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Diarrassouba v. United States

United States District Court, D. New Jersey

February 10, 2014



MARY L. COOPER, District Judge.

This matter comes before the Court on the pro se motion of Mory Diarrassouba ("Petitioner") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("Section 2255 Motion"). The underlying criminal case in this Court was United States v. Diarrassouba, Crim. No. 11-12 (MLC), in which Petitioner pleaded guilty to one count of conspiracy to falsely alter United States Postal Service money orders in violation of 18 U.S.C. § 371, a Class D Felony. Petitioner seeks to vacate his conviction, contending that he was not informed by his defense attorney that a guilty plea would likely result in his deportation. Upon careful review of the record, we conclude that the Court lacks subject matter jurisdiction under 28 U.S.C. § 2255, because Petitioner was not "in custody" on the underlying conviction at the time he filed the Motion. We will issue an order to show cause notifying Petitioner that he may request that the action be treated as a petition for a writ of coram nobis under 28 U.S.C. § 1651(a), upon the papers already submitted.


The records filed in this action[1] and in the underlying criminal action[2] provide the background and all pertinent facts.

Petitioner states that he is a citizen of Ivory Coast who was admitted to the United States on a visitor visa in 1990, and his status was adjusted to Legal Permanent Resident (CR6) on June 14, 1995. (Dkt. 1-1 at 2.) On January 7, 2011, he pleaded guilty to conspiracy to falsely and materially alter United States Postal Service money orders, contrary to 18 U.S.C. § 500, in violation of 18 U.S.C. § 371. (Crim. dkt. 26 and 35.) He was sentenced on June 23, 2011. (Crim. dkt. 36.)

Petitioner's defense counsel informed the Court during the sentencing hearing that she had been informed, that very day, that an Immigration and Customs Enforcement ("ICE") detainer had been placed on her client. (Id. at 12-13.) The prosecutor then explained that whenever Petitioner was released from custody in his criminal case, he would go into ICE custody on the immigration detainer. (Id. at 13.)

This Court conducted the sentencing hearing in three distinct steps, as required under post-Booker sentencing procedures. United States v. Booker , 543 U.S. 220 (2005). Consistent with the parties' stipulations in the plea agreement and the recommendations in the Presentence Report, we calculated Petitioner's advisory guidelines range for imprisonment to be 18 to 24 months, based on a total offense level of 15 and criminal history category I. (Crim. dkt. 36 at 5-6.)[3] Next, the government moved for downward departure based on substantial assistance pursuant to USSG § 5K1.1, and recommended a sentence of time served. At that point, Petitioner had been in custody on the criminal charge for about 14½ months. (Id. at 8-9.) We granted a downward departure to offense level 12, resulting in an advisory range for imprisonment of 10 to 16 months. (Id.) At the final step of the sentencing hearing, both counsel recommended a sentence of time served, with no term of supervised release, which the Court granted. (Id. at 9-14.) We also waived any fine, but did impose a stipulated restitution figure of $392, 646.05, payable in installments of $50.00 per month. (Id. at 7, 14-15; crim. dkt. 32 at 1-5.)

As the prosecutor explained at the sentencing hearing, once the time-served sentence was imposed in the criminal case, the custody of Petitioner would be transferred from the U.S. Marshals Service (which was holding him in the criminal case) to the ICE agency, which would hold him under the immigration detainer.[4] The Judgment of Conviction was signed and filed on the same day as the sentencing hearing itself, June 23, 2011. (Crim. dkt. 32.) Thus, as of June 24, 2011, Petitioner was no longer incarcerated in the criminal case and he had been taken into ICE custody as an immigration detainee.

The following year, on March 23, 2012, Petitioner signed and delivered to the ICE internal mailing system for delivery to this Court two filings, each of which was docketed upon receipt on April 16, 2012. The first was captioned and docketed as a Notice of Appeal in his criminal case. (Crim. dkt. 33.) The second was his Section 2255 Motion accompanied by a supporting brief, which commenced this action. (Dkt. 1 and 1-1.) Both were mailed from his location of ICE detention, the Essex County Correctional Facility ("ECCF") at 356 Doremus Avenue, Newark, New Jersey. (See crim. dkt. 33 at 1-2; dkt. 1 at 1.) The Notice of Appeal stated, "I am in ICE detention in Excess [sic] county jail." (Crim. dkt. 33 at 1.) The Section 2255 Motion stated that Petitioner was currently Prisoner No. 2011-12700 at "ECCF 356 Doremus Avenue." (Dkt. 1 at 1.)[5]

The Court of Appeals dismissed Petitioner's direct appeal as untimely, ruling as follows:

Appellant seeks review of the June 23, 2011 judgment. The government objects to the timeliness of the appeal from the judgment.... The notice of appeal from judgment was not filed until March 23, 2012, or 274 days after judgment was entered. This period of time far exceeds the 14 days provided by applicable Rules. See Fed.R.App.P. 4(b)(1). Accordingly, the government's motion is granted and the appeal is dismissed.

(Crim. dkt. 37.)[6]

This Court promptly reviewed the Section 2255 Motion, which was set forth on the standard form for federal inmates supplied by the Clerk (see L.Civ.R. 81.2(a)), and issued a Miller Notice and Order on April 25, 2012. (Dkt. 2.) However, we failed to discover the jurisdictional issue addressed below until we conducted our thorough review of the records once the briefing ...

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