Opinion
02 Civ. 8063 (RwS)
December 13, 2002
DAVID CARABALLO, Petitioner Pro Se, Otisville, NY.
HONORABLE JAMES B. COMEY, United States Attorney for the Southern District of New York Attorney for Respondent, New York, NY, By: AITAN D. GOELMAN, ESQ., Assistant US Attorney Of Counsel
OPINION
The Government has moved for an order denying the petition for a writ of habeas corpus of pro se petitioner David Caraballo ("Caraballo") through which Caraballo claims, pursuant to 28 U.S.C. § 2255, that his guilty plea should be withdrawn due to ineffective assistance of counsel and the fact that he was unaware that his sentence, which includes a 140-month period of incarceration and three-year period of supervised release, would go beyond the twelve-year maximum period of imprisonment of the statutes under which he pled guilty. For the following reasons, the Government's motion is granted, and the petition for a writ of habeas corpus is denied.
Procedural History
On April 5, 2000, Information s12 98 Crim. 1316 (RWS) was filed, charging Caraballo with three counts of using a communication facility to commit, cause or facilitate a conspiracy to distribute and possess with the intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. § 843(b) and 2. Caraballo pleaded guilty to each of the counts on April 5, 2002, pursuant to a written plea agreement. Under the terms of the plea agreement, Caraballo agreed to plead guilty to the charges in the Information, with the following stipulations: Caraballo's base offense level was 34 pursuant to the United States Sentencing Guidelines § 2D1.1 because his offense involved the distribution of at least three kilograms but less than ten kilograms of heroin; Caraballo's offense level should be reduced by two levels pursuant to Guidelines § 3E1.1(a), assuming that he demonstrated at his plea proceeding that he accepted responsibility for his conduct; Caraballo's Criminal History Category was II; and based on a total offense level of 32 and a Criminal History Category of II, Caraballo's Guidelines range was 135 to 168 months' imprisonment. Plea Agreement at 2-4 (April 1, 2000). The parties further stipulated that, because the statutory maximum term of incarceration for the offenses to which Caraballo pleaded guilty was twelve years' (144 months') imprisonment, his sentencing range was 135 to 144 months' incarceration. Id. at 4. The plea agreement also stated that each of the three counts carried a maximum term of one year of supervised release in addition to the maximum term of imprisonment.Id. at 1.
When Caraballo appeared before Magistrate Judge Peck on April 5, 2000, Magistrate Judge Peck initially ascertained that Caraballo felt physically and mentally able to proceed with the plea proceeding and was not having any difficulty seeing, hearing, or understanding the proceeding. Plea Allocution, at 3-4 (April 5, 2000). Magistrate Judge Peck also asked Caraballo if he was satisfied with his representation by counsel, Robert Koppelman, Esq., and Caraballo replied that he was. Id. at 6.
Magistrate Judge Peck then explained the penalties applicable to the counts with which Caraballo was charged in the following colloquy:
THE COURT: I want you to understand that you are charged in each count with the use of a telephone in connection with a drug felony offense. Each count carried a maximum of four years' imprisonment, one year supervised release, maximum fine of the greater of $30,000 or twice the gain from the offense, a mandatory $50 special assessment on count 1, and a hundred dollars each on counts 2 and 3. And thus, your total maximum sentence in terms of imprisonment on all three counts is 12 years' imprisonment. Do you understand that?
THE DEFENDANT: Yes.
Id. at 6. Magistrate Judge Peck subsequently ascertained that Caraballo understood that violation of his potential supervised release sentence could merit additional imprisonment:
THE COURT: And do you understand that if you're sentenced to a term of supervised release and you violate any of the terms or conditions of that release, you face additional punishment, including additional imprisonment?
THE DEFENDANT: I understand.
Id. at 10. Magistrate Judge Peck also described the rights that Caraballo would forfeit by pleading guilty and the manner in which the Guidelines would apply in Caraballo's case. Id. at 6-9.
Caraballo acknowledged that he understood that this Court had the authority under certain circumstances to impose a sentence more or less severe than that called for by the Guidelines, but that Caraballo would be bound by his guilty plea in any event. Id. at 10. Caraballo affirmed that no threats had been made to him to influence or convince him to plead guilty, and that no promises other than those contained in the plea agreement had been made to him. Id. at 10-11. After hearing Caraballo describe his conduct with respect to each charge in the Information, Magistrate Judge Peck found that Caraballo was competent to enter a guilty plea and that the plea had a factual basis, and was being made freely, voluntarily and knowingly, and recommended acceptance of the guilty plea. Id. at 12-15. This Court subsequently accepted Magistrate Judge Peck's recommendation.
