KUTSENKO v. UNITED STATES OF AMERICA

Filing 7

OPINION. Signed by Judge Noel L. Hillman on 7/28/2014. (drw)n.m.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ALEKSANDR KUTSENKO,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

:
:
:
:
:
:
:
:
:
:
:

Civil Action No. 13-2433(NLH)

OPINION

APPEARANCES:
Aleksandr Kutsenko
RCI
P.O. Box 630
Winton, NC 27986
Petitioner pro se
Andrew Sun Pak
Office of the U.S. Attorney
District of New Jersey
970 Broad Street
Suite 700
Newark, NJ 07102
Counsel for Respondent

HILLMAN, District Judge
Petitioner Aleksandr Kutsenko, a prisoner currently
confined at Rivers Correctional Institution in Winton, North
Carolina, has filed this Motion [1], pursuant to 28 U.S.C.
§ 2255, seeking a reduction in his sentence due to the alleged

severity of his conditions of confinement, especially those
stemming from his status as a removable alien.

For the reasons

stated herein, the Petition shall be dismissed.
I.

BACKGROUND

Pursuant to a plea agreement, Petitioner was convicted in
this Court of conspiracy to commit bank fraud, 18 U.S.C. § 1349
(Count One), and aggravated identity theft, 18 U.S.C.
§ 1028A(a)(1) (Count Eight); he was sentenced to a term of 21
months’ imprisonment on Count One and a consecutive term of 24
months’ imprisonment on Count Eight, to be followed by an
aggregate five-year term of supervised release.

See United

States v. Kutsenko, Crim. No. 11-0765, (D.N.J.) (Docs. Nos. 18
(Plea Agreement), 23 (Judgment), 24 (Amended Judgment)).
Petitioner asserts that he is a removable alien.

He

contends that this status renders him ineligible for certain
programs and will lead, at the completion of his criminal
sentence, to continued detention in connection with removal
proceedings.

Petitioner also alleges that Rivers Correctional

Institution, a private for-profit prison which houses many
removable aliens, lacks good diet, health care, and
rehabilitative programs, but that he pays for correspondence
programs in an effort at self-help.
For all of these reasons, Petitioner seeks a six-month
reduction of his sentence based upon aggravating and mitigating
2

circumstances not adequately reflected in the U.S. Sentencing
Guidelines.

See, e.g., United States v. Smith, 27 F.3d 649

(D.C. Cir. 1994) (cited by Petitioner).

Petitioner also argues

that his impending removal renders his sentence greater than
necessary to accomplish the purpose of sentencing.

See 18

U.S.C. § 3553(a) (specifying relevant sentencing factors).
II.

28 U.S.C. § 2255

Title 28 U.S.C. § 2255 provides, in pertinent part:
A prisoner in custody under sentence of a court
established by Act of Congress 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.
28 U.S.C. § 2255(a).

See generally U.S. v. Thomas, 713 F.3d 165

(3d Cir. 2013) (detailing the legislative history of § 2255).
A criminal defendant bears the burden of establishing his
entitlement to § 2255 relief.

See United States v. Davies, 394

F.3d 182, 189 (3d Cir. 2005).

Moreover, as a § 2255 motion to

vacate is a collateral attack on a sentence, a criminal
defendant “must clear a significantly higher hurdle than would
exist on direct appeal.”

United States v. Frady, 456 U.S. 152,

166 (1982), cited in U.S. v. Travillion, No. 12-4184, 2014 WL
3029837, *2 (3d Cir. July 7, 2014).

3

Finally, this Court notes its duty to construe pro se
pleadings liberally.

See United States v. Otero, 502 F.3d 331,

334 (3d Cir. 2007) (citing Haines v. Kerner, 404 U.S. 519, 520
(1972)).
III.
A.

ANALYSIS

No Evidentiary Hearing is Necessary
Section 2255 gives a district court some discretion whether

to hold an evidentiary hearing on a § 2255 motion.

See Virgin

Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989), cited in U.S.
v. Carter, 477 F.App’x 875, 876 (3d Cir. 2012).

