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Ismael Lugo v. Donna Zickefoose

December 10, 2010

ISMAEL LUGO, PETITIONER,
v.
DONNA ZICKEFOOSE, WARDEN,
F.C.I. FORT DIX, RESPONDENT.



The opinion of the court was delivered by: Simandle, District Judge

NOT FOR PUBLICATION

OPINION

APPEARANCES:

Plaintiff, Ismael Lugo ("Lugo"), a federal prisoner confined at the Federal Correctional Institution in Fairton, New Jersey ("FCI Fairton"), brings this application challenging his federal court conviction on the ground that he is actually innocent of money laundering, based upon an intervening change of law by the Supreme Court of the United States in United States v. Santos, 553 U.S. 507 (2008). Lugo names Warden Donna Zickefoose as the respondent in this action.

This Court has reviewed the petition and traverse filed by Lugo, as well as the answer and relevant record submitted by respondent, and for the reasons set forth below, will dismiss the petition for lack of jurisdiction, as it is a prohibited second or successive motion under 28 U.S.C. § 2255.

I. BACKGROUND

On September 26, 2005, Lugo pled guilty before the late Honorable Richard C. Casey, U.S.D.J., in the United States District Court for the Southern District of New York, to a superseding information*fn1 charging him with (1) conspiracy to distribute and possess with intent to distribute five kilograms and more of cocaine, in violation of 21 U.S.C. § 846; (2) conspiracy to import five kilograms and more of cocaine into the United States, in violation of 21 U.S.C. § 963; and (3) conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). See Transcript of Plea Allocution Hearing ("Plea Tr."), dated September 26, 2005, attached as Exhibit C to Petition. Lugo's plea of guilty was made pursuant to a September 12, 2005 plea agreement signed by petitioner, his counsel, and an Assistant United States Attorney for the Southern District of New York. See Exhibit B to Petition. The plea agreement provided for a stipulated guidelines range of 210 to 262 months imprisonment, but allowed the parties to seek a sentence based upon factors set forth in 18 U.S.C. § 3553(a). See Pet. Ex. B, Plea Agreement at p. 5. Petitioner also agreed that he would "not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 ... any sentence within or below the Stipulated Guidelines Range [of 210 to 262 months]." Id. at p. 6. non-guidelines sentence based upon factors set forth in 18 U.S.C. § 3553(a). See Pet. Ex. B, Plea Agreement at p. 5. Petitioner also agreed that he would "not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 ... any sentence within or below the Stipulated Guidelines Range [of 210 to 262 months]." Id. at p. 6.

On May 9, 2006, Lugo appeared before Judge Casey for sentencing. Judge Casey sentenced Lugo to 210 months in prison. See May 9, 2006 Sentencing Transcript at P9:L19-21, attached as Ex. D to Petition. Lugo is presently serving his prison sentence at Camp FCI Fairton.

On or about October 23, 2006, Lugo filed a motion to vacate his sentence and conviction, pursuant to 28 U.S.C. § 2255. The matter was assigned to the Honorable Colleen McMahon, U.S.D.J., because Judge Casey passed away in early 2007. Judge McMahon denied the § 2255 motion by Order entered on January 17, 2008, based on petitioner's express, knowing and voluntary waiver of his right to collaterally attack his sentence. See January 17, 2008 Order, attached as Ex. E to Petition.

Lugo then filed this habeas petition on or about February 23, 2010. The Government filed an answer to the petition on April 15, 2010. Lugo filed a reply to the Government's answer on May 3, 2010 and May 7, 2010.

II. CLAIMS PRESENTED

Lugo first claims that his sentence was imposed in an illegal manner because he was not present when the judge sentenced him to 210 months imprisonment and five years supervised release on Counts Two and Three. This claim will be dismissed because there is no question that Lugo was present at his plea allocution and at his sentencing hearing. In fact, Lugo attaches the transcripts from both hearings to his habeas petition. Therefore, this claim is denied for complete lack of merit.

Lugo also contends, in reliance on United States v. Santos, 553 U.S. 507 (2008), that he is actually innocent of the money laundering statute, 18 U.S.C. ยง 1956, because there was no admission by Lugo that he laundered the proceeds (profits) of his illegal drug trafficking activities. Lugo argues that the transactions that normally occur during the course of running an unlawful activity are not identifiable uses of profits, in his case, the purchase of ...


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