Fireman v. U.S.

Decision Date15 September 1998
Docket NumberCivil Action No. 97-12305-WGY.
Citation20 F.Supp.2d 229
PartiesSimon C. FIREMAN, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of Massachusetts

Morris M. Goldings, MA, Richard S. Jacobs, Mahoney, Hawkes & Goldings, Boston, MA, for plaintiff.


YOUNG, District Judge.

Pursuant to 28 U.S.C. § 2255, Simon C. Fireman ("Fireman") seeks to have his sentence vacated, set aside, or corrected on the grounds that the sections of the Federal Election Campaign Act ("FECA") under which he was prosecuted violate his First Amendment rights of freedom of expression and association under the United States Constitution both on their face and as applied.1 Fireman also argues that the Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) ought today be disregarded by this Court because that decision, upholding as constitutional the $1,000 limitation on direct or indirect contributions by individuals and groups to any single candidate or the candidate's authorized committee, with respect to any election for federal office, "severely undermine[s] to a material degree the potential for robust and effective discussions of candidates and campaign issues by individual citizens, associations, the press, candidates, and political parties." Plt.'s Brief at 7.


Petitioner Fireman filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 regarding a sentence entered by this Court on October 23, 1996, following a guilty plea. Fireman pled guilty to:

1. Conspiracy to interfere with the lawful functions of the Federal Election Commission and to knowingly and willfully make contributions in the name of third persons in violation of 18 U.S.C. § 371 (Count 1);

2. Making contributions in the name of an individual other than the true donor in violation of 2 U.S.C. §§ 441a(f) and 437g(d) (Counts 2-8);

3. Making contributions in excess of the $1,000 statutory limit on campaign contributions to any candidate in violation of 2 U.S.C. §§ 441a(a)(1) and 437g(d) (Counts 71-72)

4. Making contributions in excess of the $25,000 statutory limit on aggregate campaign contributions in violation of 2 U.S.C. §§ 441a(a)(3) and 437g(d) (Count 73).

He was then sentenced to probation for a term of one year, the first six months to be served in home confinement with specific restrictions, and to pay a fine of one million dollars ($1,000,000) along with a special assessment of $300.

On May 27, 1997, Fireman filed a Complaint for Declaratory Relief seeking a declaration that the filing of his proposed section 2255 motion would not breach his plea agreement and an injunction against the U.S. Attorney's office prohibiting it from bringing dismissed or further criminal charges against Fireman if he files the motion. The United States moved to dismiss the Complaint. On October 14, 1997, this Court denied as moot the motion to dismiss and instructed Fireman that he could file a section 2255 motion without consequence. Thereafter, on October 15, 1997, Fireman filed this section 2255 motion.

A. Standing

In its response to Fireman's motion, the United States argues that Fireman lacks standing to challenge the constitutionality of his conviction under section 315 of the Federal Election Campaign Act, the part of the Act that imposes contribution limits. That part of his conviction relates to counts 71-73 for which, the United States claims, Fireman only received a fine and has never been "in custody." See Smullen v. United States, 94 F.3d 20, 25-26 (1st Cir.1996) (holding that a petitioner who is rightfully imprisoned cannot challenge the imposition of a fine or restitution under section 2255). The United States' interpretation of the sentence imposed on Fireman following his plea of guilty is incorrect. A review of the judgment of conviction and the criminal docket sheet shows that this Court imposed the same penalty for each count to which Fireman pled guilty, the sentence on each count to run concurrently, one with the others. See Petr's Reply to Government's Further Mem., Attach. 1 & 2. Fireman's section 2255 motion challenges not only the fine but the entire sentence and the jurisdiction of this Court to impose the sentence based on the unconstitutionality of FECA. Fireman thus has standing to challenge his conviction and sentence pursuant to 28 U.S.C. § 2255.