In a letter dated June 24, 2000, Caraballo attempted to withdraw his guilty plea. According to Caraballo, he had pleaded guilty only because his counsel improperly pressured him and that he was, in fact, innocent of the crimes to which he had pleaded guilty. On August 28, 2000, the Court appointed Dawn Cardi, Esq., to litigate on Caraballo's behalf his motion to withdraw the guilty plea. Cardi submitted a letter on Caraballo's behalf on December 27, 2000, and the Court heard oral argument on the motion on January 31, 2001. The issue that Caraballo raises now was not mentioned in any of the letters submitted in support of that motion, nor was it mentioned at oral argument on the motion.
On February 8, 2001, the Court denied Caraballo's motion, finding that Caraballo had failed to meet his burden of raising a "significant question" about the voluntariness of his plea. The Court observed that Caraballo's own plea allocution was entitled to a "strong presumption" of veracity and confirmed Caraballo's understanding of the consequences of his plea and the voluntary nature of his guilty plea.
On June 7, 2001, the Court issued a sentencing opinion in which it stated that it intended to impose a sentence of 144 months' imprisonment, to be followed by a three-year term of supervised release. On June 11, 2001, Caraballo was sentenced to 140 months' incarceration, to be followed by a three-year term of supervised release. Caraballo was also ordered to pay a $17,500 fine and the special assessments. At no point during the sentencing process did Caraballo raise any objection to the term of supervised release.
Caraballo filed a timely notice of appeal and subsequently a brief on appeal. In it, Caraballo argued that the Court had erred in refusing to allow him to withdraw his guilty plea and that his original counsel had provided him with constitutionally inadequate assistance of counsel. Caraballo did not argue on appeal, as he now does for the first time, that his sentence to a three-year term of supervised release following incarceration violated the statutory maximum term of imprisonment for the crimes to which he pleaded guilty. On March 29, 2002, the Court of Appeals rejected Caraballo's motion to withdraw his guilty plea, summarily affirming this Court.
Caraballo filed the instant petition on October 10, 2002, alleging two grounds: (1) the sentence exceeds the statutory maximum, and Caraballo did not believe that he could receive more than the twelve-year maximum; and (2) ineffective assistance of counsel. The Government submitted its opposition papers on November 19, 2002, and Caraballo replied on December 5, 2002, at which time the motion was considered fully submitted.
Discussion I. Standard of Review
In addressing the present motion, the Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers . . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, the Court is also aware that pro se status "`does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).
II. Caraballo Is Procedurally Barred From Making This Claim
Caraballo raises for the first time in this petition the issue of his lack of understanding that his sentence would be more than the twelve-year maximum prescribed by the statute under which he pled guilty. Unless one of two exceptions applies, a petitioner may not obtain collateral relief from any alleged error in cases where a petitioner fails to properly raise his claim on direct review unless he demonstrates both "cause" for the waiver and actual "prejudice" resulting from any alleged error. United States v. Frady, 456 U.S. 152, 167-68 (1982) (establishing cause and prejudice test for collateral relief based on trial errors to which no contemporaneous objection was made); Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992) (in non-Sixth Amendment context, the "failure to raise a [claim] on direct appeal is itself a procedural default, thereby implicating the cause and prejudice test"). The exceptions are (1) ineffective assistance of counsel, Billy-Eko v. United States, 8 F.3d 111, 113 (2d Cir. 1993) superseded by statute on other grounds as noted in Triestman v. United States, 124 F.3d 361, 369 n. 8 (2d Cir. 1997); and (2) cases where "failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991)
One of Caraballo's claims is ineffective assistance of counsel. A petitioner may raise a claim for ineffective assistance of counsel for the first time in a collateral proceeding brought pursuant to 28 U.S.C. § 2255, except when (1) the petitioner had new counsel on appeal, (2) the claim is based solely on the record developed at trial, and (3) the petitioner is unable to demonstrate "cause and prejudice."Abbamonte v. United States, 160 F.3d 922, 925 (2d Cir. 1998); Billy-Eko, 8 F.3d at 115. Because Caraballo had new counsel on appeal and the claim is based solely on the record developed during the sentencing process, Caraballo must demonstrate cause and prejudice.
Caraballo does not detail this claim in his petition. Presumably, he argues that his trial counsel was ineffective in not advising him that, as a result of his plea, he could receive three years of supervised release in addition to the twelve-year maximum sentence pursuant to the statute under which he pled guilty. Caraballo could not argue that his counsel on appeal was ineffective in not raising the issue on direct appeal. E.g., McAndrews v. Chesney, No. Civ. A. 97-1145, 1998 WL 136508 (E.D.Pa. March 23, 1998) (attorney's representation of prisoner in post-conviction collateral review in either federal or state court is not proper habeas ground).
Caraballo is unable to demonstrate cause and prejudice for either the ineffective assistance of counsel claim or the related claim regarding his understanding of the statutory maximum.
With regard to the "cause" prong, Caraballo states that he was not made aware that he could be sentenced to a period of supervised release in addition to a maximum of twelve years' incarceration. This claim is belied by the record. Magistrate Judge Peck informed Caraballo explicitly that he could be charged, on each of three counts, with "a maximum of four years' imprisonment, one year supervised release, maximum fine of the greater of $30,000 or twice the gain from the offense, a mandatory $50 special assessment on count 1, and a hundred dollars each on counts 2 and 3." Allocution, at 6. There is nothing within this statement that would suggest that the supervised release was an alternative to, or not a potential addition to, the maximum four years' imprisonment and fines. Magistrate Judge Peck also later described supervised release as a separate and ensuing punishment to incarceration, when he informed Caraballo that any violation of supervised release could result in "additional imprisonment." Id. at 10.
Further, a defendant need not be told that the term of imprisonment plus the term of supervised release could result in a total sentence of more than the statutory maximum. E.g., United States v. Feliz, 5 Fed. Appx. 87, 88, 2001 WL 266318 (2d Cir. 2001) (unpublished) ("Because Judge Peck informed [defendant] of the maximum penalties he faced, which included 20 years' imprisonment and three years' supervised release, and informed [defendant] that he could face `additional' imprisonment if he were to violate the terms of his supervised release, we hold that Judge Peck complied with Rule 11(c)(1)"); united states v. Van over, 888 F.2d 1117, 1119 (6th Cir. 1989) (affirming where district court presented imprisonment and supervised release "as separate and distinct punishments to which the defendant could be subjected"). It is true that during this same colloquy, Magistrate Judge Peck only re-emphasized that fact that Caraballo could be subject to twelve years' imprisonment. In light of the above statements, however, it was not necessary for him to re-emphasize the fact that Caraballo was also potentially subject to a maximum of three years' supervised release on top of the maximum twelve years' imprisonment.
Because Caraballo was notified of the possibility that he could receive a term of supervised release in addition to his maximum term of imprisonment, there also does not exist any prejudice or clear error. As the Government explains, the cases Caraballo relies upon involved situations where defendants were, unlike Caraballo, not informed during their plea allocutions that the term of supervised release would be in addition to the term of imprisonment. E.g., United States v. Feurtado, 191 F.3d 420, 427- 28 (4th Cir. 1999) (granting relief where defendants were not advised by court that they faced five-year term of supervised release in addition to sentence of imprisonment); Moore v. United States, 592 F.2d 753, 756 (4th Cir. 1979) (remanding for resentencing where defendant was sentenced to 15 years' incarceration and three years' special parole under statute with a 15-year limit because defendant was not made aware that term of special parole could be imposed in addition to term of imprisonment); Meyer v. United States, 802 F. Supp. 845 (E.D.N.Y. 1992) (granting petition where government and court failed to describe special parole term of lifelong duration because the parole time and eighteen-year imprisonment went beyond the twenty-year imprisonment agreed to by defendant).
There is no question that the statutes provide for a period of supervised release in addition to a maximum term of imprisonment; there is no requirement that the supervised release be included in the maximum term. For instance, § 843(d)(1) sets forth a maximum term of imprisonment of "not more than 4 years." Section 3583(b)(3) authorizes a maximum term of one year of supervised release for a Class E felony such as a conviction under § 843(b) as a term to begin "after imprisonment." Therefore, under these statutes it is proper for a maximum term of one year of supervised release to follow a maximum term of "not more than 4 years" imprisonment. As a result, as discussed above, Caraballo's only argument must be that he was not made aware of this rule.
Because Caraballo has not shown cause or prejudice, he is procedurally defaulted from raising this claim which — as discussed above — would in any case be unavailing. As Caraballo has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). Further, a certificate of appealability will not issue because Caraballo has not shown that reasonable jurists would find that the above finding of procedural default was incorrect. Slack v. McDaniel, 529 U.S. 473 (2000). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962)
Conclusion
For the foregoing reasons, the Government's motion is granted and Caraballo's petition is denied.