Opinion
Civil Action No. 99-40002-NMG
July 12, 2000.
MEMORANDUM ORDER
On April 17, 1996, Roderick L. Senior ("Senior") was indicted for unlawful re-entry following deportation in violation of 8 U.S.C. § 1326. On July 29, 1996, a jury trial commenced in this Court but the case was continued after Senior requested substitute counsel. On August 2, 1996, with new counsel, Senior pled guilty to the indictment. He was later sentenced by this Court to 51 months of imprisonment and 36 months of supervised release. The First Circuit Court of Appeals affirmed Senior's sentence in an unpublished opinion on December 30, 1997.
Pending before this Court is Senior's motion filed pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence (Docket No. 1). Senior makes the following four claims in his § 2255 motion:
(1) that he was denied his Sixth Amendment right to counsel of his choice at the beginning of his trial;
(2) that Fed.R.Crim.P. 43 was violated by his removal from the courtroom during jury impanelment;
(3) that this Court erred in removing him from the courtroom due to his disruptive conduct; and
(4) that his counsel was ineffective at sentencing because he failed to request a downward departure on the basis of U.S.S.G. § 4A1.3 (overstated criminal history).
A petitioner may not raise issues in a post-conviction proceeding which were available, but not raised, on direct appeal unless he can show either cause and actual prejudice or that a fundamental miscarriage of justice would occur. Stone v. Powell, 428 U.S. 465, 477 n. 10 (1976); Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994). Senior does not allege that there have been any new factual or legal developments which explain his failure to appeal on the grounds set forth in his petition. All four of Senior' s challenges were available to be raised on direct appeal and yet were not.
Senior shows neither cause and actual prejudice nor a miscarriage of justice. Three of his challenges relate to matters that occurred before Senior changed his plea and it is clear that a counseled and voluntary plea of guilty may not be collaterally attacked. See United States v. Broce, 488 U.S. 563, 569 (1989). A defendant who pleads guilty admits both that he committed the acts set forth in the indictment and that he is guilty of the substantive crime. Id. at 570. Inquiry on appeal is typically restricted to whether the plea was knowing and voluntary and Senior makes no showing to the contrary. Id.
Senior's fourth contention, that his counsel was ineffective because he failed to raise a departure issue at sentencing, does not constitute cause and prejudice or miscarriage of justice. Even assuming that Senior could show that his counsel's failure to request a departure constituted cause, he is unable to show prejudice or a miscarriage of justice. Senior had originally received a state sentence of five to seven years for a drug distribution offense and was still on parole when he unlawfully returned to this country after he had been deported. Criminal history category III, into which he was placed at sentencing, fairly represents his criminal background.
ORDER
For the foregoing reasons, Petitioner's § 2255 motion to vacate, set aside or correct his sentence (Docket No. 1) is hereby DENIED.
So ordered.
Dated: July 12, 2000