Opinion
No. 02-CV-2546 (ILG)
May 3, 2002
Julia Lystra Collis (pro se), Federal Medical Center Carswell, Fort Worth, TX, for petitioner.
MEMORANDUM AND ORDER
BACKGROUND
Petitioner Julia Lystra Collis ("Collis" or "petitioner"), proceeding pro se, has filed a motion pursuant to 28 U.S.C. § 2255 seeking to vacate her judgment of conviction and sentence. On November 16, 1998, Collis was convicted, after a jury trial, of offering a bribe to a government employee, in violation of 18 U.S.C. § 666(a)(2). On June 25, 1999, this Court sentenced Collis to 37 months' imprisonment, to be followed by three years of supervised release. Judgment was entered on June 29, 1999. Collis had filed a motion, prior to sentencing, to set aside the verdict based on ineffective assistance of counsel, which was denied after the entry of judgment on July 30, 1999.
On direct appeal, Collis again sought to challenge her conviction, based on ineffective assistance of counsel. She claimed, inter alia, that counsel was ineffective because he (1) was not adequately prepared for trial; (2) did not inform her of his health problems or of his numerous requests for adjournments; (3) did not adequately prepare her to testify; and (4) did not make her aware of the government's plea offer. On May 5, 2000, the Court of Appeals considered these claims under Billy-Eko v. United States, 8 F.3d 111, 114-15 (2d Cir. 1993), and dismissed them on the merits. United States v. Collis, 213 F.3d 627 (Table) (2d Cir. 2000).
On or about April 22, 2002, more than one year after Collis's judgment became final, Collis filed the instant Section 2255 motion. As previously raised on direct appeal, Collis again asserts that she received ineffective assistance of counsel at trial, because counsel was not prepared for trial, and counsel had requested an adjournment which was denied. For the reason that follows, Collis's motion must be dismissed.
DISCUSSION
A district court may dismiss a Section 2255 motion, sua sponte, "[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court. . . ." Rule 4(b), 28 U.S.C. § 2255; cf Acosta v. Artuz, 221 F.3d 117, 124 (2d Cir. 2000) (noting that 28 U.S.C. § 2254 Habeas Rule 4 provides for the sua sponte dismissal of a habeas petition on the merits, followed by notice). Notwithstanding the fact that Collis's Section 2255 motion is probably untimely, see 28 U.S.C. § 2255, the motion must be dismissed, in any event, because the claims are procedurally barred. Claims raised and rejected on direct appeal may not be relitigated in a Section 2255 motion. Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995) ("It is clear that section 2255 may not be employed to relitigate questions which were raised and considered on direct appeal.") (internal quotation marks and citations omitted); Abbamonte v. United States, 160 F.3d 922, 924 (2d Cir. 1998) (Section "2255 petitioners may not raise on collateral review a claim previously litigated on direct appeal."). Collis raised her ineffective assistance of trial counsel claims on direct appeal, which were dismissed as meritless. Accordingly, the motion is dismissed.
Mindful of the Second Circuit's Acosta decision, which requires district courts to provide habeas petitioners with notice and an opportunity to be heard before dismissing a habeas motion as untimely, this Court does not dismiss the motion on that ground. See Acosta, 221 F.3d at 124-26.
CONCLUSION
For the foregoing reasons, the motion is dismissed.