Opinion
06 Civ. 6968 (DLC), 97 Cr. 950 (DLC).
April 4, 2007
OPINION ORDER
A. Michael Kagan ("Kagan") brings this petition for "writ of error coram nobis," principally to attack the order of restitution imposed on May 21, 1999, as a term of his sentence. For the following reasons, the petition is denied.
Background
Kagan was indicted in 1997 with co-defendants for conspiracy, mail fraud, and other crimes arising from fraud committed at UFG International ("UFG"), a commercial insurance brokerage firm. Kagan and three co-defendants were convicted on multiple counts following a jury trial held from January 4 to February 3, 1999. The evidence showed that Kagan used his position on the Board of CPF Premium Funding, Inc. ("CPF") to help UFG defraud CPF of over $9 million. Kagan was rewarded with $425,000 in kickbacks.
Kagan was sentenced on May 21, 1999, to 70 months' imprisonment, a supervised release term of three years with special conditions, a special assessment of $1,700, and restitution of $4,962,000 to CPF. Restitution was imposed jointly and severally on the co-defendants, with Kagan required to make certain payments while incarcerated and to pay a minimum of 10% of his gross monthly income following imprisonment until the restitution was paid in full. No fine was imposed.
Kagan appealed. The conviction was affirmed on July 18, 2000.United States v. Ferrarini, 219 F.3d 145 (2d Cir. 2000). On May 22, 2002, Kagan filed a pro se petition for a writ of habeas corpus, raising many challenges to his conviction and sentence, principally arguing that his retained attorneys at trial and at sentence provided ineffective assistance to him. The petition was denied on August 20, 2003. Kagan v. United States, 02 Civ. 3886 (DLC), 2003 WL 21991585 (S.D.N.Y. Aug. 20, 2003). Among other claims that were denied, Kagan challenged the calculation of the restitution order. Id. at *7. His motion for a certificate of appealability was denied by the Second Circuit Court of Appeals on August 17, 2004.
On August 17, 2006, the instant petition was received by this Court's Pro Se Office. It was filed on September 11, 2006. Kagan contends that restitution was imposed improperly since he lacked the financial resources to pay restitution, that the Court erred at sentence in determining the amount of restitution owed CPF, and that the Government cannot take any of his social security disability payments to satisfy his restitution obligation. The Government opposed the petition on December 14, 2006, and Kagan replied on January 5, 2007.
Kagan also petitioned for early release from his three-year term of supervised release, citing his poor health, his age, and "compassionate release," under 28 U.S.C. § 2241, which allows for challenges to "the execution of a sentence — in contrast to the imposition of a sentence." Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006). Kagan has not provided any support for this application, and at any rate, the application will soon be moot; Kagan's term of supervised release will end by July 2007.
Discussion
To the extent this petition contends that restitution was improperly imposed or calculated, that claim is dismissed for lack of jurisdiction. A second or successive petition for a writ of habeas corpus must be filed in the Court of Appeals. Where it is "plain from the petition that the prisoner cannot demonstrate that a remedy under § 2255 would be inadequate or ineffective, the district court may dismiss" the petition rather than transfer it to the Court of Appeals. Adams v. United States, 372 F.3d 132, 136 (2d Cir. 2004).
Kagan contends that he cannot be required to pay 10% of his social security disability payments in restitution. He relies on 42 U.S.C. § 407 ("Section 407"), which provides in subsection (a):
The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
(Emphasis supplied.)
Section 407 does not bar collection of restitution from disability payments. The Mandatory Victim Restitution Act ("MVRA") provides that orders of restitution may be enforced as provided in chapter 229 of Title 18. 18 U.S.C. § 3664(m)(1)(A)(i) ("Section 3664"). That chapter includes 18 U.S.C. § 3613 ("Section 3613"), which provides that "[n]otwithstanding any other Federal law (including section 207 of the Social Security Act [ 42 U.S.C. § 407]), a judgment imposing a fine may be enforced against all property or rights to property of the person fined." 18 U.S.C. § 3613(a); see also id. § 3613(f) ("In accordance with section 3664(m)(1)(A) of this title, all provisions of this section are available to the United States for the enforcement of an order of restitution.").
Section 3613 further provides that an order of restitution under Section 3664 is a lien in favor of the United States as if it were "a liability for a tax assessed under the Internal Revenue Code." Id. § 3613(c). The Internal Revenue Code similarly exempts property from Section 407. 26 U.S.C. § 6334(c). Thus, the MVRA specifically exempts restitution obligations from Section 407. See United States v. Greenberg, 06MC55, 2006 WL 3304180, at *2 (D. Vt. Oct. 20, 2006); cf. United States v. Irving, 452 F.3d 110, 126 (2d Cir. 2006).
Conclusion
The petition is denied. Those portions of the petition that seek to challenge findings and rulings entered at the time Kagan was sentenced are dismissed under 28 U.S.C. § 2255 ¶ 8, without prejudice to their renewal as a second petition for a writ of habeas corpus filed before the United States Court of Appeals for the Second Circuit. Kagan's requests for early termination of his supervised release and for exemption from the requirement that he pay a portion of his disability payments toward restitution are denied.
In addition, I decline to issue a certificate of appealability. Kagan has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Grotto v. Herbert, 316 F.3d 198, 209 (2d Cir. 2003). I also find, 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, 445 (1962). The Clerk of Court shall close the case.
SO ORDERED.