separate § 2255 petition. This latter petition asserts the same constitutional challenges set forth in the initial petition. Since the first petition is still pending, the subsequent petition must be construed as a motion to amend, as oppose to being characterized as a second or successive habeas petition.See, Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002). Even though the second petition is deemed to be an amended petition, the Court's review will encompass both petitions and the accompanying exhibits and supporting legal papers.
Since petitioner is proceeding pro se, his pleadings are to be liberally construed and interpreted to raise the strongest argument they suggest. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Despite affording the pleadings a liberal reading, the petition cannot survive preliminary review for facial validity, under Rule 4 of the Rules governing Section 2255 proceedings in the United States District Courts.
Rule 4(b) provides, in relevant part:
If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.
On March 21, 2003, petitioner pled guilty to conspiracy to distribute narcotics before Judge Robert P. Patterson. While imprisoned awaiting sentencing, petitioner filed liens against personal property belong to Judge Patterson and the Assistant United States Attorney. As a result of petitioner's actions, Judge Patterson recused himself and the matter was reassigned to this Court for sentencing. On May 26, 2005, this Court sentenced petitioner to 108 months imprisonment. Petitioner appealed his conviction on the grounds that the "sentence was unreasonable . . . because the court failed to consider his health for the purposes of a departure under the United States Sentencing Guidelines or as a factor relevant to sentencing pursuant to 18 U.S.C. § 3553(a)(2)(D)." United States v. Macias, Nos. 05-3460, 05-3775, slip op. at 2 (2d Cir. June 6, 2006). In affirming the conviction, the Second Circuit Court of Appeals found that "the record shows that contrary to Macias's assertions, the district court did consider Macias's health problems, both in addressing his downward departure request and in weighing the section 3553(a) factors." Id. at 3.
In support of his § 2255 motion, petitioner now argues that the sentence imposed violates his constitutional rights, under the Eighth and Fourteenth Amendments, because of the continued deliberate indifference to his medical needs by prison officials, which allegedly began over two and a half years prior to sentencing. Petitioner also argues that the Court's denial of his application, at sentencing, for a downward departure on the grounds of extraordinary physical impairment, was the result of the Government falsely assuring the Court that the Bureau of Prisons could provide petitioner with the necessary medical care. Petitioner is now seeking "to vacate, set aside, correct or adjust Movant's sentence downwards or impose a sentence outside the guidelines[,]" and he believes that a sentence of time served would be appropriate. (Pet'r Mem. at 28). He notes that his release will be of little import to the need to protect the public because he is willing to pay the costs associated with his immediate deportation to Mexico.
Notwithstanding petitioner's contentions to the contrary, the Court did not rely on any material false information in determining that a downward departure was unwarranted. As recognized by the Second Circuit Court of Appeals, the Court denied petitioner's request only after being satisfied that his medical ailments were not of such an extraordinary nature that appropriate treatment could not be obtained in prison.
Petitioner's claims, regarding the quality of medical care he is receiving in prison, are not cognizable under § 2255. Section 2255 may only be used as a vehicle to challenge the sentence as it was imposed and not the manner in which it is being executed.Corrao v. United States, 152 F.3d 188, 191 (2d Cir. 1998) ( quoting Dioguardi v. United States, 587 F.2d 572, 573 (2d Cir. 1978)). "Section 2255 provides a remedy only for defects that are constitutional, jurisdictional or in some other respect fundamental[,]" and it is "not intended to allow litigation over the conditions of confinement." Ruiz v. United States, 2000 WL 1029186, at *1 (S.D.N.Y. July 24, 2000) (citations and internal quotation marks omitted).
Petitioner also argues that his drug conspiracy conviction is void because the criminal statutes he was convicted of violating are unconstitutional. He contends that Congress was not vested with the requisite authority, under the Commerce Clause, to enact statutes criminalizing the distribution of controlled substances because such conduct may be wholly effectuated intrastate and hence, does not affect interstate commerce. Thus, petitioner further claims that his constitutional rights were violated by: (1) the failure to advise the Grand Jury that petitioner's criminal conduct must affect interstate commerce; (2) the absence of any reference to interstate commerce in the indictment; and (3) the Government's failure to establish a nexus between petitioner's criminal acts and interstate commerce.
Even if these claims had been legitimate constitutional issues, it was incumbent upon petitioner to raise them on direct appeal.United States v. Frady, 456 U.S. 152, 165 (1982). His failure to do so precludes petitioner from asserting these claims in a § 2255 petition absent a showing of either (1) cause for the procedural default and prejudice resulting therefrom; or (2) actual innocence. Sapia v United States, 433 F.3d 212, 217 (2d Cir. 2005) ( quoting Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998)). Petitioner has failed to make the requisite showing in every respect.
Rather than claiming innocence of the crime to which he pled guilty, petitioner concedes his criminal conduct. Additionally, petitioner's general assertion that a disagreement he had with his appellate counsel was the reason such issues were not raised on appeal does not constitute sufficient cause. See, United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995). Petitioner is unable to demonstrate any prejudice because his claims are completely devoid of merit. "Because narcotics trafficking represents a type of activity that Congress reasonably found substantially affected interstate commerce, the actual effect that each drug conspiracy has on interstate commerce is constitutionally irrelevant." United States v. Genao, 79 F.3d 1333, 1336 (2d Cir. 1996). The Second Circuit Court of Appeals has "repeatedly held that the `Controlled Substances Act concerns an obviously economic activity' substantially affecting interstate commerce, namely, narcotics trafficking, and have sustained the Act against criminal defendants' [ ] challenges" that Congress exceeded its authority under the Commerce Clause. United States v. Goodwin, 141 F.3d 394, 399 (2d Cir. 1997) ( quoting Genao, 79 F.3d at 1337)). The Government was not required to charge and prove, as an element of the crime, the existence of a nexus between petitioner's criminal conduct and interstate commerce because Congress has already found that even local drug trafficking substantially affects interstate commerce.
Finally, petitioner's application for immediate deportation is denied. It within the sole discretion of the Attorney General to authorize the removal of an imprisoned alien prior to the completion of his sentence, and no private cause of action exists to compel the Attorney General to exercise such discretion. Thye v. United States, 109 F.3d 127 (2d Cir. 1997).
Accordingly, petitioner's motions are denied in their entirety and the petition is dismissed.
As the petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealabilty will not issue. 28 U.S.C. § 2253; Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). Additionally, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED: