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Lebowitz v. United States

decided: June 9, 1989.

BARRY LEBOWITZ, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE



Appeal from an order entered January 17, 1989 in the Eastern District of New York, I. Leo Glasser, District Judge, denying after a hearing a § 2255 motion to vacate a conviction and four year sentence following a guilty plea to an indictment charging escape from federal custody. Affirmed.

Oakes, Chief Judge, Timbers and Meskill, Circuit Judges.

Author: Timbers

TIMBERS, Circuit Judge

Appellant Barry Lebowitz appeals from an order entered January 17, 1989 in the Eastern District of New York, I. Leo Glasser, District Judge, denying after a hearing his motion pursuant to 28 U.S.C. § 2255 (1982) to vacate his conviction and four year sentence following a guilty plea. He alleged that his conviction and sentence for escape from federal custody should be vacated since the dismissal of an earlier complaint filed on the same charge on the ground that the Speedy Trial Act had been violated should have been with prejudice to later prosecution. In denying the motion, the district court held that, by pleading guilty to the escape offense, appellant waived his right to challenge the court's earlier denial of his motion to dismiss the indictment on the very same ground.

We agree with the district court that appellant waived his right to assert the instant claim. We affirm.

I.

We shall summarize only those facts believed necessary to an understanding of the issues raised on appeal.

On January 8, 1985,*fn1 appellant escaped from a federal halfway house in Brooklyn, N.Y. where he was completing a one to six year sentence imposed following a prior conviction of fraud and false pretenses. At the time of his escape, appellant had 66 days remaining to be served on that sentence. On January 9, a teletype message was published in which the escape was announced and which authorized the United States Marshal to apprehend and remand appellant to the Metropolitan Correctional Center (MCC) in New York.

On April 10, since appellant continued to remain at large, the government decided to prosecute him for escape pursuant to 18 U.S.C. § 751(a) (1982) and issued a warrant for his arrest. He was captured in Texas on April 25 and was ordered remanded to the MCC in New York, where he arrived on May 13. Due to an administrative error, the United States Attorney's Office did not learn of his capture until May 30.

On June 6, the complaint charging appellant with escape was dismissed by a magistrate pursuant to § 3162(a)(1) of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (1982 & Supp. V 1987), on the ground that more than 30 days had elapsed since appellant's arrest and no indictment had yet been returned. The magistrate did not state whether the complaint was dismissed with or without prejudice. Appellant remained incarcerated at MCC until September 12.

Appellant was indicted on the same escape offense pursuant to an indictment returned August 16. He moved for dismissal of the indictment on the ground that he had been denied his Speedy Trial Act and due process rights. In December, I. Leo Glasser, District Judge, denied appellant's motion after finding that under the Speedy Trial Act dismissal of the original complaint without prejudice was proper. Appellant entered a plea of guilty on January 20, 1987 to the indictment charging escape and was sentenced by Judge Glasser to a four year term of imprisonment.

In October 1988, appellant filed the instant § 2255 motion challenging his conviction and sentence on the escape charge on the ground that the district court, in denying his motion to dismiss the indictment, erroneously had assumed that the magistrate's dismissal of the original complaint had been without prejudice, whereas actually there was no indication whether the dismissal was with or without prejudice. Appellant asserted that, had the district court conducted a de novo review of the Speedy Trial Act factors, it would have concluded that the original complaint should have been dismissed with prejudice and that therefore his subsequent conviction pursuant to the indictment charging that offense should be vacated. After holding a hearing on November 14, 1988, Judge Glasser denied the motion and dismissed the case.

On appeal, appellant argues that since a proper assessment of the Speedy Trial Act factors indicates that the original complaint on the escape offense should have been dismissed with prejudice, his later conviction on the same charge should be vacated. Appellant also argues that he has not waived his right to appeal by pleading guilty since his claim is jurisdictional. The government argues that this appeal is barred by appellant's guilty plea and that in any ...


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