In exercising

that discretion, a district court must first determine whether
the facts asserted, viewed in the light most favorable to the
prisoner, if proven, would entitle the prisoner to relief; if
so, the district court then must consider whether an evidentiary
hearing is needed to determine the truth of the allegations.
See Gov’t of the Virgin Islands v. Weatherwax, 20 F.3d 572, 574
(3d Cir. 1994), cited in Nickens v. U.S., Civil No. 09-4278,
2011 WL 4056287, *5 (D.N.J. Sept. 12, 2011).

Thus, a district

court may summarily deny a § 2255 motion, without a hearing,
only where the “the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.”
28 U.S.C. § 2255(b).

See generally U.S. v. McCoy, 410 F.3d 124,

134 (3d Cir. 2005); United States v. Nahodil, 36 F.3d 323, 326
(3d Cir. 1994).
4

Here, as explained more fully below, because the record of
this case conclusively establishes that Petitioner waived his
right to collaterally challenge his sentence, there is no need
for an evidentiary hearing.
B.

Waiver
Respondent contends that this Court should dismiss the

Petition because Petitioner has waived his right to bring a
collateral attack on his sentence.
“Criminal defendants may waive both constitutional and
statutory rights, provided they do so voluntarily and with
knowledge of the nature and consequences of the waiver.”

U.S.

v. Mabry, 536 F.3d 231, 236 (3d Cir. 2008) (citations omitted),
cert. denied, 557 U.S. 903 (2009).

Thus, in criminal

proceedings, a prisoner’s waivers of the right to appeal a
conviction or sentence, or to challenge a conviction or sentence
collaterally, as through § 2255, will be enforced “provided that
they are entered into knowingly and voluntarily and their
enforcement does not work a miscarriage of justice.”

Mabry, 536

F.3d at 237 (citing U.S. v. Khattak, 237 F.3d 557 (3d Cir. 2001)
(footnote omitted)).
The “miscarriage of justice” exception is narrow and
applies only in “unusual circumstance[s].”

See United States v.

Khattak, 273 F.3d 557, 562 (3d Cir. 2001) (citations omitted),
cited in Brown v. Zickefoose, 531 F.App’x 219, 222 (3d Cir.
5

2013).

The Court of Appeals for the Third Circuit has declined

to earmark specific situations that amount to a miscarriage of
justice, but has instead instructed district courts to consider
the following factors before relieving a prisoner of a waiver:
“[T]he clarity of the error, its gravity, its
character (e.g., whether it concerns a fact issue, a
sentencing guideline, or a statutory maximum), the
impact of the error on the defendant, the impact of
correcting the error on the government, and the extent
to which the defendant acquiesced in the result.”
U.S. v. Khattak, 273 F.3d at 562 (quoting United States v.
Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001)).
In deciding a § 2255 motion, a district court “has an
independent obligation to conduct an evaluation of the validity
of a collateral waiver.”

Mabry, 536 F.3d at 238.

Here, the Plea Agreement noted that Count One carried a
maximum sentence of 30 years and that Count Eight carried a
mandatory two-year sentence; nevertheless, the parties
stipulated that a sentence within the range for a Sentencing
Guidelines Offense Level of 16 for Count One, plus 24
consecutive months imprisonment for Count Eight, would be
reasonable.

(Plea Agreement, Sch. A.)

Petitioner waived his

rights to appeal or collaterally attack any sentence that fell
within those parameters.
Aleksandr Kutsenko knows that he has and, except as
noted below in this paragraph, voluntarily waives, the
right to file any appeal, any collateral attack, or
any other writ or motion, including but not limited to
6

an appeal under 18 U.S.C. § 3742 or a motion under 28
U.S.C. § 2255, which challenges the sentence imposed
by the sentencing court if that sentence falls within
or below the Guidelines range that results from the
agreed total Guidelines offense level of 16 plus 24
consecutive months of imprisonment. ... The parties
reserve any right they may have under 18 U.S.C. § 3742
to appeal the sentencing court’s determination of the
criminal history category. ...
(Plea Agreement, Sch. A, ¶ 11.)
The Government agreed to move to dismiss Counts Two through
Seven upon Petitioner’s sentencing on a guilty plea to Counts
One and Eight.

(Plea Agreement at 1.)

In addition, the Plea Agreement explicitly set forth
Petitioner’s understanding that his guilty plea to the charged
offenses would likely result in his removal from the United
States through separate immigration proceedings.

