US v. Schifano, 89 Civ. 3309 (JES)

• Decision Date: 09 October 1990
• Docket Number: S 84 Cr. 1034 (JES).,No. 89 Civ. 3309 (JES),89 Civ. 3309 (JES)
• Parties: UNITED STATES of America v. Saverio G. SCHIFANO, a/k/a "Sammy," Petitioner.
• Court: U.S. District Court — Southern District of New York

748 F. Supp. 172

UNITED STATES of America v. Saverio G. SCHIFANO, a/k/a "Sammy," Petitioner.

Nos. 89 Civ. 3309 (JES), S 84 Cr. 1034 (JES).

United States District Court, S.D. New York.

October 9, 1990.

Otto G. Obermaier, U.S. Atty., S.D.N.Y., New York City, for the U.S. (John M. McEnaney, Asst. U.S. Atty., of counsel).

Saverio G. Schifano, pro se.

MEMORANDUM OPINION AND ORDER

SPRIZZO, District Judge:

Petitioner Saverio G. Schifano, brings this petition pro se under the All Writs Act, 28 U.S.C. § 1651 "to vacate, set aside or correct his sentence." Petitioner makes the following claims: 1) that he has been denied his Fifth Amendment right to due process of law and his Eighth Amendment right to be free of cruel and inhumane punishment because the United States Parole Commission ordered that he not receive parole as early as the Court estimated; 2) that the Government and the Court failed to advise him of the contingencies inherent in a request for parole thereby invalidating his guilty plea; 3) that the Sentencing Reform Act, which abolishes parole after March 1, 1992, constitutes an unconstitutional ex post facto increase of his sentence; 4) that his counsel's failure to file a motion under Fed.R.Cr.P. 35 constituted ineffective assistance of counsel; and 5) that the Court's failure to address him personally at sentencing to inquire whether he had read the presentence report violated Fed.R.Cr.P. 32 and entitles him to be resentenced. For the reasons that follow, the petition is dismissed.

BACKGROUND

On March 10, 1986, this Court, following petitioner's plea of guilty to narcotics conspiracy and weapons charges, sentenced petitioner to 15 years imprisonment, to be followed by an additional five years of special parole. See Transcript of Sentencing ("Sent. Tr.") at 10-11 (March 10, 1986).

On June 6, 1988, petitioner appeared before the United States Parole Commission for his initial hearing. Upon reviewing petitioner's case, the parole examiners recommended that petitioner be continued to a mandatory release date of January 14, 1995. Petitioner appealed the Parole Commission action, on the grounds that the Parole Commission, by ignoring the sentencing court's estimation that he would receive parole after approximately 64 to 78 months, usurped the sentencing court's discretion. The Parole Commission denied that appeal.

Petitioner appeared before the Parole Board in June of 1990. At that time the Board again ordered that he serve until the expiration of his sentence. However, the Board set his release date for May 11, 1994, which is eight months earlier than the prior date. See Letter of AUSA John M. McEnaney to Hon. John E. Sprizzo (Sept. 6, 1990). He is scheduled to appear before the Parole Board again in June of 1992.

DISCUSSION

Jurisdiction

At the outset, the Court notes that 28 U.S.C. § 1651 is not an appropriate basis for this petition. Coram nobis relief under the All Writs Act, 28 U.S.C. § 1651, should be granted only "to correct errors of the most fundamental character where the circumstances are compelling to achieve justice." United States v. Mandel, 862 F.2d 1067, 1076 (4th Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 3190, 105 L.Ed.2d 699 (1989) (quoting Correa-Negron v. United States, 473 F.2d 684, 685 (5th Cir.), cert. denied, 414 U.S. 870, 94 S.Ct. 89, 38 L.Ed.2d 88 (1973)). Coram nobis therefore is not available where an incarcerated defendant can file a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. See United States v. Russell, 776 F.2d 955, 957 n. 1 (11th Cir.1985); United States v. Little, 608 F.2d 296, 299 (8th Cir.1979), cert. denied, 444 U.S. 1089, 100 S.Ct. 1053, 62 L.Ed.2d 777 (1980); United States v. Keogh, 391 F.2d 138, 149 (2d Cir.1968) (§ 1651 relief available where petitioner does not have a remedy under § 2255); see also Wright, Federal Practice and Procedure, Criminal, § 592 at 433 n. 18 (1982 & Supp. III 1990). However, because petitioner is in custody and is proceeding pro se, the Court will construe the petition liberally and treat it as a motion pursuant to § 2255 rather than a petition brought under 28 U.S.C. § 1651. Cf. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972).

