Opinion
01 Civ. 9204 (SAS)
March 12, 2002
Howard B. Sterinbach, Esq., New York, New York, for Petitioner.
Andrew S. Dember, Assistant United States Attorney, New York, New York, for Respondent.
OPINION AND ORDER
Petitioner moves, pursuant to Title 28, United States Code, section 2255 ("section 2255"), to set aside his sentence and have a lower sentence imposed. Petitioner was convicted of depriving a citizen of his constitutional rights, under color of law, in violation of Title 18, United States Code, section 242. See United States v. Livoti, 22 F. Supp.2d 235 (S.D.N.Y. 1998). Petitioner was sentenced to ninety months in prison, to be followed by three years of supervised release. The Second Circuit affirmed both the conviction and the sentence. See United States v. Livoti, 196 F.3d 322 (2d Cir. 1999), cert. denied, 529 U.S. 1108 (2000). For the reasons set forth below, petitioner's motion is denied.
I. LEGAL STANDARD
Section 2255 permits a convicted person in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A section 2255 motion must allege one of the following: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence exceeded the maximum term authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255. With respect to alleged errors of law, a collateral attack will only be sustained if the error constituted "`a fundamental defect which inherently results in a complete miscarriage of justice.'"United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)); United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (same). As to alleged errors of fact, a collateral attack will only be sustained if the error was "`of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid.'" Addonizio, 442 U.S. at 186 (quoting United States v. Mayer, 235 U.S. 55, 69 (1914)); Bokun, 73 F.3d at 12.
II. BACKGROUND
On January 12, 1998, petitioner was indicted on the charge of willfully assaulting Anthony Baez while acting under color of law as an officer of the New York City police department. Petitioner was convicted on June 26, 1998 and sentenced on October 8, 2002. Petitioner now moves to set aside and reduce his sentence. Petitioner does not assert that this Court lacked jurisdiction to impose the sentence or that the sentence imposed exceeded the maximum authorized by law. Thus, petitioner asserts only two grounds for relief: (1) that his sentence violated the Constitution or laws of the United States; and (2) that the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255.
III. DISCUSSION
1. "Assurances" By the Government
A. Petitioner's Sentence Did Not Violate the Constitution or Laws of the United States
Petitioner claims that this Court's refusal to downwardly depart was based on erroneous assurances made by the Government at sentencing that the Bureau of Prisons would properly house him within the prison system without violating his constitutional rights. Petitioner's Affirmation ("Pet. Aff.") ¶ 3. Petitioner argues that this Court relied on the Government's allegedly erroneous assurances and that the Government has been unable to incarcerate petitioner "in a way that does not constitute cruel and unusual punishment." Id.
Contrary to petitioner's claim, the Government made no assurances regarding conditions of incarceration. Petitioner repeatedly directs the Court's attention to portions of the sentencing hearing, and to portions of the Government's Sentencing Memorandum. In the sentencing hearing, the Government argued that: (1) "there are many facilities throughout the country to which [petitioner] can be assigned"; (2) if petitioner was incarcerated in a facility where another inmate posed a threat to his safety, "either that person or [petitioner] would be removed"; (3) petitioner's claim "that the prison system cannot protect" him was unfounded; and (4) "the Bureau of Prisons can protect safely police officers who have been convicted of crimes and who have served sentences." Tr. at 32-33. In its Sentencing Memorandum, the Government further argued that "[i]n order to qualify for departure on [the grounds of susceptibility to abuse in prison], a defendant's vulnerability must be so extreme as to substantially affect the severity of confinement, such as where only solitary confinement can protect a defendant from abuse." Ex. B to Pet. Aff. at 21. None of these statements qualifies as an assurance; the statements simply supported the Government's argument that prisoner vulnerability did not justify a downward departure from the Sentencing Guidelines.
"Tr." refers to the transcript of the sentencing hearing held on October 8, 1998.
Even if the Government's statements could be construed as assurances and even if this Court relied on them, the assertions at issue have proven accurate. There are many facilities throughout the country where petitioner can be (and indeed has been) safely housed; in listing the facilities in which he has been incarcerated, petitioner nowhere claims that the prison system has failed to protect him. See Pet. Aff. ¶¶ 17-37. There is nothing in the record to suggest that the Bureau of Prisons cannot safely imprison police officers in general; nor is there any evidence that the prison system has been unable to protect petitioner in particular. See id. Nowhere does petitioner claim that he has been physically harmed while in the custody of the Bureau of Prisons. Further, on every occasion that there has been a threat to petitioner's safety, he has been transferred from the prison where the threat was made. See id. ¶¶ 29, 30, 33. Indeed, petitioner himself concedes the veracity of the Government's statements, asserting in his Reply Memorandum that the representations made during the sentencing hearing were "technically true . . . ." Petitioner's Reply ("Reply Mem.") at 4. Most importantly, however, petitioner has failed to identify any federal law, constitutional mandate or constitutional prohibition that this Court violated in imposing sentence.
