The opinion of the court was delivered by: David M. Cohen United States Magistrate Judge
RECOMMENDED DECISION ON DEFENDANT'S MOTION FOR COLLATERAL RELIEF UNDER 28 U.S.C. § 2255
Armand Paul Veilleux, appearing pro se, moves this court to correct his sentences in two cases, imposed during a single sentencing proceeding, pursuant to 28 U.S.C. § 2255. In Docket Number 92-14 Veilleux pleaded guilty to charges of conspiracy to possess with intent to distribute in excess of 500 grams of cocaine, a violation of 21 U.S.C. §§ 841 and 846, and income tax evasion, a violation of 26 U.S.C. § 7201. In Docket Number 93-2, Veilleux was convicted after a jury trial of assault on a federal officer, in violation of 18 U.S.C. § 111; use of a firearm in a crime of violence, in violation of 18 U.S.C. § 924(c)(1); failure to appear, in violation of 18 U.S.C. § 3146(a)(1); unlawful currency importation, in violation of 31 U.S.C. § 5316(a)(1)(B); false written declaration, in violation of 18 U.S.C. § 1001; and passport forgery, in violation of 18 U.S.C. § 1543. He was sentenced to a total term of imprisonment of 294 months, 46 of which were to run concurrently with a 162 month sentence, and a period of three years of supervised release upon release from prison. A fine of $20,000 was also imposed.
A section 2255 motion may be dismissed without an evidentiary hearing if the "allegations, accepted as true, would not entitle the petitioner to relief, or if the allegations cannot be accepted as true because `they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir. 1990) (citation omitted). In this instance, I find that the allegations would not entitle Veilleux to relief, and, accordingly, I recommend that his motion be denied without an evidentiary hearing.
After pleading guilty to the charges in Docket No. 92-14, Veilleux failed to appear for sentencing. United States v. Veilleux, 40 F.3d 9, 10 (1st Cir. 1994). Instead, he moved to Canada. Transcript of Proceedings ("Trial Tr."), Docket No. 93-2-P-H (Docket No. 36) at 184. Some time later, he attempted to re-enter the United States by car; he was stopped at a border checkpoint. Id. at 186-89. The charges in Docket No. 93-2 arose from the events that followed at the checkpoint. United States v. Veilleux, 40 F.3d at 10. Veilleux presented a false passport, filled out a customs declaration form falsely, pointed a gun at a customs officer, and was found to be carrying over $176,000 in cash on his person. Trial Tr. at 189-94, 201-09.
Veilleux was represented by different counsel in the two cases. He was represented by a third lawyer on his appeal to the First Circuit, where his convictions and sentences were affirmed. 40 F.3d at 11.
Veilleux's motion is submitted on a form that he signed and dated April 20, 1997, on the line following the words "I declare under penalty of perjury that the foregoing is true and correct. Executed on ______." Docket Nos. 39 (in Docket No. 92-14) and 41 (in Docket No. 93-2). *fn1 However, on section 12 of the form, where the moving defendant is instructed to state every ground on which he bases his claim, Veilleux simply wrote "See Attached Pleadings" three times. In section 13 of the form, where the moving defendant is instructed to state briefly which of the grounds listed in section 12 were not previously presented, and why, Veilleux wrote "Ineffective assistance of counsel, all claims concerning Case No. 92-14-P-H." The form is accompanied by a document entitled "Motion to Vacate, Set Aside, and Correct Sentence and Conviction by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255." That document includes 27 numbered paragraphs of general factual assertions and a detailed statement concerning each of the three grounds upon which the claim is based, in a total of 21 pages. This document is signed by Veilleux but not sworn. It is also accompanied by a document entitled "Notice" in which Veilleux "certifies" that he mailed the motion on April 20, 1997. The motion was received and filed in this court on April 28, 1997. On April 20, 1997 Veilleux was incarcerated in a facility located in Illinois.
The government argues that Veilleux's motion is untimely under the amendment to section 2255 that was enacted by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1220, which took effect on April 24, 1996. That amendment established a one- year statute of limitations for claims brought under section 2255, to run, inter alia, from the date upon which the judgment of conviction becomes final. However, this court has allowed a one-year grace period for application of the new statute of limitations for section 2255 motions. The Constitution requires that statutes of limitation allow a reasonable time after they take effect for the commencement of suits upon existing causes of action. Texaco, Inc. v. Short, 454 U.S. 516, 527 n.21 (1982). The government does not challenge this policy, but argues that the date of receipt and filing of Veilleux's motion, four days after the extended deadline, means that the motion must be dismissed as untimely.