Unconstitutional Application of Parole Guidelines Claim

Petitioner's first claim is that his constitutional rights were violated because the Parole Commission did not grant him parole within the time period contemplated by the Court at sentencing. At the time of sentencing, the Court stated that in its view of the parole guidelines, he would probably be released after serving between 64 to 78 months in prison. See Sent. Tr. at 9-10. However, when petitioner appeared before the Parole Commission, it ordered that he be continued to his maximum release date which, in petitioner's case, will require him to serve approximately 100 months in prison.

The Government correctly argues that this claim is governed by United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), and must be rejected. In Addonizio, the Supreme Court held that because subsequent actions by Parole Commission do not affect the validity of the petitioner's sentence collateral review is not available where a petitioner alleges that the Parole Commission has prolonged his sentence beyond the period intended by the sentencing judge. See id. at 186-87, 190, 99 S.Ct. at 2241, 2243. Moreover, the Court noted that the statutory scheme vests the Parole Commission, not the Court, with the responsibility for determining when a defendant will be released on parole, see id. at 189, 99 S.Ct. at 2242, and therefore "the judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term."¹ Id. at 190, 99 S.Ct. at 2243.

Petitioner also contends that because the Court's sentence was based upon an erroneous prediction about his future parole, the sentence was based upon misinformation of constitutional magnitude and must be vacated. While it is true that this circuit has held that a sentence based upon an incorrect application of state parole laws violates a defendant's due process rights, see King v. Hoke, 825 F.2d 720, 724 (2d Cir.1987), the Court in King expressly stated that Addonizio foreclosed any such due process claim where, as here, the alleged misinformation consisted of an incorrect prediction as to how the Parole Commission would exercise its discretion. See id. at 725.

Invalid Guilty Plea Claim

Petitioner argues that his plea of guilty is invalid and must be withdrawn because he was not advised that the Parole Commission could deny him parole and require him to serve until his maximum release date. However, there is no constitutional or statutory requirement that a defendant be supplied with information about his eligibility for parole at the time he pleads guilty. See Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985); Hunter v. Fogg, 616 F.2d 55, 61 (2d Cir.1980); Fed.R.Cr.P. 11(c)(1). Fed.R. Cr.P. 11 requires only that a defendant be advised of the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term. See Fed.R.Cr.P. 11(c)(1). This Rule conforms to the requirements of the Constitution. See Hill, supra, 474 U.S. at 56, 106 S.Ct. at 369. Petitioner has not asserted that he was deprived of this information when he pleaded guilty and therefore there is no basis to find that his plea was invalid.² Accordingly, the claim that he should be allowed to withdraw his guilty plea on this ground must also be rejected.

Ex post facto Claim

Petitioner also claims that application of the Sentencing Reform Act to his sentence violates the prohibition against ex post facto laws found in the United States Constitution.³

Petitioner is currently incarcerated and is scheduled to serve until his mandatory release date: May 11, 1994. He argues that because parole and the Parole Commission will be abolished on November 1, 1992, see Comprehensive Crime Control Act of 1984, Pub.L. 98-473, tit. II, § 212, 218(a)(5), 98 Stat. 1837 (Oct. 12, 1984), he will be deprived of the right to be considered for parole during the period from the Parole Commission's abolition until the time of his release. Petitioner contends that this circumstance enhances the penalties for his misdeeds so that they are now more severe than they were at the time he committed the crimes and thus violates the ex post facto clause of the Constitution. Petitioner therefore requests that the Court order that he be released on parole after he serves 64-78 months or one-third of his sentence, whichever is earlier.

Since petitioner's ex post facto claim is based upon facts occurring after his sentence, i.e., the future abolition of the Parole Board, the Court's subject matter jurisdiction to entertain this claim under section 2255 is dubious at best. See United States v. Hutchings, 835 F.2d 185, 186 (8th Cir.1987); Hajduk v. United States, 764 F.2d 795, 796 (11th Cir.1985); see generally United States v. Huss, 520 F.2d 598, 604 (2d Cir.1975). However, even assuming arguendo that the Court could properly hear this claim under section 2255, it is not clear that petitioner has standing to raise that claim at this time under Article III of the Constitution.⁴ In order "to establish an Art. III case or controversy, a litigant must first establish that he has suffered an `injury in fact,'" which "must be concrete in both a qualitative and temporal sense." Whitmore v. Arkansas, ___ U.S. ___, 110 S.Ct. 1717, 1723, 109 L.Ed.2d 135 (1990) (quotations omitted). Moreover, the injury alleged must be "`distinct and palpable' as opposed to merely `abstract,' and the alleged harm must be actual or imminent, not `conjectural' or `hypothetical.'" Id. (quotations omitted); accord Los Angeles v. Lyons, 461 U.S. 95,...