Gordils v. United States

68 F. Supp. 2d 343, 1999 WL 782521
CourtDistrict Court, S.D. New York
DecidedSeptember 30, 1999
DocketNo. 97 CIV. 6855(DNE)
StatusPublished

This text of 68 F. Supp. 2d 343 (Gordils v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gordils v. United States, 68 F. Supp. 2d 343, 1999 WL 782521 (S.D.N.Y. 1999).

Opinion

OPINION & ORDER

EDELSTEIN, District Judge.

Petitioner Jose Gordils (“Petitioner” or “Gordils”), 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.

Background

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.

On December 8, 1989, a jury convicted Petitioner of (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)(C) and 18 U.S.C. § 2; and (4) using and carrying firearms during and in relation to drug-trafficking crimes, in violation of 18 U.S.C. §§ 924(c) and 2.

On April 24, 1990, this Court sentenced Petitioner to three concurrent 151-month terms for his narcotics crimes. With regard to his firearm conviction, this Court imposed on Petitioner a mandatory sentence of five years to be served consecutively with each of his concurrent terms. This Court also ordered that a five year period of supervised release follow each of Petitioner’s terms of incarceration. Additionally, this Court required Petitioner to pay a mandatory special assessment of $200.

On January 30, 1991, this Court denied Gordils’ 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 May 16, 1996, Gordils filed his first habeas petition to vacate, set aside, or correct his sentence. Inter alia, Gordils 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 order dated July 16, 1996, this Court addressed Gordils’ habeas petition. See Gordils v. United States, No. 96 Civ. 3664 (S.D.N.Y. July, 16 1996). This Court denied Gordils’ sentencing objections; however, applying the precedent the Supreme Court established in Bailey, this Court vacated Gordils’ sentence under § 924(c) because he did not actively use a firearm in furtherance of his drug trafficking crime. See id. at 6 This Court then ordered Gordils to appear for resentenc-ing. See id.

[345]*345In deciding to reject Gordils’ 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. at 4 (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. at 5 (quoting Campino v. United States, 968 F.2d 187, 190 (2d Cir.1992)). Emphasizing that Gordils did not raise his sentencing claim on direct appeal, this Court concluded that Gordils 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 Gordils’ claim was not only precluded on procedural grounds but 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); 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^] 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. (citing Femia v. United States, 47 F.3d 519, 525 (2d Cir.1995); Lucas v. United States, 963 F.2d 8, 12-13 (2d Cir.), cert. denied, 506 U.S. 895, 113 S.Ct. 270, 121 L.Ed.2d 199 (1992)). Therefore, this Court held that Gordils’ claim was untenable under a habeas petition.

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Related

Coppedge v. United States
369 U.S. 438 (Supreme Court, 1962)
United States v. Addonizio
442 U.S. 178 (Supreme Court, 1979)
United States v. Frady
456 U.S. 152 (Supreme Court, 1982)
Coleman v. Thompson
501 U.S. 722 (Supreme Court, 1991)
Bailey v. United States
516 U.S. 137 (Supreme Court, 1995)
Robert Reilly v. Warden, Fci Petersburg
947 F.2d 43 (Second Circuit, 1991)
Jose Pagan Campino v. United States
968 F.2d 187 (Second Circuit, 1992)
Donovan Douglas v. United States
13 F.3d 43 (Second Circuit, 1993)
Francesco Femia v. United States
47 F.3d 519 (Second Circuit, 1995)
Gennaro Galtieri v. United States
128 F.3d 33 (Second Circuit, 1997)
Gordils v. United States
943 F. Supp. 346 (S.D. New York, 1996)
Reilly v. Warden
502 U.S. 1115 (Supreme Court, 1992)
Doe v. Towson State University
525 U.S. 954 (Supreme Court, 1998)

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Bluebook (online)
68 F. Supp. 2d 343, 1999 WL 782521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordils-v-united-states-nysd-1999.