B. Procedural Default

In its response to Fireman's motion, the United States argues that Fireman's failure to raise his constitutional issue prior to the entry of his plea constitutes procedural default barring collateral attack. The Court disagrees. A valid guilty plea does not waive jurisdictional defects. See, e.g., United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); Valencia v. United States, 923 F.2d 917, 921 (1st Cir. 1991). "[A] plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the state may not constitutionally prosecute." Menna v. New York, 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam). Fireman's claim that the statute under which he was charged is unconstitutional raises a jurisdictional question. If the statute is unconstitutional, then the information on its face failed to state a federal offense and this Court had no original subject matter jurisdiction. See Ex Parte Siebold, 100 U.S. 371, 376-77, 25 L.Ed. 717 (1880); O'Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988). Fireman may raise this jurisdictional defect in a section 2255 motion, even when this claim was not raised on direct appeal. See United States v. Harper, 901 F.2d 471, 472 (5th Cir.1990); United States v. Prince, 868 F.2d 1379, 1383 (5th Cir.1989); Robinson-Munoz v. United States, 819 F.Supp. 1136, 1144 (D.P.R.1993). A guilty plea does not preclude raising a constitutional claim on collateral review challenging "the very power of the State to bring the defendant into court to answer the charge brought against him." Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), rev'd on other grounds, Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (petitioner challenged his indictment after the entry of a guilty plea and without a direct appeal on the grounds that the indictment violated his due process rights).

The United States argues that even if Fireman can file a section 2255 motion, his ability to obtain relief under this motion is barred by his procedural default, pursuant to United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (Frady teaches that to obtain collateral relief based on trial errors to which no contemporaneous objection was made as required by Fed. R.Crim.P. 30, a convicted defendant must show cause and actual prejudice). See also Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973) (petitioner's failure to object to the composition of the grand jury prior to trial, as required by Fed. R.Crim.P. 12[b][2], constituted waiver from which relief could be granted only upon a showing of cause and actual prejudice). The Government's reliance on Frady is misplaced. "In each of these cases, the Supreme Court found a procedural default and applied the cause and prejudice standard only after the defendant had violated a specific procedural rule by failing to raise his claim." English v. United States, 42 F.3d 473, 477 (9th Cir.1994). Here, there is no procedural rule that required Fireman to raise his jurisdictional claim prior to the plea under penalty of default. Federal Rule of Criminal Procedure 12(b)(2) does not apply to Fireman.2 This rule "applies to both procedural and constitutional defects in the institution of prosecutions which do not affect the jurisdiction of the trial court." Davis, 411 U.S. at 236-37, 93 S.Ct. 1577, 36 L.Ed.2d 216 (emphasis added). Prosecuting an information under an unconstitutional statute is a constitutional defect affecting the jurisdiction of the trial court.

In this case, Fireman is not challenging the sentence imposed or the authority of the district court to impose an enhanced sentence. Instead, he is challenging the constitutional validity of his conviction on the grounds that "the judgment of conviction is void for want of jurisdiction of the trial court to render it." Waley v. Johnston, 316 U.S. 101, 104-05, 62 S.Ct. 964, 86 L.Ed. 1302 (1942). "[The legislative] history makes clear that § 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus." Davis v. United States, 417 U.S. 333, 343-44, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); accord United States v. Hayman, 342 U.S. 205, 219, 72 S.Ct. 263, 96 L.Ed. 232 (1952) ("[T]he sole purpose [of section 2255] was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.") (emphasis added). This is the traditional purpose of the writ of habeas corpus. See Ex Parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1880). Thus, the United States' reliance on Knight v. United States, 37 F.3d 769 (1st Cir.1994) and Suveges v. United States, 7 F.3d 6 (1st Cir.1993) is also misplaced.3

The United States is correct that procedural errors and, generally, constitutional claims must be objected to and raised on direct appeal. Knight establishes that "[n]ormally, failure to raise a constitutional issue on direct appeal will bar raising the issue on collateral attack unless the defendant can show cause for the failure and actual prejudice." Knight, 37 F.3d at 774 (citing Coleman v. Thompson, 501 U.S. 722, 750 [111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991)]). There are, however, several exceptions to the general principle that "the writ of habeas corpus will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). These...

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