Opinion
01 Civ. 2049 (RMB) (AJP) 99 Cr. 1228 (RMB).
April 3, 2001
REPORT AND RECOMMENDATION
To the Honorable Richard M. Berman, United States District Judge:
Pro se petitioner Arnaldo Giraldi, Jr. has petitioned, pursuant to 28 U.S.C. § 2255, to vacate his September 27, 2000 guilty plea and the October 10, 2000 judgment of conviction entered thereon, sentencing Giraldi to four months imprisonment (with credit for time served) followed by three years of supervised release and an order of restitution. (See Dkt. Nos. 24-26.)
Unless otherwise indicated, references to Dkt. Nos. are to those in 99 Cr. 1228 (RMB).
For the reasons set forth below, the Court sua sponte recommends that Giraldi's § 2255 petition be DENIED.
FACTS
On September 26, 2000, Giraldi signed an "Advice of Rights Form," acknowledging the rights he would be forgoing by pleading guilty. (9/26/00 Advice of Rights Form.) The Advice Form also acknowledged that no threats induced Giraldi to plead guilty and that he was satisfied with the representation he had received from counsel. (Id.) The next day, Giraldi appeared before Judge Berman and pled guilty. (Dkt. No. 25:9/27/00 Plea Tr.) Giraldi acknowledged signing the Advice of Rights Form and plea agreement letter. (9/27/00 Plea Tr. at 2.) Giraldi reiterated that he was fully satisfied with counsel's representation and noted that they were "[r]eally, really good attorneys." (9/27/00 Plea Tr. at 7, 10.) Judge Berman explained to Giraldi the rights he would be giving up by pleading guilty and the consequences of pleading guilty, and Giraldi acknowledged that he understood. (Id. at 7-17.) Judge Berman explained the maximum statutory sentences and the effect of the Sentencing Guidelines, and again Giraldi said that he understood. (Id. at 11-15.) Specifically, Judge Berman explained, and Giraldi said he understood, that he would receive three years of supervised release and be ordered to pay restitution. (Id. at 11-12.) Giraldi acknowledged that no one had threatened him or in any way forced him to plead guilty. (Id. at 16.) Judge Berman discussed the plea agreement letter with Giraldi. (Id. at 16-17.) Defense counsel stated that he had explained the plea agreement in detail to Giraldi. (Id. at 16.) Judge Berman specifically called Giraldi's attention to the plea agreement's waiver of the right to appeal or litigate under 28 U.S.C. § 2255 a sentence of zero to six months imprisonment:
[JUDGE BERMAN]: It also says in the plea agreement that "Mr. Giraldi will not appeal nor otherwise litigate under Title 28 section 2255 any sentence within or below the stipulated sentencing range that is set forth in the agreement," which was zero to six months. So if he is sentenced within zero to six months he agrees not to appeal.
Q. Do you understand that, Mr. Giraldi?
A. Yes.
(Id. at 17.) Specifically, the plea agreement provided:
Based upon the calculations set forth above, the defendant's stipulated Sentencing Guidelines Range is 0 to 6 months. At Guidelines level 5, the applicable fine range is $250 to $5,000.
. . . .
It is further agreed (i) that the defendant will neither appeal, nor otherwise litigate under Title 28, United States Code Section 2255, any sentence within or below the stipulated sentencing range set forth above . . . . Furthermore, it is agreed that any appeal as to the defendant's sentence that is not foreclosed by this provision will be limited to that portion of the sentencing calculation that is inconsistent with (or not addressed by) the above stipulation.
(Plea Agreement at 2-3, 4.)
At the plea hearing, the Government represented, and Giraldi admitted, that he received over $1000 of U.S. Treasury checks with the intention to use them knowing they were stolen. (9/27/00 Plea Tr. at 17-19.) Judge Berman accepted Giraldi's plea of guilty to theft of United States property. (Id. at 19.) Because Giraldi had already served approximately nine months in jail, the defense requested, and the Court agreed, to expedite sentencing. (Id. at 19-25.)
