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holding that, although attorney failed to file notice of appeal when so directed by client, petitioner had no right to appeal because that right had been waived.
Summary of this case from Lopez v. U.S.Opinion
No. 00-CV-1191.
September 19, 2000.
Thomas Castro FCI Fort Dix, NJ, Pro Se.
Office of the United States Attorney Miroslav Lovric, AUSA, Binghamton N.Y. For the United States.
MEMORANDUM — DECISION ORDER
Petitioner Thomas Castro was sentenced to seventy months imprisonment based on his plea of guilty to a violation of 21 U.S.C. § 841, 846 (conspiracy for the purpose of knowingly and intentionally possessing with the intent to distribute and distribution of cocaine). Presently before the Court is Castro's petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the ground that he was denied the effective assistance of counsel. Petitioner alleges that: (1) his attorney failed to file a notice of appeal; (2) his attorney promised him that he would be sentenced to only three years and that his attorney would file an appeal to protect his rights; and (3) "my lawyer was ineffective for failing to argued [sic] that I was not capable to produce over five kilos of cocaine."
The instant Petition must be dismissed. While an attorney's failure to file a notice of appeal when so directed by his client constitutes the ineffective assistance of counsel, see Roe v. Flores-Ortega, 120 S.Ct. 1029, 1035-36 (2000); Restrepo v. Kelly, 178 F.3d 634, 642 (2d Cir. 1999), here, Petitioner had no right to an appeal. Because Petitioner waived his right to file an appeal, he cannot claim ineffective assistance of counsel for failure to file such an appeal. See United States v. McDaniel, 2000 WL 235258, at *9 (E.D. La. 2000) ("[I]t was Petitioner himself who agreed to waive his right to appeal his sentence except under limited circumstances. Therefore, this would not constitute error on behalf of Petitioner's counsel."); United States v. Sentmore, 1999 WL 219775, at *1 (E.D. La. 1999). In short, Petitioner cannot claim to have been denied the very right he knowingly and voluntarily waived.
"It is by now well-settled that a defendant's knowing and voluntary waiver of his right to appeal a sentence within an agreed upon guideline range is enforceable." United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998) (and cases cited therein). Petitioner does not contend that his waiver of his right to appeal was not knowing and voluntary, see id. at 106, and, in any event, such a contention would be contrary to the facts of this case. The plea agreement expressly stated that:
defendant has been completely and thoroughly informed of all his . . appellate rights concerning the right to appeal a conviction and the right to appeal a sentence. Having been completely informed of these rights, and fully understanding these rights, defendant expressly waives and gives up all his . . . rights to appeal from any judgment of conviction in this case. . . . [D]efendant also expressly waives and gives up his . . . right to appeal the sentence in this case so long as that sentence is within the Sentencing Guidelines range, that range being whatever range the Court determines defendant's conduct falls within [based upon the offense level that the Court determines applies to defendant's conduct] and coupled with what criminal history category the Court determines applies to Defendant. Defendant also understands and expressly agrees that the Sentencing Guidelines range [and therefore the offense level] determined by the Court nay be greater than that which corresponds to the offense level that defendant and the government agreed to in paragraph 16. Defendant expressly waives and gives up the right to appeal the District Court's Sentencing Guidelines calculations/scoring/applications. Therefore, defendant only reserves the right to appeal his . . . sentence if the Court should apply as" upward departure" from the Sentencing Guidelines.
Plea Agreement at 12-13 (emphasis and brackets in original) This is a thorough explanation of Petitioner's waiver of his appellate rights. Moreover, at sentencing, the Court specifically inquired of Petitioner's waiver of appeal rights. As will be discussed, Petitioner's sentence was within the guidelines range and, thus, he had no right to appeal that sentence. See Djelevic, at 106.
In addition, Petitioner does not claim the ineffective assistance of counsel in entering the plea agreement. See Id. at 106. Rather, the basis of his claim appears to be, in part, that his attorney was ineffective for failing to argue at sentencing that "I was not capable to produce over five kilos of cocaine," and that "I did not have reasonable foreseebility [sic] to produce such an amount." As will be discussed, these arguments are precluded by the plain terms of the plea agreement.
Lastly, there is no support for the notion that Petitioner's attorney promised him a sentence of only three years. Petitioner offers no support for this contention other than his conclusory assertion in his Petition. In fact, the plain terms of the plea agreement foreclose Petitioner's argument in this regard.
The plea agreement clearly informed Petitioner that sentencing was within the discretion of the Court (limited, of course, by the applicable statutes and Sentencing Guidelines), that the Court could sentence him to "a possible maximum penalty of Life imprisonment," and that there was a statutory minimum of 10 years. See Plea Agreement at 6. In the plea agreement, Petitioner agreed that "the weight of cocaine attributable to [him] for the conduct to which [he] is pleading guilty . . . is at least 5 kilograms of cocaine but less than 15 kilograms of cocaine." Id. at 9. Petitioner and the government further agreed that a Sentencing Guideline calculation of 29 was appropriate. See id. Petitioner also agreed in the plea agreement "that there are no promises or inducements of any kind which have caused [him] to enter a plead of guilty, other than those set forth in this Agreement." Id. at 10.
Pursuant to § 2D1.1 and based on the quantity Petitioner admitted to, the offense level was a 32, which was reduced by three levels because of Petitioner's acceptance of responsibility.
Based on the foregoing, Petitioner should have anticipated a possible sentence of 87-108 months. See U.S.S.G. Sentencing Table based on Offense Level of 29, Criminal History Category I. Moreover, at sentencing, the Court advised Plaintiff of the maximum penalties under the law and that the actual sentence would be imposed in accordance with the Sentencing Guidelines and applicable statutes. Despite these warnings, Petitioner opted to continue with his plea of guilty.
This range does not take into account the ten year statutory minimum of which Petitioner was aware. See 21 U.S.C. § 841(b)(1)(A). It should be further noted that, at sentencing, the Court found that Petitioner was entitled to the safety valve provision contained at U.S.S.G. § 5C1.2 and, thus, pursuant to U.S.S.G. § 2D1.1(b)(6), reduced the offense level by two levels to a 27 (guideline range of 70-87). The Court sentenced Petitioner to the shortest sentence within the permissible guideline range — 70 months.
Because the actual sentence imposed was within the Sentencing Guidelines range, by the plain terms of the plea agreement, Petitioner waived his right to appeal that sentence. See Djelevic, 161 F.3d at 106. Further, because the basis of any appeal appears to be based on the quantity of drugs attributed to Petitioner at sentencing and Petitioner accepted responsibility for 5-15 kilograms of cocaine in the plea agreement, Petitioner would not be entitled to maintain such an appeal. Finally, there is no factual basis for Petitioner's attorney's alleged promise of a sentence of 3 years. This is plainly contradicted by the plea agreement itself and the advisements by the Court at sentencing.
For the foregoing reasons, the Petition is DISMISSED.