Opinion
02 Civ. 1472 (TPG), 99 Cr. 5(TPG)
October 3, 2003
OPINION
This is a motion under 28 U.S.C. § 2255. Under Rule 4(b) of the Rules Governing Section 2255 Proceedings, the court has examined the motion and the relevant court records and has determined that the motion should be summarily dismissed.
On November 17, 1999 Paulino pled guilty to entering the United States after having been deported following his conviction for an aggravated felony. On November 16, 2000 (following two unsuccessful motions to withdraw the guilty plea) Paulino was sentenced to 57 months in prison, and the court directed that this sentence was to run concurrently with a sentence which Paulino was serving in a state prison.
In his current § 2255 motion, Paulino makes the following claims.
(1) The indictment failed to allege an essential element, which Paulino describes as "the arrest element."
(2) The Government had agreed, prior to the guilty plea, to remain silent at the sentencing on the question of whether the federal prison term would run concurrently with the state term. The Government violated this agreement and opposed a concurrent sentence. On the same subject, Paulino complains that Sentencing Guidelines 5G 1.2 and 5G1.3(c), dealing with the subject of when to impose consecutive or concurrent sentences, were not properly applied by the court.
(3) Paulino was not accorded the rights granted by the Vienna Convention to communicate with the consulate of the Dominican Republic. If he had been able to do so he would have requested a lawyer obtained through the consulate rather than being represented by the CJA attorneys who were assigned to him.
(4) The state conviction was unlawful.
(5) The deportation was unlawful. (6) Both trial and appellate counsel furnished inadequate assistance because they failed to raise the aforesaid points.
None of these claims has any validity.
With regard to the "arrest element," a prior version of the relevant statute, 8 U.S.C. § 1326, in describing the crime, referred to an alien who "has been arrested and deported." Proof that the defendant was arrested was an element of the offense. United States v. Wong Kim Bo. 466 F.2d 1298 (5th Cir. 1972). However, the statute was amended in 1996 to remove the word "arrested." Thus arrest is no longer an element.
As to the second claim, it is true that the Government opposed a concurrent sentence. Whether this was or was not breach of an agreement by the Government is of no significance. The fact is that the court did not accept the Government's argument and imposed a sentence to run concurrently with the balance of the state sentence which Paulino was then serving. As far as the Sentencing Guidelines are concerned, the court applied them in a manner favorable to Paulino.
Regarding the Vienna Convention claim, the important point is that Paulino had thoroughly competent counsel; he pled guilty because he was in fact guilty; and he was given a lawful sentence. There is no basis for upsetting any of this because of the Vienna Convention.
The state conviction and the deportation are not subject to collateral attack in a prosecution under 8 U.S.C. § 1326.
Since the listed claims of violation of rights have no merit, it follows that Paulino's trial and appellate attorneys did not fail in their duty to Paulino to the extent that they did not raise these points.
Certain additional claims not specifically dealt with in this opinion were mentioned briefly in the § 2255 motion. They are without merit and require no discussion.
The motion is denied and dismissed.
The moving party has not made a substantial showing of the denial of a constitutional right. Therefore a certificate of appealability will not issue. 28 U.S.C. § 2253.
SO ORDERED.