Stier v. United States

871 F. Supp. 127, 1994 U.S. Dist. LEXIS 17681, 1994 WL 688305
CourtDistrict Court, N.D. New York
DecidedDecember 1, 1994
DocketNo. 93-CV-1172
StatusPublished

This text of 871 F. Supp. 127 (Stier v. United States) is published on Counsel Stack Legal Research, covering District Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stier v. United States, 871 F. Supp. 127, 1994 U.S. Dist. LEXIS 17681, 1994 WL 688305 (N.D.N.Y. 1994).

Opinion

MEMORANDUM, DECISION AND ORDER

McAVOY, Chief Judge.

I. BACKGROUND

On January 13, 1994 defendant Alex Stier (hereinafter “Stier”) in an appearance before this court pled guilty to a one count criminal information in which he was charged with conspiracy to commit bank fraud pursuant to 18 U.S.C. § 1344. On May 24, 1993, Stier was sentenced to 15 months incarceration, 24 months supervised release and restitution of $765,637.30 for which he is jointly and severally liable. To date, Stier has served the period of incarceration and is participating in a work release program.

On September 8, 1993, Stier initiated this action pursuant to 28 U.S.C. § 2255 contending inter alia that the amount of financial loss attributed to him was erroneous and failed to consider reparations already made. It is further argued that the Presentence Report (hereinafter “PSR”) was calculated incorrectly and deprived him of a credit for acceptance of responsibility, that the restitution ordered was unlawful because damages attributed to Stier were in excess of losses which could be reasonably expected in light of his participation, and that he was denied effective assistance of counsel since mental health issues were never raised as a defense or mitigating factor.

For the reasons stated below, this court finds that Stier is procedurally barred from raising issues in this motion which could have been brought in the initial proceedings. Furthermore, the court finds Stier’s allegation of ineffective representation to be incongruous with the record to date. As a result the this motion pursuant to § 2255 is denied.

II. DISCUSSION

A. Collateral Attack on the Imposed Sentence

A motion under 28 U.S.C. § 2255 offers relief in the form of collateral attack to prisoners under a sentence in excess of that which is authorized. Stier attacks his sentence alleging that errors occurred which have adversely effected the calculation of his sentence. However, none of these issues was raised during the initial proceedings, or on appeal (since no direct appeal of sentence was ever made).

It is well established law that failure to raise an issue during judicial proceedings bars a litigant from raising that same issue at a subsequent proceeding absent a showing of cause excusing the initial default and actual prejudice which results therefrom. See Fiumara v. United States, 727 F.2d 209 (2d Cir.), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984). In Fiumara it was held that a failure to move to suppress evidence in a criminal proceeding, prior to trial, operated as a procedural bar, preventing plaintiff from further attack without a demonstration of cause and prejudice. Thus evolved the cause and prejudice test.

In applying this test, the Second Circuit has held that “procedural default of even a constitutional issue will bar review under § 2255 unless the defendant can meet the cause and prejudice test.” Campino v. U.S., 968 F.2d 187, 190 (2d Cir.1992). This is also true for litigants who seek direct appeals since a “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. Furthermore, in subsequent proceedings if a litigant does not demonstrate sufficient cause for the default of said issue, the court need not determine whether the litigant was prejudiced. Billy-Eko v. U.S., 968 F.2d 281, 283 (2d Cir.1992).

Defendant Stier failed to raise any of the allegations now made at any prior proceedings and has failed to attack the sentence via direct appeal. No explanation has been offered in an attempt to demonstrate cause for this omission. His only attack comes via this action, which is inappropriate since § 2255 motions are not a vehicle for direct appeal.

[130]*130Regarding Stier’s alleged mental condition, the court finds no evidence in the record indicating that a diagnosis of mental disability has ever been made. Stier contends he has been diagnosed with a “dependent personality disorder”,1 however he offers nothing to support this naked assertion. As a result, the court treats this allegation as self serving and dubious at best.

This conclusion finds support in various statements made by Stier in which he indicates no history of mental illness. First in the Presentence Report, Stier indicates no mental disability. (PSR at 9). At Stier’s plea allocution when asked by this court if he was, or had recently been, under the care of a psychiatrist for a mental condition, Stier answered that he was not. (Tr.Pl.Alloc. 1/13/93 at 4). Finally, in his own papers Stier indicates that he suffers from no psychological problems. Upon being referred to the psychologist at the Federal Prison Camp in which Stier was incarcerated due to repeated medical complaints, Stier stated he “has a medical problem, not a psychological problem.” (Motion For Release on Bail Pending Consideration of 28 U.S.C. § 2255 Motion, Exhibit A-6).

A similar analysis is in order for the remaining allegations of erroneous calculation of restitution and improper calculation of sentence level. Stier was asked directly by this court if he had and factual disagreements with the sentencing report and after consultation with counsel, Stier replied “It’s fine sir.” (Tr.Pl.Alloc. 5/24/93 at 3). Since these issues were not raised during the initial proceedings, further consideration of under the guise of a § 2255 motion is not appropriate.

Based on the forgoing, the court concludes that Stier is barred from raising these claims now, since no direct appeal was made and no cause has been shown for that decision. Stier has failed to meet first prong of the Campino test, and as a result the court need not determine whether Stier was actually prejudice by the result of this determination.

B. Effective Counsel

Stier contends that he did not receive effective assistance of counsel, alleging that counsel failed to appreciate the extent to which he was suffering from diminished capacity due to mental illness. In support of this allegation Stier has provided an affidavit from Thomas Spargo (hereinafter “Spargo”) counsel of record, stating that he was unaware of Stier’s mental condition and failed to appreciate the relevancy of this condition as a defense or a mitigating factor which could be considered during sentencing. As noted above, aside from allegations made by Stier, the court finds no evidence contained within the record indicating that a disability exists. However, in analyzing the effectiveness of counsel, validity of the alleged illness need not be considered.

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Related

Affronti v. United States
350 U.S. 79 (Supreme Court, 1955)
Michel v. Louisiana
350 U.S. 91 (Supreme Court, 1956)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Hill v. Lockhart
474 U.S. 52 (Supreme Court, 1985)
Tino Fiumara v. United States
727 F.2d 209 (Second Circuit, 1984)
Jose Pagan Campino v. United States
968 F.2d 187 (Second Circuit, 1992)
John Billy-Eko v. United States
968 F.2d 281 (Second Circuit, 1992)
Cunningham v. United States
466 U.S. 951 (Supreme Court, 1984)

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Bluebook (online)
871 F. Supp. 127, 1994 U.S. Dist. LEXIS 17681, 1994 WL 688305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stier-v-united-states-nynd-1994.