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Rocco Coviello v. United States of America

October 18, 2011

ROCCO COVIELLO,
PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



The opinion of the court was delivered by: Judge Dan Aaron Polster

MEMORANDUM OF OPINION AND ORDER

Pending before the Court is Petitioner Rocco Coviello's pro se motion under 28 U.S.C. §2255 to vacate his conviction and sentence. The motion was filed on September 26, 2011 (Doc. # 1).

I.

On December 18, 2004, Petitioner was indicted on four counts of drug distribution and money laundering. (1:04-CR-595, Doc. # 1).*fn1 On January 3, 2006, Petitioner filed a motion to dismiss the indictment for violation of the Speedy Trial Act. (Doc. # 530). The Court denied the motion on January 11, 2006. (Doc. # 538).*fn2

On January 17, 2006, Petitioner entered a conditional guilty plea on all four counts. (See non-document entry of 01/17/06, Minutes of Proceeding). The plea was conditioned on Petitioner's right to appeal the denial of his motion to dismiss. On April 5, 2006, the Court sentenced Petitioner to a prison term of 360 months followed by five years of supervised release. (Doc. # 592).

Petitioner timely filed his appeal with the Sixth Circuit. The Sixth Circuit vacated the Court's denial of Petitioner's motion to dismiss and remanded the case to the Court with the directive to make factual findings regarding the number of days Petitioner was engaged in active plea negotiations. Coviello v. United States, 287 Fed. Appx. 503, No. 06-3675 (6th Cir. 2008) (per curiam). The Court held a hearing on December 18, 2008, and subsequently denied the motion to dismiss. (Doc. # 742).

Petitioner appealed that decision, which the Sixth Circuit affirmed on March 12, 2010. Coviello v. United States, No. 09-3011 (6th Cir. Mar. 12, 2010). Petitioner requested en banc rehearing, which was denied on June 24, 2010, and did not appeal to the United States Supreme Court. Id. On September 26, 2011, Petitioner filed the instant motion pursuant to 28 U.S.C. § 2255.

II.

Under 28 U.S.C. § 2255, a federal district court may grant relief to a prisoner in custody under a sentence imposed by that court "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 . . . ." Id. To prevail on a § 2255 claim, the petitioner must show a fundamental defect in the proceedings "which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Nagi v. United States, 90 F.3d 130, 133--34 (6th Cir. 1996).

Rule 4(b) of the Rules Governing Section 2255 Proceedings requires the judge who receives the § 2225 petition to promptly examine it and the records and transcripts of prior proceedings related to the judgment under attack.

If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified. Otherwise, the judge shall order the United States Attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate.

Id. Having examined the § 2255 petition and having reviewed the records and transcripts relating to the judgment under attack, the Court concludes that Petitioner is not entitled to relief. Summary dismissal is therefore appropriate pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the following reasons.

III.

Petitioner states three grounds for relief. The first ground alleges a violation of the Speedy Trial Act. Petitioner argues that, on direct appeal, the Sixth Circuit made erroneous conclusions and was factually ...


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