Mpounas v. U.S., 97 Civ. 6857 (DNE).
| Decision Date | 20 November 1998 |
| Docket Number | No. 97 Civ. 6857 (DNE).,97 Civ. 6857 (DNE). |
| Parties | Nicholas MPOUNAS, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Nicholas Mpounas, Fort Dix, NJ, pro se.
Petitioner Nicholas Mpounas ("Petitioner" or "Mpounas"), pro se, brought this present motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255 ("§ 2255" or "habeas petition") on July 24, 1997. Having reviewed Petitioner's claims and found them to be without merit, this Court denies Petitioner's habeas petition. This Court further declines to issue Petitioner a certificate of appealability.
In the instant habeas petition, Mpounas, once again, makes several allegations that this Court erroneously computed and improperly imposed his sentence. This Court has addressed similar sentencing issues that Petitioner has asserted in two prior opinions. See Gordils v. United States, 943 F.Supp. 346, 354-55 (S.D.N.Y.1996); Mpounas v. United States, No. 96 Civ. 1747 (S.D.N.Y. July, 16, 1996). On each occasion, this Court rejected Petitioner's claims for failing to have raised them on direct appeal. This Court also instructed that not only must issues regarding sentencing errors be asserted on direct appeal, they are not even proper for consideration on a habeas petition.
Despite the explicit reasoning that this Court employed in its prior opinions and the implicit, yet unmistakable, directive that issues regarding sentence should be raised only on direct appeal, Petitioner has asserted, via the present habeas petition, still another objection to the sentence that this Court has imposed. Again, this Court is constrained to repeat at nauseam both the facts and law that this Court has forcefully stated to address Petitioner's prior claims. This Court is not optimistic that Petitioner can be discouraged from further exhausting this Court's judicial resources. Although a brief opinion would suffice, this Court elects to issue a more extensive decision to alert Petitioner that his continued abuse of the judicial process will be dealt with appropriately and effectively.
The history of this case is found in United States v. Gordils, 982 F.2d 64, 66-69 (2d Cir.1992), cert. denied, 507 U.S. 1054, 113 S.Ct. 1953, 123 L.Ed.2d 657 (1993), and thus familiarity will be assumed. Only those facts needed to resolve the present motion are set forth.
Petitioner was tried before this court in 1989 on a superseding indictment that charged (1) conspiracy to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. § 846; (2) possessing with intent to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. § 841(b)(1)(B) and 18 U.S.C. § 2; (3) possessing with intent to distribute approximately 78 grams of heroin, in violation of 841(b)(1)(B) and 18 U.S.C. § 2; (4) possessing with intent to distribute over 123 grams of heroin, in violation of 21 U.S.C. § 841(b)(1)(B) and 18 U.S.C. § 2; and (5) using and carrying firearms during and in relation to drug-trafficking crimes, in violation of 18 U.S.C. §§ 924(c) and 2.
On December 8, 1989, a jury convicted Petitioner on all counts. On April 24, 1990, this Court sentenced Petitioner to four concurrent 188-month terms on counts one to four. On count five, this court imposed on Petitioner a mandatory consecutive sentence of five years to be served after each of his concurrent terms expires. This Court also ordered that a five year period of supervised release follow each of Petitioner's terms of incarceration. Additionally, this Court fined Petitioner $17,500 to be paid over the period of his supervised release. Finally, this Court required Petitioner to pay a mandatory special assessment of $250.
On January 30, 1991, this Court denied Mpounas' motion for retrial based on newly discovered evidence pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Petitioner, thereafter, appealed his conviction and this Court's denial of his motion for a new trial. On December 22, 1992, the Second Circuit affirmed this Court's rulings in all respects in Gordils, 982 F.2d 64.
On March 11, 1996, Mpounas filed his first habeas petition to vacate, set aside, or correct his sentence. Inter alia, Mpounas alleged that this court erroneously computed his sentence and that this Court should have vacated his conviction for using a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) pursuant to the Supreme Court's Decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).
In an opinion dated July 16, 1996, this Court addressed Mpounas' habeas petition. See Mpounas v. United States, No. 96 Civ. 1747 (S.D.N.Y. July, 16 1996). Applying the precedent the Supreme Court established in Bailey, this Court vacated Mpounas' sentence under § 924(c) because he did not actively use a firearm in furtherance of his drug trafficking crime. See id. This Court then ordered Mpounas to appear for resentencing. See id. This Court, however, denied Mpounas' sentencing objection. See id.
