Opinion
No. 04 Civ. 9935 (SHS).
May 27, 2005
OPINION ORDER
Michael Crews, proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Crews asserts two grounds in support of his petition. He first claims that his counsel, Deirdre von Dornum, was ineffective because she did not object to certain sentencing enhancements used to calculate Crews' sentence and she did not "file an appeal concerning his sentencing enhancements." (See Petitioner's Mem. of Law dated Nov. 3, 2004 at 12). He claims next that his sentence is invalid in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). As set forth more fully below, Crews' petition is denied and a certificate of appealability will not issue because Crews waived his right to collaterally attack his sentence; even if he had not waived that right, von Dornum was not ineffective; and Booker does not apply retroactively.
I. Background
In 2003, a grand jury returned an indictment against Crews alleging one count of robbing the Washington Mutual Bank on September 12, 2003, in violation of 18 U.S.C. § 2113(a), (d), and one count of brandishing a firearm during that robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The charge of brandishing a firearm carried a mandatory minimum penalty of seven years' imprisonment to run consecutively to any penalty imposed for the bank robbery. See 18 U.S.C. §§ 924(c)(1)(A)(ii), 924(c)(1)(D)(ii), 2113(d).
During the course of "extensive plea negotiations" between the parties, the government indicated that it would seek a superseding indictment against Crews charging him with a second count of bank robbery for the robbery of Apple Bank on August 29, 2003 and a second count of brandishing a firearm during that robbery. (Affirmation of Deirdre D. von Dornum, Esq. dated March 10, 2005 ¶ 6). The second charge of brandishing a firearm would have carried a mandatory penalty of 25 years' imprisonment to run consecutively to any penalty imposed for the two bank robberies and the first charge of brandishing a firearm. See 18 U.S.C. § 924(c)(1)(C)(i), 924(c)(1)(D)(ii).
However, the government "indicated that it was willing to forego bringing the second 924(c) charge [for brandishing a firearm], if Mr. Crews pleaded guilty to the two bank robberies and one 924(c) charge. . . ." (Von Dornum Affirm. ¶ 6). In exchange for not seeking a second charge of brandishing a firearm during a bank robbery and its mandatory, consecutive penalty of 25 years' imprisonment, the government required that Crews sign a plea agreement. (Von Dornum Affirm. ¶ 6).
The agreement contained five United States Sentencing Guidelines enhancements to the offense levels of the two bank robbery counts, specifically: two enhancements because Crews took the property of a financial institution in each bank robbery; one enhancement for brandishing a firearm during the robbery of Apple Bank; one enhancement because a victim of the offense sustained permanent or life-threatening injury during the robbery of Apple Bank; and one enhancement because Crews recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer after the robbery of Apple Bank. (Von Dornum Affirm. ¶ 7; Plea Agreement dated Dec. 4, 2003, Ex. B to von Dornum Affirm.).
The enhancements yielded an adjusted combined offense level of 32 for the two bank robbery counts. Because Crews' criminal history category was I, the resulting Sentencing Guidelines range for the two counts of bank robbery was 121 to 151 months. (Plea Agreement dated Dec. 4, 2003 § A, Ex. B to von Dornum Affirm.). The seven-year mandatory consecutive sentence for brandishing a firearm during the bank robbery of Apple Bank — an additional 84 months — resulted in a stipulated sentencing guidelines range by the parties of 205 to 235 months for all three charges. (Plea Agreement dated Dec. 4, 2003 § C, Ex. B to von Dornum Affirm.).
The plea agreement contained two other provisions of particular importance to this petition. First, it provided that "neither party will seek . . . a departure or seek any adjustment" to Crews' offense level, including the sentencing enhancements. (Id.). Second, it provided that Crews "will not file a direct appeal, nor otherwise litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the stipulated Sentencing Guidelines range of 205 to 235 months' imprisonment. . . ." (Id.).
Von Dornum has submitted an affirmation under penalty of perjury that she discussed "each of [the] sections" of the plea agreement with Crews and explained to him that if he accepted the agreement, she would not be able to object to any of the sentencing enhancements. (Von Dornum Affirm. ¶¶ 10-11). Von Dornum believed that "there was no factual or legal basis to object to four of the five sentencing enhancements, but that there might be a legal basis to object to the enhancement . . . for recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." (Id. ¶ 10).
Nonetheless, the plea agreement was "strongly favorable," (id. ¶ 18), to Crews because (1) Crews had no viable defense to the potential second charge of brandishing a firearm, (id. ¶ 10), and (2) even including the two-level enhancement that von Dornum believed to be objectionable, Crews faced significantly less imprisonment pursuant to the plea agreement than he would if the government brought a second charge for brandishing a firearm. (Id.).
