Opinion
00 CR 47 (MBM), 01 Civ. 8975 (MBM)
May 20, 2002
NEEMA SHERPA, Lompoc, CA, (Petitioner pro se)
JAMES B. COMEY, ESQ., United States Attorney for the Southern District of New York, MIRIAM H. BAER, ESQ., (Assistant U.S. Attorney), New York, NY.
OPINION AND ORDER
Neema Sherpa was convicted on his own plea of guilty to importing over 700 grams of heroin into the United States. That guilty plea was the subject of an appeal to the Court of Appeals, and was affirmed in an opinion reported at 265 F.3d 144 (2d Cir. 2001), familiarity with which is assumed for current purposes. Sherpa now petitions pursuant to 28 U.S.C. § 2255 to vacate the sentence imposed on him, on the ground that his lawyer failed to provide effective representation in that he failed to advise Sherpa that if a California conviction that prevented imposition of a lower sentence here than Sherpa received were set aside under California Penal Code section 1203.4, he would qualify for the lower sentence that had eluded him. For the reasons set forth below, the requested relief is denied and the petition is dismissed.
There are two reasons why the requested relief must be denied. First, under Sherpa's plea agreement, he was barred from pursuing an appeal or any collateral attack on his conviction if his sentence was within the range 78-97 months. That point was specifically covered at a proceeding on July 19, 2000. (See 7/19/00 Tr. at 3) Although the government waived that provision at my urging to permit Sherpa to appeal his 70-month sentence to argue that I had discretion to sentence him below Criminal History Category I, that was the limit of the governments s waiver. (See 12/4/00 Tr. at 5)
Second, the relief Sherpa apparently has obtained under California law does not expunge his conviction, in the sense of making it as if that conviction had never occurred, within the meaning of the Sentencing Guidelines. Section 4A1.2 (j) of the Sentencing Guidelines provides that "[s]entences for expunged convictions are not counted" when computing a defendant's criminal history. However, Application Note 10 to that section states in relevant part as follows:
A number of jurisdictions have various procedures pursuant to which previous convictions may be set aside or the defendant may be pardoned for reasons unrelated to innocence or errors of law. . . . Sentences resulting from such convictions are not to be counted. However, expunged convictions are not counted.
According to Sherpa, his conviction was set aside pursuant to California State Penal Code section 1203.4. However, the Ninth Circuit has held explicitly that "[a] conviction set aside pursuant to California Penal Code section 1203.4 is not `expunged' under Sentencing Guideline § 4A1.2 (j)," United States v. Hayden, 255 F.3d 768, 774 (9th Cir. 2001), citing numerous state cases that reflect the limited nature of the relief granted under that section of the California Penal Code, and the continued availability of the conviction for evidentiary, civil, and even criminal contexts in the event of a later offense. See id. at 771-73.
For the above reasons, Sherpa's application to vacate his sentence is denied, and the petition is dismissed.
Because Sherpa has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see United States v. Perez, 129 F.2d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997).