“Accordingly,

the defendant waives any and all challenges to his guilty pela
and to his sentence based on any immigration consequences, and
agrees not to seek to withdraw his guilty plea, or to file a
direct appeal or any kind of collateral attack challenging his
guilty plea, conviction, or sentence, based on any immigration
consequences of his guilty plea.”

(Plea Agreement at 5-6.)

At a plea hearing on December 16, 2011, this Court reviewed
the Plea Agreement with Petitioner, including the likely
immigration consequences of his plea and the various waiver
provisions. (Answer, Ex. 2, Tr. of Plea Hearing at 9-12, 20, 2730.)
7

At sentencing, the Court found that the Guidelines Offense
Level of 16 applied, with a criminal history category of I, and
that those findings yielded a Guidelines sentencing range of 21
to 27 months on Count One.

All parties agreed that the Court’s

calculation was correct and was consistent with the Plea
Agreement.

(Answer, Ex. 3, Tr. of Sentencing at 10-12.)

Following arguments by counsel, and in consideration of
Petitioner’s oral and written statements, a letter from
Petitioner’s mother, and the sentencing factors enumerated in 18
U.S.C. § 3553(a), the Court imposed a sentence, on Count One, of
21 months, at the bottom of the Guidelines range and far below
the 30-year potential maximum, and a sentence of 24 consecutive
months on Count Eight, all in accordance with the Plea
Agreement.

(Ans., Ex. 3, Tr. of Sentencing at 27, 29.)

The

Court particularly noted Petitioner’s efforts at education and
rehabilitation, and the likelihood that he would be removed to
Russia.

(Ans. Ex. 3, Tr. of Sentencing at 26-28.)

Petitioner has alleged no facts suggesting that enforcement
of the collateral attack waiver would result in manifest
injustice.

To the contrary, sentence at the low end of the

Guidelines range was imposed after discussion of the facts that
the guilty plea would likely result in Petitioner being
subjected to removal proceedings and that Petitioner had been
participating in educational and rehabilitative programs.
8

Indeed, the Court even noted its understanding that certain
programs are not available to removable aliens.
Tr. of Sentencing at 37-38.)

(Ans., Ex. 3,

Thus, this Court explicitly

considered many of the factors Petitioner now suggests justify a
reduction in his sentence.

To the extent Petitioner has not

been receiving an adequate diet or medical care, allegations
that are too vague to credit here, the appropriate course of
action is to bring a civil action to compel appropriate care.
See, e.g., Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971).

This Court’s review of

federal litigation records through the Public Access to Court
Electronic Records (“PACER”) system, however, reflects that
Petitioner has not pursued any federal civil litigation remedies
to try to obtain relief.

Nor does he allege that he has pursued

any administrative remedies or other litigation to try to obtain
relief.
Under these circumstances, this Court finds that Petitioner
entered into the collateral attack waiver knowingly and
voluntarily and that enforcement of the waiver would not subject
Petitioner to manifest injustice.

The Petition will be

dismissed.
III.

CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice
or judge issues a certificate of appealability, an appeal may
9

not be taken from a final order in a proceeding under 28 U.S.C.
§ 2255.

A certificate of appealability may issue “only if the

applicant has made a substantial showing of the denial of a
constitutional right.”

28 U.S.C. § 2253(c)(2).

“A petitioner

satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)

(citation omitted), cited in U.S. v. Williams, No. 13-2976, 2013
WL 4615197, *2 (3d Cir. Aug. 30, 2013).
“When the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s underlying
constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.”

Slack v. McDaniel, 529 U.S. 473, 484

(2000), cited in Kaplan v. U.S., Civil No. 13-2554, 2013 WL
3863923, *3 (D.N.J. July 24, 2013).
Here, jurists of reason would not disagree with this
Court’s determinations regarding the enforceability of the
collateral attack waiver.

No certificate of appealability will
10

issue.
IV.

CONCLUSION

For the reasons set forth above, the Petition shall be
dismissed.

An appropriate order follows.

At Camden, New Jersey

Dated:

s/Noel L. Hillman
Noel L. Hillman
United States District Judge

July 28, 2014

11