Specifically, Crews faced a range of 205 to 235 months pursuant to the plea agreement versus a range of 481 to 505 months in the absence of the agreement and the objectionable enhancement. (Id.). Von Dornum also informed Crews that although she could not object to any of the sentencing enhancements contained in the plea agreement, it was possible the court might sua sponte reject the two-level enhancement for recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. (Id.).
After reviewing the plea agreement and discussing it with von Dornum, Crews — according to von Dornum — told von Dornum he "wanted to enter into [the plea agreement]." (Id. ¶ 11). He subsequently waived his right to indictment and was charged in a three-count superseding information with two counts of bank robbery and one count of brandishing a firearm in relation to the robbery of Apple Bank. (Id. ¶ 12). Pursuant to the plea agreement, Crews pleaded guilty to the information before Magistrate Judge Theodore H. Katz on December 11, 2003. (Hr'g Trans. dated Dec. 11, 2003, at 7:4, 9:12-10:22, 11:20-25, Ex. D to von Dornum Affirm). During the hearing held pursuant to Rule 11 of the Federal Rules of Criminal Procedure to take his plea, he was informed again that he was waiving his right to appeal any sentence within the stipulated range of 205 to 235 months. (Id. at 9:19-10:22). Further, Crews stated under oath that he had read and understood the plea agreement and was pleading guilty of his own volition. (Id. at 9:6-18; 10:17-19). After a full colloquy, Judge Katz concluded on the record that Crews understood the consequences of his plea and had entered the plea voluntarily. (Id. at 13:7-14).
At sentencing, von Dornum raised no objection to the stipulated enhancements. (Von Dornum Affirm. ¶ 16). However, this Court sua sponte questioned the applicability of the two-level enhancement for recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. (Hr'g Trans. dated May 5, 2004 at 5:7-28:17). Although the plea agreement precluded von Dornum from lodging her own objection to the enhancement, she expressly "agre[ed] with the Court's analysis." (Id. at 16:1-4). After finding the two-level enhancement inapplicable, the Court sentenced Crews to 181 months' imprisonment — 24 months below the bottom of the range to which Crews stipulated in his plea agreement and 54 months below the top of the stipulated guidelines range. (Id. at 31:5-12).
Subsequently, Crews contacted von Dornum and stated that he wanted to appeal his sentence. (Von Dornum Affirm. ¶ 24). Von Dornum stated in her affirmation that she advised Crews that he had waived his right to appeal the sentence because it was below the stipulated guidelines range of 205 to 235 months. (Id.). Crews "indicated that he understood." (Id.). Von Dornum "believed that he did not wish [her] to file a notice of appeal" and thus did not file a notice of appeal. (Id.).
In November of 2004 Crews filed this petition pro se pursuant to 28 U.S.C. § 2255, asserting that von Dornum was ineffective and that his sentence was improper in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
II. Discussion
A waiver of the right to collaterally attack or appeal a sentence is enforceable if (1) the waiver was knowing and voluntary and (2) there is no meritorious claim of ineffective assistance of counsel with respect to the process that resulted in the waiver. See Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195-96 (2d Cir. 2002) (collateral attack); United States v. Monzon, 359 F.3d 110, 116-19 (2d Cir. 2004) (appeal).
To prevail on a claim of ineffective assistance of counsel, Crews must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 688-94, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). First, he must show that von Dornum's representation fell below an objective standard of "reasonableness under prevailing professional norms," id. at 688, and second, that there is a "reasonable probability" his sentence would have been different but for von Dornum's error, id. at 694.
"Judicial scrutiny of counsel's performance must be highly deferential." Id. at 698. The court must indulge a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" Id. With respect to ineffective assistance claims regarding the failure to file a notice of appeal, the court must "take into account all the information counsel knew or should have known." Sarroca v. United States, 250 F.3d 785, 787 (2d Cir. 2001) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 484, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)).
A. Crews Waived His Right to Collaterally Attack His Sentence
Crews' waiver of his right to collaterally attack his sentence is enforceable for two reasons. First, the record demonstrates that Crews knowingly and voluntarily waived his right to collaterally attack his sentence. The waiver provision is explicitly set forth in the plea agreement. Von Dornum explained each provision of the plea agreement to Crews; indeed, Crews makes no claim that he either did not know about or misunderstood the waiver of his right to file a section 2255 petition. In addition, at the hearing at which Crews pled guilty, Judge Katz specifically asked Crews if he had read the plea agreement and if he understood it; Crews responded that he had read the agreement and that he understood its terms. (Hr'g Trans. dated Dec. 11, 2003, at 9:12-18, Ex. D to von Dornum Affirm.).
