Opinion
No. 05 Civ. 2690 (LTS)(GWG), No. 04 Crim. 0014 (LTS).
June 28, 2005
MEMORANDUM ORDER
Petitioner Filiberto Colon ("Petitioner" or "Colon"), who was convicted of conspiracy upon a plea of guilty and is serving a sentence of 24 months of imprisonment, moves pro se, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct the sentence. The Court has thoroughly reviewed Colon's submissions in connection with his Section 2255 petition. Because the motion and the files and records of the case conclusively show that Colon is not entitled to relief, the Court did not direct the service of notice of Colon's petition upon the United States Attorney. See 28 U.S.C.A. § 2255 (West 1996). The motion is denied for the following reasons.
BACKGROUND
On April 29, 2004, Petitioner pled guilty, pursuant to a plea agreement, to one count of conspiracy to commit mail, wire, and securities fraud, in violation of 18 U.S.C. § 371. Sentence was imposed on Petitioner in accordance with the applicable United States Sentencing Guidelines ("Guidelines"), pursuant to Guidelines calculations that included an upward offense level adjustment reflecting the loss amount incurred by his victims as a result of Petitioner's offense. Petitioner's plea agreement included a stipulation as to the amount of the aggregate loss to be taken into account for Guidelines purposes, as well as to the offense level increase attributable to that loss amount. Petitioner specifically acknowledged this provision of his plea agreement, and the effect of the loss amount on Guidelines calculations, during his allocution before the Court. The plea agreement also included a provision expressly waiving Petitioner's rights to directly appeal, or litigate under 28 U.S.C. § 2255 and/or 28 U.S.C. § 2245, his sentence.
Tr. of April 29, 2004 proceedings ("Plea Tr.") at 24.
Id.
Petitioner was subsequently sentenced by this Court principally to 24 months imprisonment, and final judgment in this matter was entered on September 7, 2004. Petitioner did not appeal from the judgment of conviction. The instant motion was received by the Pro Se Office of this Court on February 22, 2005.
DISCUSSION
Under 28 U.S.C. § 2255, "A prisoner in custody . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, . . . may move the court . . . to vacate, set aside or correct the sentence." 28 U.S.C.A. § 2255 (West 1996). In his motion papers, Colon argues that he was denied effective assistance of counsel, in violation of his rights under the Sixth Amendment to the Constitution of the United States, and that the offense level increase in the Court's Guidelines calculation in respect of the loss amount was imposed unconstitutionally. (See Pet.'s Mem. at 2-3.) The Court will address each argument in turn.
As noted above, Colon did not appeal his conviction and, in fact, waived his right to appeal in his plea agreement. A defendant who does not make a timely appeal "ordinarily [is] procedurally barred from challenging his conviction. . . . [H]owever, a petitioner may overcome this procedural bar if he can demonstrate `cause' and `prejudice' or that he is `actually innocent.'" Fountain v. United States, 357 F.3d 250, 254 (2d Cir. 2004). The procedural default rule does not, however, apply to claims of ineffective assistance of counsel. Id. Accordingly, the Court will examine Colon's ineffective assistance of counsel claim on the merits. Petitioner cannot sustain his additional claim of error because, as explained below, he has waived his right to attack collaterally his sentence and his legal argument is meritless in any event.
Colon claims trial counsel's assistance was ineffective in that "Counsel fail[ed] to file a direct appeal after [Colon] requested him to do so." (Pet.'s Mem. at 3.) In addition, Colon alleges that his counsel provided ineffective assistance by "fail[ing] to object to the enhancement in [his] case[, thereby] den[ying Colon] his 6th amendment right." (Id.) "Petitioner asserts that ineffective assistance of counsel is cause[, and] . . . Petitioner suffered prejudice as a result of errors and counsel's performance." (Id.)
The Sixth Amendment affords the defendant "[i]n all criminal prosecutions, . . . the right . . . to have the assistance of counsel for his defense." U.S. Const. amend. VI. To demonstrate ineffective assistance of counsel, Petitioner "must show that the attorney's performance fell below an objective standard of reasonableness and that the outcome of his case would have been different had the attorney performed adequately." Fountain, 357 F.3d at 254 (quoting United States v. Perez, 129 F.3d 255, 261 (2d Cir. 1997)). Proof of such deficient performance "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed [Petitioner] by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). Colon has made no such showing.
Even crediting Colon's assertion that counsel failed to comply with Petitioner's request that a timely appeal of the conviction be filed, Petitioner's assertion of ineffective assistance on this ground is frivolous. As noted above, Colon's plea agreement specifically provided for the waiver of his rights to appeal and, indeed, to attack his sentence pursuant to Section 2255 if the Court sentenced him within or below the stipulated Guidelines range specified in the plea agreement. Colon acknowledged that provision of the agreement during his plea allocution, and the Court found that he had made a knowing and voluntary waiver of his rights. (Plea Tr. at 25, 39.) The sentence imposed was at the bottom of the 24-30 month stipulated range. "Waivers of appellate rights are valid when they are entered into knowingly and intelligently, with the effective assistance of counsel." United States v. Montsalve, 388 F.3d 71, 73 (2d Cir. 2004). Petitioner proffers no contention that counsel's assistance in connection with the plea agreement was ineffective, nor would the record support such a contention. Accordingly, Petitioner's claim that counsel's assistance was ineffective because he failed to file an appeal notwithstanding a valid waiver of the right to appeal is frivolous and is rejected.
Petitioner's claim of ineffective assistance in connection with the Court's Guideline calculations at sentencing is similarly frivolous. CitingBlakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) andUnited States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), both of which were decided after his sentencing, Colon argues that counsel's performance fell below the requisite standard because he failed to object on Sixth Amendment jury trial right grounds to the loss-amount related increase in his offense level. This argument finds no support in either Supreme Court decision, for both recognize that a court may impose even a mandatory sentence enhancement on the basis of facts admitted by the defendant.See, Booker, ___ U.S. ___, 125 S. Ct. at 756; Blakely, 542 U.S. 296, 124 S. Ct. at 2537. Here, Colon stipulated to the very loss amount figures and offense level increase to which he claims counsel should have objected. Where a defendant is sentenced on the basis of facts he freely and knowingly admitted in his plea agreement, "the constitutional requirement of a sentence based solely on facts admitted by the defendant set forth in Blakely has been satisfied." United States v. Montsalve, 388 F.3d 71, 73 (2d Cir. 2004).
CONCLUSION
Accordingly, Colon's motion pursuant to 28 U.S.C. § 2255 is denied. Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1) (West 2002). A certificate will be granted "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealabilty). The Court finds that Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appealability. 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. See Coppedge v. United States, 369 U.S. 438, 444 (1962). The Clerk of Court is respectfully requested to close this matter.