In deciding to reject Mpounas' sentencing claim this Court stated that "it is well settled that `[a] § 2255 may not be used as a substitute for a direct appeal.'" Id. (quoting Marone v. United States, 10 F.3d 65, 67 (2d Cir.1993)). This Court also relied on the Second Circuit's determination that "failure to raise a claim on direct appeal is itself a default of normal appellate procedure, which a defendant can overcome only by showing cause and prejudice." Id. (quoting Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992)). Emphasizing that Mpounas did not raise his sentencing claim on direct appeal, this Court concluded that Mpounas furnished no explanation whatsoever to justify his nonfeasance. See id. Thus, this Court ruled that his sentencing claim was procedurally barred. See id.
Moreover, this Court determined that regardless that Mpounas' claim was precluded on procedural grounds, it was also improperly raised. See id. In support of this conclusion, this Court stated that "it is well settled that 28 U.S.C. § 2255 is not a vehicle for review of every aspect of a criminal case, but instead provides a remedy only for defects that are constitutional, jurisdictional, or in some other respect fundamental." Id. citing United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) and Reilly v. Warden FCI Petersburg, 947 F.2d 43, 44 (2d Cir.1991), cert. denied, 502 U.S. 1115, 112 S.Ct. 1227, 117 L.Ed.2d 462 (1992)). This Court, further, reasoned that "non-constitutional errors of law, including sentencing errors, `do [] not provide a basis for collateral attack unless the claimed error constitute[s] a fundamental miscarriage of justice.'" Id. (quoting Addonizio, 442 U.S. at 185, 99 S.Ct. 2235 (quotation omitted)). Finally, this Court pointed out that, applying "this stringent standard, the Second Circuit has ruled that sentencing errors generally are not cognizable under § 2255." Id. (). Therefore, this Court held that Mpounas' claim was untenable under a habeas petition.
In an opinion dated October 23, 1996, memorializing this Court's ruling during a hearing of October 21, 1996, this Court resentenced Mpounas on his remaining four narcotics convictions to concurrent prison terms of 235 months less time served. See Gordils, 943 F.Supp. at 356. This Court also reduced the mandatory fine that this Court initially assessed against Mpounas from $250 to $200 to reflect this Court's decision to vacate his § 924(c) conviction. See id. at 357. On October 31, 1996, Petitioner appealed his resentence, and on July 8, 1997, the Second Circuit affirmed. See United States v. Gordils, 117 F.3d 99 (2d Cir.1997).
Of course in this Court's October 23, 1996 decision, this Court also had to address another of Petitioner's sentencing claims, challenging the calculation of his criminal history. Carefully explaining its reasoning and virtually repeating what it had stated in its July 16, 1996 opinion, this Court held that Mpounas' claim was procedurally and substantively barred. This Court stated:
[T]his Court finds that Mpounas' challenge to the calculation of his criminal history is procedurally barred by his failure to raise this claim on direct appeal.
It is well settled that habeas corpus is not a substitute for direct appeal. Moreover, a "failure to raise a claim on direct appeal is itself a default of normal appellate procedure, which a defendant can overcome only by showing cause and prejudice." "Cause" under this standard, has been construed by the United States Supreme Court to mean "something external to the petitioner [which] cannot be fairly attributed to him." ....
Mpounas has failed to meet this standard in the instant case. He did not raise his criminal history category calculation claim on direct appeal, and he offers this Court no explanation for his failure previously to do so. Accordingly this Court finds that this claim is procedurally barred....
Furthermore, the substance of this claim is improper for a habeas corpus petition. The Supreme Court has made clear that a habeas corpus petition is not a vehicle to review every aspect of a criminal case, but instead, provides a remedy only for defects that are constitutional, jurisdictional, or in some other respect fundamental. Non-constitutional errors of law, including sentencing errors, "do [] not provide a basis for collateral attack unless the claimed error constitute[s] a fundamental miscarriage of justice." Under this stringent standard, the Second Circuit has ruled that sentencing errors generally are not cognizable on habeas corpus. Accordingly, this Court finds that Mpounas' claim that his criminal history was...
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