Opinion
00 CV 1449 (ILG)
August 14, 2000
MEMORANDUM AND ORDER
The petitioner has moved pursuant to 28 U.S.C. § 2255 for an order vacating, setting aside, or correcting his sentence, claiming that this Court erred in imposing a three-year prison term for violation of a probationary sentence which was, according to petitioner, illegal. Because the motion is untimely, procedurally barred, and in any event, completely without merit, the motion is denied.
DISCUSSION
Petitioner was convicted following a jury trial of one count of conspiracy to steal goods from interstate and foreign commerce, one count of theft of goods from interstate and foreign commerce, and one count of possession of stolen goods. The offense conduct occurred on or about March 11, 1987. On March 16, 1988, petitioner was sentenced by this Court to five years imprisonment on the conspiracy count, nine years concurrent on the theft count, and five years probation on the possession count, to commence after the expiration of the prison terms. The probation sentence is challenged here.
Petitioner took a direct appeal, but raised no issue concerning the probation term. The Second Circuit affirmed. See United States v. Washington, 861 F.2d 350 (2d Cir. 1988).
After completing his term of imprisonment, petitioner began serving his probationary sentence. On May 28, 1996, this Court modified his conditions of probation and ordered him to participate in drug and alcohol treatment. The petitioner subsequently absconded from supervision, and in October, 1997, a warrant issued for his arrest. In December, 1998, petitioner pleaded guilty to violating probation, and the Court ordered him continued on probation on the condition that he cooperate with further efforts to treat his drug addiction.
Less than a year later, petitioner was before the Court again, having been arrested once more for violating the terms of his probation. On October 20, 1999, the Court revoked probation and sentenced him to 36 months imprisonment with a recommendation that he be designated to a facility that could provide him with a 500-hour drug treatment program.
At the outset, it is quite clear that the petitioner's challenge here is time-barred under the one-year limitation period governing motions for collateral relief under 28 U.S.C. § 2255. Where a conviction became final before April 24, 1996, the one-year period runs from that date.Mickens v. United States, 148 F.3d 145, 148 (2d Cir. 1998). Petitioner's conviction became final on November 1, 1988 when the Second Circuit affirmed. Obviously, a collateral challenge to his sentence under that conviction is time-barred.
The petitioner's challenge is also barred because he failed to raise it on direct appeal, and does not even attempt to show the cause and prejudice that might justify this Court in hearing his claim notwithstanding his failure to raise it earlier. See Douglas v. United States, 13 F.3d 43, 46-47 (2d Cir. 1993) (holding that a claim of constitutional violations due to improper application of sentencing enhancements was procedurally barred where legal basis for claim existed at the time of petitioner's appeal, but claim was not raised).
In any event, petitioner's claim that his probationary sentence was illegal is simply wrong. Petitioner argues that the Sentencing Reform Act of 1984, Pub.L. No. 98-473, 98 Stat. 1987 (1984) bars imposition of a probationary sentence against him, and he would be correct, had his offense conduct been completed after November 1, 1987. In fact, of course, petitioner's offense was complete in March, or at the latest, June, 1987 (when he was arrested), and so was covered by the predecessor section 3561, which provided, in pertinent part:
Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.18 U.S.C. § 3561 (repealed). The now-repealed statute clearly governs here. See United States v. Argitakos, 862 F.2d 423, 424 (2d Cir. 1988) (Sentencing Reform Act applies only to offenses committed after November 1, 1987). Thus, it is clear that the Court was well within its discretion in imposing the probationary sentence that it did.
Repealed § 3561 also provides that probation may be granted whether the offense was punishable by fine or imprisonment or both, that the term of probation shall not exceed five years, and that it may be limited to one or more counts of conviction, or cover the entire sentence and judgment. Id.
Petitioner's double jeopardy argument is meritless, and the cases cited in support of it are manifestly inapposite.
CONCLUSION
For the reasons set forth, the motion for relief pursuant to 28 U.S.C. § 2255 is denied.
SO ORDERED.