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Paulino v. United States

June 21, 2010

VICTOR PAULINO, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM OPINION AND ORDER

Petitioner, Victor Paulino, is a federal prisoner who is challenging his mandatory consecutive sentences he received for various firearms violations. For the reasons set forth below, this action will be dismissed in accordance with the directives of the federal habeas corpus statute, as amended.

A. Relevant Factual History

Victor Paulino was indicted in 1991 for his involvement in a racketeering enterprise operated in the Southern District of New York and elsewhere from 1989 to 1991. Paulino fled to the Dominican Republic but was extradited to this country in 1999. On October 6, 1999, in the United States District Court for the Southern District of New York, Paulino entered a guilty plea to a superseding criminal Information charging him with participation in a racketeering enterprise, in violation of 18 U.S.C. § 1961 and § 1962(c), and use of a firearm in connection with a crime of violence, in violation of 18 U.S.C. § 924(c). In the plea agreement, Paulino acknowledged his participation as a coconspirator in the plan to murder the Lugo brothers, as well as his supervisory role overseeing the packaging of cocaine for retail sale. The plea agreement contained a stipulated total sentence, pursuant to the Sentencing Guidelines, of twenty-five years imprisonment for both counts of the Information. Paulino further stipulated that he would neither "appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence at or below the Guidelines sentence" set forth in the agreement. On January 18, 2000, Petitioner was sentenced to a term of imprisonment of 20 years (240 months) for Participation in a Racketeering Enterprise, in violation of 18 U.S.C. §§ 1961 and 1962(c) and 5 years (60 months) for Use of a Firearm in Connection with a Crime of Violence, in violation of 18 U.S.C. § 924(c), to be served consecutively and followed by three years of supervised release on each count to be served concurrently.

On January 17, 2001, Petitioner filed a motion pursuant to 28 U.S.C. § 2255 in the United States District Court for the Southern District of New York claiming: 1) the criminal Information was defective because it failed to specify the quantity of cocaine and type of firearm(s) involved in the charged offenses; 2) he received an unlawful sentence because there was insufficient evidence of his involvement in the conspiracy to commit murder and of the quantity of cocaine involved in the RICO offense; and 3) he received ineffective assistance of counsel. On June 6, 2001, his motion was denied. See Paulino v. United States, Civ No. 01-1174, 2001 WL 630486 (S.D.N.Y. June 6, 2001).

On November 10, 2004, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Northen District of Ohio alleging ineffective assistance of counsel. On January 19, 2005, the District Court dismissed the Petition because Petitioner failed to show that he was entitled to bring the action pursuant to 28 U.S.C. § 2241. Petitioner appealed this determination and the Court of Appeals for the Sixth Circuit affirmed the district court's decision on October 31, 2005. On October 2, 2006, the United States Supreme Court denied Petitioner's writ of certiorari.

On October 17, 2006, Petitioner filed a second Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255 in the United States District Court for the Southern District of New York. That Court transferred the motion to the Court of Appeals for the Second Circuit as a second or successive § 2255 motion. On March 30, 2007, the Court of Appeals denied Petitioner permission to file a second 2255 motion.

On January 27, 2009, Petitioner filed in this Court a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. For the reasons that follow, this Court does not have subject matter jurisdiction to reach Petitioner's claims.

B. Applicable Legal Standards - § 2241 v. § 2255

Through the instant action, Petitioner is attempting to collaterally attack his federal sentence via a petition for a writ habeas corpus under 28 U.S.C. § 2241. However, a motion under 28 U.S.C. § 2255 is the proper procedure for a federal prisoner to raise a collateral attack on his or her federal sentence for any error that occurred at or prior to sentencing. See In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997); Cox v. Warden, Federal Detention Center, 911 F.2d 1111, 1113 (5th Cir. 1990).

28 U.S.C. § 2255, in relevant part, provides as follows. 2255. Federal custody; remedies on motion attacking sentence

A prisoner in custody under [a federal] sentence claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on ...


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