Assuming, arguendo, that the Government's assertions were untrue, they certainly did not rise to the level of "misinformation of a constitutional magnitude." United States v. Tucker, 404 U.S. 443 (1972);see also, Hill, 368 U.S. at 427-28 (discussing errors of fact reaching constitutional magnitude) Thus, Tucker, on which petitioner relies, is distinguishable. The "misinformation," if there was any, was different both in nature and in magnitude.
2. Cruel and Unusual Punishment
In further support of his claim that his sentence violates the Constitution, petitioner asserts that he has been subjected to cruel and unusual punishment by virtue of the prison conditions he has been forced to endure. Pet. Aff. ¶ 3. Specifically, petitioner complains of: (1) the frequent transfers between federal prisons; and (2) the intermittent need to house him in administrative detention, sometimes for extended periods of time. Pet. Aff. ¶¶ 17-37.
Somewhat confusingly, petitioner appears to rescind his complaint about the conditions of his imprisonment when, in his Reply Memorandum, he states that "[t]his is not a case where petitioner is arguing [that anyone] has illegally imposed unconstitutional prison conditions." Reply Mem. at 11.
This claim is not properly before this Court. As the Second Circuit recently held, "[a] motion under § 2255 must be `directed to the sentence as it was imposed, not to 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)).See also Jiminian v. Nash, 245 F.3d 144, 147 (2d Cir. 2001); United States v. Huss, 520 F.2d 598, 603-04 (2d Cir. 1975); Ruiz v. United States, No. 97 Civ. 1884, 2000 WL 1029186, at *1 (S.D.N.Y. July 24, 2000) A section 2255 claim must challenge the imposition of sentence, rather than the conditions of confinement.
Title 28, United States Code, section 2241 is the proper vehicle for claims by federal prisoners challenging "the execution of a . . . sentence, including such matters as . . . prison transfers, type of detention and prison conditions." Jiminian, 245 F.3d at 146 (emphasis in original). A section 2241 petition, however, must be brought in the jurisdiction where the petitioner is incarcerated. See Billiteri v. United States Bd. of Parole, 541 F.2d 938, 948 (2d Cir. 1976) ("In order for a court to entertain a habeas corpus action, it must have jurisdiction over the petitioner's custodian."). Petitioner is currently imprisoned at the Butner Federal Correctional Institute in North Carolina ("FCI Butner"). Accordingly, to the extent that petitioner's motion challenges the conditions of his confinement, it is beyond this Court's jurisdiction.
It is noteworthy that petitioner has not complained about FCI Butner where, since March, 2001, he has been housed in general population apparently without incident. Prior to his designation to FCI Butner, petitioner has not been held exclusively in administrative detention. In fact, he spent at least one ten-month period in the general population of another federal penitentiary — the Coleman Penitentiary in Florida. Pet. Aff. ¶¶ 28-29.
Finally, if petitioner has a valid section 2241 claim, it is not ripe for judicial review. Title 42, United States Code, section 1997(e) requires that a prisoner exhaust all administrative remedies before bringing an action challenging prison conditions. See 42 U.S.C. § 1997(e); Gibson v. Goord, 280 F.3d 221 (2d Cir. 2002). Petitioner has not alleged that he pursued administrative remedies before filing suit. See Declaration of Lynnell Cox, Legal Instruments Examiner at the Federal Correctional Complex in Butner, North Carolina, November 19, 2001, attached as Exhibit B to Respondent's Opposition to Petitioner's Section 2255 Petition.
B. Petitioner's Sentence Is Not Otherwise Subject to Collateral Attack
Petitioner also claims that his sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255. Petitioner challenges the sentence as having been based on an error of fact — the Government's alleged misinformation as to prison conditions. Essentially, petitioner claims that, had this Court known the conditions under which petitioner would be detained, it would have imposed a different sentence. Petitioner is mistaken.
The claimed error does not meet any of the established standards of collateral attack set out in Addonizio that is, the alleged error was not "`of the most fundamental character'" and did not render "`the proceeding itself irregular and invalid.'" Addonizio, 442 U.S. at 186 (quotingMayer, 235 U.S. at 69). As a threshold matter, it is important to reiterate that none of the Government's assertions at sentencing or in its Sentencing Memorandum have proven false. Moreover, even if the erroneous assurances alleged by petitioner did in fact exist, they would not amount to fundamental errors rendering the sentencing proceeding irregular and invalid. See id. In imposing sentence, this Court was manifestly aware of the likely conditions of petitioner's incarceration. During the sentencing hearing, the Court explicitly acknowledged petitioner's susceptibility to abuse in prison as a mitigating factor in deciding not to upwardly depart more than four levels. See Tr. at 47-48.
In short, petitioner's section 2255 petition is not based on any legal or jurisdictional infirmity; nor is there any evidence of fundamental error sufficient to render the sentencing proceeding so irregular and invalid as to justify re-sentencing.
IV. CONCLUSION
For the foregoing reasons, the petition is dismissed. The Clerk of the Court is directed to close this case.