Opinion
00 CR. 447 (DLC).
August 30, 2001
Jonathan Kolodner, Marc Weinstein, Office of the United States Attorney, New York, NY.
Jeremy F. Orden, New York, NY.
OPINION AND ORDER
This Opinion addresses whether a defendant may file a Section 2241 habeas petition prior to sentencing to challenge the legality of his conviction. Having decided for the following reasons that such a petition is premature, the matter has been set down for sentence.
On December 7, 2000, a jury returned a verdict finding defendant Esteban Gonzalez ("Gonzalez") guilty of assault with a dangerous weapon with intent to do bodily harm, among other things. Gonzalez was represented at trial by assigned counsel. The sentence was originally scheduled for March 23, but adjourned for a variety of reasons until June 28, at which time the Court granted Gonzalez's request and appointed new counsel. Incoming counsel for the defendant indicated a desire to preserve the right to file a Rule 33 motion. He was given until August 24, to become familiar with the case, to file any such motion, and to address whether such a motion is timely.
By letter dated August 3, 2001, Gonzalez advised the Court that he would not file a Rule 33 motion and requested until September 28, to file a motion pursuant to 28 U.S.C. § 2241. On August 6, the Court ordered counsel to advise the Court in writing why this case should not be promptly set down for sentencing.
Having received submissions from both the Government and defense counsel, and having concluded that a petition filed pursuant to 28 U.S.C. § 2241, raising a claim of ineffective assistance of trial counsel, may not be filed in the circumstances of this case prior to sentencing, the Court scheduled sentencing for September 27, and gave notice that an opinion would follow. This Opinion sets forth the reasons for denying any further adjournment of sentencing pending the filing and adjudication of a petition under 28 U.S.C. § 2241.
DISCUSSION
There are two traditional routes through which Gonzalez may raise his ineffective assistance of trial counsel claim. The first is on direct appeal. Following its decision in Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993), the Second Circuit expressed a "`baseline aversion to resolving ineffectiveness claims on direct appeal.'" United States v. Pena, 233 F.3d 170, 173 (2d Cir. 2000) (quoting United States v. Williams, 205 F.3d 23, 35 (2d Cir.), cert. denied, 121 S.Ct. 203 (2000)). The Court expected such claims to be brought following the conclusion of the direct appeal through a petition pursuant to Section 2255. 28 U.S.C. § 2255. With the passage of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), however, habeas corpus petitioners were presumptively limited to a single petition. Id. at 174. In response to this change in the law, the Second Circuit has more recently indicated a willingness to hear ineffective assistance of counsel claims, even those which require the development of facts beyond those appearing in the record, on direct appeal. It recently noted that "the Billy-Eko rule in no way limits our discretion to hear an ineffective assistance claim on direct appeal."Id. at 174. As the Second Circuit explained:
[W]hen hearing a direct appeal that presents a claim for ineffective assistance of trial counsel, we "may do one of three things: (1) decline to hear the claim, permitting the appellant to raise the issue as part of a subsequent § 2255 petition; (2) remand the claim to the district court for necessary fact-finding; or (3) decide the claim on the record before us."Id. (quoting United States v. Leone, 215 F.3d 253, 256 (2d Cir. 2000)). Consequently, if a claim that trial counsel was ineffective requires the development of facts not apparent on the face of the record, the Second Circuit may decide to retain jurisdiction over the appeal, but to remand the claim to the District Court for fact-finding.
Gonzalez may also raise an ineffective assistance of trial counsel claim in a petition pursuant to 28 U.S.C. § 2255, after sentencing. Section 2255, as amended by AEDPA, allows a motion only by a "prisoner in custody under sentence of a court." 28 U.S.C. § 2255. Thus, in a case such as this one, where a federal prisoner has not yet been sentenced, a district court lacks jurisdiction over a motion pursuant to Section 2255. Stantini v. United States, 140 F.3d 424, 426 (2d Cir. 1998).
In contrast, it is not customary to attack the legality of a conviction through a Section 2241 petition. The Second Circuit has explained that Sections 2255 and 2241 "offer relief for different claims." Chambers v. United States, 106 F.3d 472, 474 (2d Cir. 1997). "A petitioner seeking to challenge the legality of the imposition of a sentence by a court may . . . make a claim pursuant to Section 2255." Id. (emphasis in original). For example, Section 2255 provides relief "where the sentence was imposed in violation of the Constitution or laws of the United States." Id. In contrast, "a challenge to the execution of a sentence . . . is properly filed pursuant to Section 2241." Id. (emphasis in original). Petitions under Section 2241 typically challenge "such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions." Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001).
Section 2255 provides, in relevant part:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appear that the remedy by motion is inadequate or ineffective to test the legality of his detention.28 U.S.C. § 2255.
While, as Gonzalez points out, "Section 2241(c)(3) allows federal courts to entertain habeas corpus petitions from federal prisoners `in custody in violation of the Constitution or laws or treaties of the United States,'" Jiminian, 245 F.3d at 147 (quoting 28 U.S.C. § 2241 (c)(3)), a petition under Section 2241(c) ordinarily may be filed only where a remedy under Section 2255 would be "inadequate or ineffective."Id. Section 2255 "may be inadequate or ineffective in circumstances in which `the petitioner cannot, for whatever reason, utilize § 2255, and in which the failure to allow for collateral review would raise serious constitutional questions.'" Id. (quoting Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997)).
