Opinion
06 cv 10219 (GBD).
December 27, 2006
ORDER
Pro se petitioner, Peter J. Corines, is moving, pursuant to 28 U.S.C. § 2255, to vacate his sentence. The motion is denied.
Since petitioner is proceeding pro se, his pleadings are to be liberally construed and interpreted to raise the strongest argument they suggest. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Despite affording the pleadings a liberal reading, the petition cannot survive preliminary review for facial validity, under Rule 4 of the Rules governing Section 2255 proceedings in the United States District Courts.
Rule 4(b) provides, in relevant part:
If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.
On December 2, 2003, the second day of a jury trial for eight counts of mail fraud, petitioner plead guilty to Counts One and Six of the superceding indictment pursuant to a written plea agreement with the government. On March 29, 2004, petitioner moved to withdraw his guilty plea. This Court denied that application. United States v. Corines, No. 02 Cr. 21 (GBD), 2004 WL 856315 (S.D.N.Y Apr. 20, 2004). On June 9, 2004, petitioner was sentenced by this Court to 18 months imprisonment and three years of supervised release. He was ordered to surrender for service of sentence at the institution designated by the Bureau of Prisons before 3:00pm on September 15, 2004. On June 14, 2004, petitioner filed notice of appeal of his conviction. The U.S. Court of Appeals for the Second Circuit dismissed his appeal on September 16, 2005, finding that the petitioner had "knowingly and voluntarily waived his right to appeal." His motion for rehearing en banc was denied on October 13, 2005. The U.S. Supreme Court denied his petition for a writ of certiorari on May 2, 2006.
In this motion, petitioner argues that the (1) "the trial court was without jurisdiction because indictment . . . did not state a cause of action;" (2) his guilty plea "was not made intelligently with understanding of the true nature of the charges;" (3) his "right to appeal his conviction was unconstitutionally dismissed;" (4) that this court "did not comprehend the definition of disability and could not therefore impartially judge petitioner's case;" and (5) "defense counsels' [sic] performance was ineffective."
Petitioner contends that only his claim for ineffective assistance of counsel was not raised on direct appeal of his conviction. Petitioner knowingly and voluntarily pled guilty pursuant to a written plea agreement with the government on the second day of his trial. As already noted by the Second Circuit Court of Appeals, petitioner, by the terms of his written plea agreement, waived his right to attack that conviction on direct appeal or collaterally.
Petitioner's new claim of ineffective assistance of counsel is clearly without substantive merit. Petitioner cannot demonstrate that (1) his "counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) that he was prejudiced by his attorney's errors, i.e. that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002) (following Strickland v. Washington, 466 U.S. 668 (1984)) (internal quotations omitted).
Accordingly, petitioner's motion is denied in its entirety and the petition is dismissed.
As the petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealabilty will not issue. 28 U.S.C. § 2253; Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). Additionally, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED: