Opinion
01 Civ. 3435 (MBM).
September 6, 2001
ANTHONY FELIX, (Petitioner pro se), Fairton Fairton, NJ.
MARY JO WHITE, ESQ., BRET R. WILLIAMS, ESQ., New York.
OPINION AND ORDER
Petitioner Anthony Felix pleaded guilty in the United States District Court for the District of Columbia in 1990 to a narcotics charge. Post-confinement supervision of his four years of supervised release was transferred to this district following Felix's release and move to New York in 1998. In August 2000, he was arrested for violating New York law, and he pleaded guilty before me in October 2000 to the resulting supervised release violation. I sentenced Felix to time served and a new term of supervised release, but directed that six months of that term be served in a community drug treatment facility.
In November 2000, within days of his arrival at the facility, Felix absconded. When recaptured, he again pleaded guilty to a supervised release violation, and this time, on December 11, 2000, was sentenced to 11 months' imprisonment. The Sentencing Guidelines range for the violation in question was 5 to 11 months.
He petitions pursuant to 28 U.S.C. § 2255 (1994 and Supp. V 1999) to vacate that sentence, claiming that imposing a renewed term of supervised release after his first violation offended the ex post facto clause of the Fifth Amendment, and that I should have recused myself for unspecified bias against him. He challenges also the propriety of my consideration of this petition, because I am the judge whose conduct is the subject of review here.
For the reasons set forth below, the requested relief is denied and the petition is dismissed.
As one may deduce from the brief chronology of this case set forth above, Felix did not appeal. Because a § 2255 petition "may not do service for an appeal," United States v. Frady, 456 U.S. 152, 165 (1982), a defendant who raises an issue for the first time in a § 2255 petition "must show both (1) `cause' excusing his . . . procedural default [in having failed to raise the issue on direct appeal], and (2) `actual prejudice' resulting from the errors of which he complains." Id. at 167. Here, Felix, apparently familiar with this requirement, relies on a familiar argument to show cause — the alleged ineffectiveness of his attorney. See Petition at 6, 16-17 (discussing Frady).
A petitioner who presses an ineffective assistance of counsel claim must both show that his lawyer's performance fell below "an objective standard of reasonableness" under "prevailing professional norms,"Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and "affirmatively prove prejudice," id. at 693. In order to satisfy the second part of that test — prejudice — which is the same as the second part of the showing a petitioner must make under Frady's cause and prejudice standard, a petitioner must show that the alleged errors had "an adverse effect on the defense" — i.e., that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 693-94.
Here, Felix cannot make that showing because the sentence imposed was within the law, Felix's ex post facto claim conflicted with governing Supreme Court precedent, and there was no basis then, any more than there is now, for seeking recusal.
Felix does not dispute that if the law permitted imposition of a new term of supervised release, the sentence imposed was within the law. The nub of Felix's claim is that because his conviction became final before the 1994 amendments to the Sentencing Reform Act, the Court lacked the authority granted by those amendments, specifically in 18 U.S.C. § 3583(h) (1994), to impose a new term of supervised release following reimprisonment. He argues that to apply the section enacted after his conviction became final — § 3583(h) — would be to violate the ex post facto clause of the Fifth Amendment to the U.S. Constitution. However, Felix overlooks Johnson v. United States, 529 U.S. 694 (2000), where the Supreme Court held squarely that even absent the 1994 amendments, "district courts have the authority [pursuant to 18 U.S.C. § 3583(e)(3) (1994)] to order terms of supervised release following reimprisonment." Johnson, 529 U.S. at 713. That case was decided in May 2000, well before Felix's sentencing in December. To the extent that there is any suggestion to the contrary inUnited States v. Koehler, 973 F.2d 132, 135 (2d Cir. 1992) (holding that a district court has no authority to impose additional supervised release following revocation and imprisonment), it has been superseded by the Supreme Court holding in Johnson.
Because this court had the authority to sentence Felix as it did, his attorney cannot have been ineffective for failing to argue that such authority did not exist. Nor can there have been prejudice from the attorney's failure to raise an unavailing argument. Further, apart from the plain fact that Felix does not like the sentence he received, he offers no grounds for claiming that I acted out of bias against him and should have recused myself.
Insofar as Felix is arguing that there is some impropriety in my handling this petition, once again the law is against him. Rule 4(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts directs that "[t]he original motion [under that section] shall be presented promptly to the judge of the district court . . . who was in charge of that part of the proceedings being attacked by the movant." That procedure has been found repeatedly to be proper. See, e.g., Oen Yin-Chov v. Robinson, 858 F.2d 1400, 1408 (9th Cir. 1988) (citing cases)
For the reasons set forth above, Felix's petition is without merit and is dismissed. On the same basis, reasonable judges could not differ as to the propriety of the outcome. Accordingly, no certificate of appealability will issue.