No Challenges to Sentencing in Supervised Release Hearing

Ruling in United States v. Warren , the 2nd Circuit has joined others in holding that a conviction or sentence may not be attacked collaterally in a revocation proceeding, but only on direct appeal or via a petition for a writ of habeas corpus. Judge Ralph K. Winter said that barring the use of a collateral attack in this context "furthers the important interest of promoting the finality of judgments."

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A defendant may not challenge his underlying conviction or sentence in a proceeding to revoke his supervised release, the 2nd U.S. Circuit Court of Appeals has ruled. The court joined other circuits in holding that a conviction or sentence may not be attacked collaterally in a revocation proceeding, but only on direct appeal or through a petition for a writ of habeas corpus. The circuit court’s ruling arose in United States v. Warren, 01-1684, a case in which defendant Stephen Thomas Warren was on supervised release following a 12 1/2-year prison term for a 1989 conviction for conspiracy to distribute 500 or more grams of cocaine and possession of a firearm during a drug trafficking offense. In October 2001, Warren admitted to using narcotics, a violation of the conditions of his term of supervised release. Eastern District Judge Jacob Mishler sentenced Warren to 3 years in prison, which was the maximum term based on his conviction for a Class B felony. But Warren argued that the Class B felony conviction violated the rule announced by the U.S. Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), which stated that any fact, other than that of a prior conviction, which increases the penalty beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. Because drug quantity at his trial was not decided by the jury, Warren contended that he should instead have been convicted of a Class C felony, which would have left him open to a penalty of only two years in prison for violating the terms of his supervised release. In writing for the court, 2nd Circuit Judge Ralph K. Winter said that Warren, among other things, failed to challenge both his underlying conviction and his 3-year sentence at the revocation proceeding. This failure, the judge said, meant that the 2nd Circuit would only review the sentence under the “plain error” standard. “We find no error, much less plain error, because the validity of his sentence could not properly be raised in the supervised release revocation proceeding,” he said. The judge said barring the use of a collateral attack in this context “furthers the important interest of promoting the finality of judgments.” “Virtually every stage of the federal criminal justice process is progressively tailored to further the goal of finality without foreclosing relief for miscarriages of justice,” he said. “A defendant’s freedom to assert claims is greatest at trial. Claims of error not made in the trial court will generally be reviewed only for plain error on direct appeal.” Should the defendant fail to make a claim of error on direct appeal, the judge said, habeas relief is still available, as long as the petition is timely and is not a second or subsequent petition. The defendant must still show “cause and prejudice,” he said, and the collateral attack is “generally limited to violations of statutory or constitutional law.” “Remedies for error are thus available to criminal defendants but subject to various substantive and procedural limitations as the legal and temporal distance from the trial or guilty plea increases,” the judge said. “This detailed scheme is not consistent with allowing a supervised release revocation proceeding to become a forum for raising claims of error in the conviction or original sentence.” Winter said that allowing such attacks in a revocation proceeding would “lead to endless confusion over the nature of the claims that could be made and in what circumstances such claims could be brought.” “A violation of supervised release is a serious matter, and prosecution of it should not be impeded by the threat of consuming judicial and prosecutorial resources in addressing a host of issues unrelated to the violation,” he said. “Finally, it would be unfair to those defendants who do not violate the terms of their supervised release to grant those who do a special opportunity to collaterally attack their underlying convictions.” Judges Joseph M. McLaughlin and Jose A. Cabranes joined in the opinion. Edward R. Palermo of Palermo & Palermo in Hauppauge represented Warren. Assistant U.S. Attorneys Emily Berger and Peter Norling represented the government.

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