For prisoners who are not represented by counsel, as is the case here, the date of filing of a petition for post-conviction relief with a court is the date upon which the document is given to prison authorities by the prisoner for mailing. Houston v. Lack, 487 U.S. 266, 276 (1988). Veilleux's "Notice" states that he mailed his motion on April 20, 1997 "by turning the same over to prison mailroom personnel to forward . . . by U.S. Mail, for timely filing with the Clerk." The government argues that Veilleux's certification, which shows a timely filing under Houston, is insufficient because it is neither notarized nor signed under penalty of perjury. Houston requires neither formality; the Supreme Court requires only "reference to prison mail logs." Id. at 275. At my request, the government obtained a copy of the mail log of the Federal Correctional Institution at Greenville, Illinois, showing that Veilleux gave his motion to prison authorities for mailing on April 19, 1997. Docket No. 47. The motion is therefore timely.
The government next argues that dismissal of the motion is required because the factual allegations central to Veilleux's challenge are not made under oath. Here, while the motion form is signed under penalty of perjury, all factual allegations are made in the accompanying memorandum which is not sworn. In United States v. LaBonte, 70 F.3d 1396 (1st Cir. 1995), rev'd on other grounds, 117 S.Ct. 1673 (1997), the First Circuit held in identical circumstances that "[f]acts alluded to in an unsworn memorandum will not suffice" to meet the requirement that allegations in a section 2255 motion be presented under oath. Id. at 1413. Veilleux, in response to this argument, included with his reply to the government's memorandum an affidavit, Docket No. 46 ("Def. Aff."), in which he restates several of the factual allegations made in his earlier memorandum. For those factual allegations that are not included in this affidavit, Veilleux, like the LaBonte defendant, would not "find surcease" even if the court were empowered to overlook this "fatal shortcoming," LaBonte, 70 F.3d at 1413, because they do not entitle him to relief on the merits.
1. Plea in Docket No. 92-14
The first of three substantive grounds for relief presented by Veilleux is an argument that his guilty plea to the charges of conspiracy and tax evasion in Docket No. 92-14 was not knowing and voluntary because the court, his counsel and the assistant United States attorney prosecuting the charges all stated, erroneously, when he entered his plea that there was no minimum sentence on the conspiracy count and that a period of supervised release could not be imposed on that count. Transcript of Rule 11 Proceeding, Docket No. 92-14-P-H ("Rule 11 Tr.") (Docket No. 37), at 10-13, 20-22. Veilleux's failure to present a sworn statement that he would not have pleaded guilty if he had known that a period of supervised release might be imposed on the conspiracy count is fatal to his claim for relief on that basis. Padilla Palacios v. United States, 932 F.2d 31, 35 (1st Cir. 1991). *fn2
Veilleux does present, in his recently filed affidavit, the following sworn statement: "[H]ad I known that my guideline sentence was calculated based on the applicable mandatory minimum, I would have then not plead [sic] guilty, but rather I would have elected to proceed to trial." Def. Aff. ¶ 2. The First Circuit dealt with a similar claim just last month in United States v. McDonald, 1997 WL 464957 (1st Cir. Aug. 20, 1997). In that case, the defendant was not informed at the Rule 11 hearing during which he tendered his guilty plea that a ten-year mandatory minimum sentence applied to the charge. Id. at *1. The trial court imposed a sentence of 135 months "and calculated that sentence without any reference to the mandatory minimum." Id. at *4. In affirming the trial court's denial of the defendant's motion to vacate his guilty plea, the First Circuit observed:
It is, therefore, readily apparent that because the guideline sentencing range (at its nadir) outstripped the mandatory minimum, the latter had no relevance to, and no actual effect upon, the appellant's sentence. Consequently, the district court's failure to apprise the appellant of the mandatory minimum was an error that did no discernible harm. Id.
The First Circuit also found it significant that the Presentence Investigation Report included an unambiguous reference to the mandatory minimum sentence. Id. n.4. Like McDonald, Veilleux informed the court at sentencing that he had read the Presentence Investigation Report concerning the charges to which he had pleaded guilty, Transcript of Proceedings, Docket Nos. 92-14-P-H & 93-2-P-H (July 28, 1993) ("Sentencing Tr.") (Docket No. 34), at 3, and there is no dispute that this report establishes a minimum sentence under the ...