Here, Gonzalez has not shown that relief under Section 2255 is "inadequate or ineffective," or that he falls within the set of cases in which he cannot "utilize § 2255." Id. Rather, in seeking to file a Section 2241 petition to challenge his detention before sentencing, Gonzalez raises arguments of judicial efficiency and defense strategy. Gonzalez argues that the filing of a Section 2241 petition before sentencing: (1) would permit the development of a full and complete record on the ineffectiveness issue; (2) would permit, if Gonzalez's habeas petition pending before another judge in this district is granted, the Government to offer a "package deal" with respect to both that case and this one, which could not happen if Gonzalez had already been sentenced here; (3) would avoid potential prejudice from witnesses' memories fading or witnesses becoming unavailable; and (4) would avoid the necessity for his seeking to adjourn his appeal to permit him to file a habeas petition before this Court. Despite these arguments, however, Gonzalez has not shown that he is entitled as a matter of law to bring a claim of ineffective assistance of trial counsel prior to sentencing.
For the same reasons discussed in United States v. Pirro, 104 F.3d 297 (9th Cir. 1997), the filing of a pre-sentence petition pursuant to Section 2241 to challenge the effectiveness of trial counsel is not appropriate. The Ninth Circuit affirmed the dismissal of a Section 2241 petition filed prior to sentence, and concluded that permitting defendants to raise claims that were otherwise available in a Section 2255 motion "would allow all incarcerated defendants simultaneously to pursue both section 2241 petitions challenging the validity of their convictions and sentences and direct appeals challenging the same." Id. at 299. The Ninth Circuit further found that delay in considering a Section 2255 petition until direct appeals are resolved does not make the Section 2255 motion "inadequate or ineffective and therefore does not entitle the defendant prematurely to pursue a section 2241 habeas petition." Id.
The analysis in Pirro is not undercut by the Second Circuit's decision in Stantini, supra. In Stantini, the defendant filed a motion styled as both a Rule 33 motion and a Section 2255 petition prior to sentence. After hearing argument on the claims, the district judge ruled that the Rule 33 motion was untimely and that the Section 2255 petition was not factually supported. Stantini, 140 F.3d at 425. The conviction was affirmed on appeal, and the defendant thereafter filed a Section 2255 petition. In Stantini, the Second Circuit held that the motion filed before sentence was not properly characterized as a Section 2255 petition because a Section 2255 petition can only be filed after sentence, and therefore, the pending Section 2255 petition was not a "second or successive" petition under AEDPA requiring certification by a Court of Appeals. Id. at 427. Although in conducting this analysis the Second Circuit characterized the pre-sentence motion as a Section 2241(c) motion, in doing so it did not approve the use of a habeas petition prior to sentence to challenge the legality of a conviction, and indeed noted that "collateral attack is not a substitute for direct appeal." Id. at 426 (citation omitted) But see United States v. Mocombe, No. 98 Cr. 770 (BIB), 2000 WL 488464, at *1 (S.D.N.Y. Apr. 24, 2000) (allowing challenge to conviction through Section 2241(c) motion prior to sentence), appeal dismissed in part, aff'd in part, 2001 WL 138242 (2d Cir. 2001).
Here, the appropriate course is for Gonzalez first to be sentenced. After sentencing, Gonzalez can file a direct appeal of his conviction and challenge the effectiveness of his trial counsel's representation. Once his appeal has been decided, if necessary, Gonzalez may collaterally attack his conviction by motion pursuant to Section 2255.
In the event the Court declines to accept a petition filed pursuant to Section 2241 before sentencing, Gonzalez alternatively requests an extension to file a Rule 33 motion. Rule 33 states, in relevant part: "[a] motion for a new trial . . . may be made only within 7 days after the verdict or finding of guilty, or within such further time as the court may fix during the 7-day period." Fed.R.Crim.P. 33. On December 7, 2000, immediately following the return of the verdict, defense counsel requested additional time in which to file post-trial motions. The Court declined to grant this extension and defense counsel represented that any such motion would be filed within seven days. No motion was ever filed.
The Court explained that "there are scheduling reasons on my own part that make me reluctant to grant that extension, even if I have the authority to do so . . . . I don't want to . . . create a hardship in your life, but if I do grant an extension, it is going to create a hardship in my life." Counsel responded by saying: "I understand, Judge. If we are going to file any motions, we will do it within seven days."
Defendant argues that he was caught in a "Catch-22 where his right to a Rule 33 motion was never actually presented," but he has not presented any legal support either for the proposition that the time period for filing a Rule 33 motion must always be extended when there is a request for an extension, or for his entitlement to file such a motion now. Further, while Gonzalez argues that it would have been a conflict of interest for his trial counsel to raise an ineffective assistance of counsel claim, he does not suggest any reason why he cannot raise that issue on direct appeal or in a petition for collateral review.
Defendant's reliance on United States v. Castillo, 14 F.3d 802 (2d Cir. 1994), is misplaced. In Castillo, the defendant argued on direct appeal that the seven day time limit on Rule 33 motions did not apply to his claim that his trial counsel had been ineffective, including for counsel's failure to make a motion for a new trial under Rule 33 within the seven day period. The Second Circuit reviewed the merits of the defendant's arguments before deciding that "it can hardly constitute ineffective assistance to fail to present a claim via a Rule 33 motion that, as we have just held, is without merit." Id. at 805.
CONCLUSION
For the reasons stated, defendant's request to bring a petition pursuant to 28 U.S.C. § 2241 prior to sentencing is denied.SO ORDERED.