Second, Crews does not claim ineffective assistance of counsel with respect to the process that resulted in the waiver, namely, the negotiation and explanation of the plea agreement. Nor, based upon the record, could he make such a claim. Accordingly, Crews' waiver of his right to collaterally attack his sentence is valid and enforceable.
B. Von Dornum Was Not Ineffective
Even if Crews had not validly waived his right to collaterally attack his sentence, he has not shown that von Dornum's representation was ineffective with respect to either his sentencing or his appeal.
1. Crews' Sentencing
Von Dornum asserts that she did not object to four of the five sentencing enhancements for the two bank robbery counts to which Crews pled guilty because there was no basis in law or fact for any objection. Crews certainly has not proffered any basis upon which von Dornum could have objected, and the record itself reveals no colorable ground for objection. "Failure to make a meritless argument does not amount to ineffective assistance."United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999).
As to the one sentencing enhancement for which von Dornum stated that she did perceive a basis to object — recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer — the plea agreement into which Crews voluntarily entered precluded von Dornum from objecting. Nonetheless, when this Court sua sponte questioned the applicability of the enhancement, von Dornum argued against the enhancement. (Hr'g Trans. dated May 5, 2004 at 15:3-16:4). Finally, because the Court did not apply that enhancement in determining Crews' sentence, Crews was not prejudiced in any way by the initial lack of objection from defense counsel; indeed, the plea agreement precluded von Dornum from initiating that particular discussion.
Crews urges that von Dornum should have objected to all of the sentencing enhancements because the facts upon which the enhancements were based were not submitted to a jury and proven beyond a reasonable doubt. However, Crews ignores that he stipulated to the enhancements. Accordingly, the Court concludes that von Dornum's failure to object to the sentencing enhancements was not unreasonable, and, in any event, in light of the record in this action, no prejudice resulted.
2. Crews' Appeal
Crews also asserts that von Dornum was ineffective for failing to file a notice of appeal of his sentence. However, the plea agreement provided that Crews waived his right to appeal any sentence within or below the stipulated guideline range of 205 to 235 months. That waiver is valid and enforceable because Crews read and understood the plea agreement. (Hr'g Trans. dated Dec. 11, 2003, at 19:12-18, Ex. D to von Dornum Affirm.). At Crews' plea hearing the government specifically stated that the plea agreement contained a waiver of appellate rights. (Id. at 9:19-10:22). Again, Crews does not claim that von Dornum was ineffective in negotiating the plea agreement or explaining it to him, that he was unaware of the waiver provision, or that he did not enter into the agreement voluntarily. Finally, the Court sentenced Crews to 181 months — significantly below the stipulated guidelines range — which made the waiver effective.
Crews urges that the waiver provision of his plea agreement did not apply because he did not seek to appeal the length of his sentence, but rather the manner in which his sentence was calculated. Specifically, Crews contends that his sentence should have been enhanced based upon only jury findings. This argument is baseless. Again, Crews ignores that he knowingly and voluntarily stipulated to the enhancements used to calculate his sentence. Additionally, as set forth above, Crews' waiver of appellate rights became effective upon the satisfaction of one condition; specifically, that Crews' sentence fall within or below the stipulated range, which it did.
In addition, shortly after he was sentenced, Crews contacted von Dornum to discuss a possible appeal. She again explained to him that he had waived his appellate rights, and he "indicated that he understood this [fact]." (Von Dornum Affirm. ¶ 24). Given the valid provision of the plea agreement through which Crews waived his appellate rights and the conversation that von Dornum had with Crews after his sentencing, the fact that von Dornum did not file a notice of appeal on Crews' behalf was not objectively unreasonable.
C. Booker Does Not Apply Retroactively on Collateral Review
Crews also contends that his sentence is invalid in light ofUnited States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). However, even if Crews had not waived his right to collaterally attack his sentence, he cannot claim relief pursuant to Booker because that case does not apply retroactively.Guzman v. U.S., 404 F.3d 139 (2d Cir. 2005).
III. Conclusion
The Court denies Crews' petition because he has waived his rights to collaterally attack and appeal his sentence, his counsel was not ineffective, and Booker does not apply retroactively. In addition, because Crews has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000); Soto v. United States, 185 F.3d 48, 51-53 (2d Cir. 1997). Finally, pursuant to 28 U.S.C. 1915(a)(3), the Court certifies that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
SO ORDERED.