In connection with the sentencing process, defense counsel recommended to the Court, in light of Giraldi's mental health problems, "that there be supervised release of three years." (See Dkt. No. 26:10/6/00 Sentencing Tr. at 3.) When at sentencing Judge Berman informed the parties that he intended to include three years of supervised release as part of the sentence, defense counsel responded: "For the reasons that have been discussed, I think that supervision is appropriate. Mr. Giraldi intends to comply with that supervision." (Id. at 13.) Judge Berman sentenced Giraldi to four months imprisonment with credit for time already served, so that Giraldi would be immediately released, and three years of supervised release. (Id. at 14.) Judge Berman also imposed "restitution, which is mandatory, in the amount of $1,298," and noted that the had considered, inter alia, "the financial resources and prospective resources of the defendant, the financial needs and earning ability of the defendant and his dependents." (Id. at 15-16.) Judgment was entered on October 10, 2000. (Dkt. No. 24:10/10/00 Judgment.) Giraldi's § 2255 petition is postmarked February 1, 2001 and was received by the Court's pro se office on February 6, 2001. (01 Civ. 2049, Dkt. No. 2: Pet.)
According to Giraldi's petition:
I entered guilty [plea] to theft of govt. funds. What had me go to jail was the threat in the office at 755 2nd Ave. If that didn't occur I would not have gotten to jail.
(Pet. ¶ 5.) As for the grounds of his petition, Giraldi stated:
I am appealing the idea that I should had never had gotten to prison because the monies were grounds of an overpayment. Some checks were missing and some were reported cashed. I think the fine is to steep for 1289.00 and probation period of 3 years is uncalled for. I was the one that was mistreated in the SSI office not them. If the threat like they say was never on record the judge would have let me walk with a misdemeanor.
(Pet. at p. 4.) Giraldi's petition is "asking for a decrease to misdemeanor and decrease in the fines and probation." (Pet. at p. 6.)
ANALYSIS
Earlier this month, this Court upheld the validity of § 2255 waivers: "[T]his Court joins all of the other district court decisions in this Circuit, the decisions of other Circuit courts, and the unpublished Second Circuit decision, and holds that § 2255 waivers are generally enforceable." Moore v. United States, 00 Civ. 4560, 2001 WL 253432 at *10 (S.D.N.Y. Mar. 15, 2001) (Peck, M.J.). Giraldi's sentence of four months imprisonment (with credit for time served) is clearly within the zero to six months stipulated sentence range in the plea agreement, to which the § 2255 waiver applies.
In Moore, the Court noted that "a claim of ineffective assistance in connection with the plea negotiation is not waived by a § 2255 plea agreement waiver." Moore v. United States, 2001 WL 253432 at *10. Giraldi has not argued ineffective assistance of counsel, nor could he in light of his representations at his plea allocution that he had "[r]eally, really good attorneys." (9/27/00 Plea Tr. at 7; see also id. at 10; 9/26/00 Advice of Rights Form.)
The stipulated sentence range in the plea agreement referred only to the period of imprisonment and amount of the fine (Plea Agreement at 2-3), and was silent as to restitution or any period of supervised release. The plea agreement waiver does not apply to the restitution amount because Giraldi agreed not to appeal "any sentence within or above the stipulated sentencing range" (Plea Agreement at 4) and "restitution penalties are not linked in any way with the Guidelines base offense levels" stipulated to in the plea agreement. See United States v. Ready, 82 F.3d 551, 559-60 (2d Cir. 1996) (waiver of right to appeal "whatever sentence is imposed" did not effect right to appeal restitution order where there was ambiguity as to whether the word "sentence" included restitution penalty); see also, e.g., United States v. Lebow, No. 97-1434, 162 F.3d 1149 (table), 1998 WL 639260 at *1 (2d Cir. 1998) ("The plea agreement waiver provision in this case dealt with the sentencing range, but did not address restitution. Appellant did not, therefore, waive his right to appeal the restitution issues raised herein."); United States v. Zink, 107 F.3d 716, 717-18 (9th Cir. 1997); United States v. Catherine, 55 F.3d 1462, 1465 (9th Cir. 1995). In addition, because imposition of supervised release was discretionary here, see U.S. Sentencing Guidelines § 5D1.1(a)-(b), and was not specifically covered by the plea agreement, it would appear that the plea agreement's appeal and § 2255 waiver would not bar a proper challenge to imposition of a period of supervised release. Giraldi's § 2255 challenge to the restitution and supervised release terms of his sentence nevertheless fails. A § 2255 challenge is limited to claims that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. Here, Giraldi does not allege any of these grounds. Rather, he appears to be claiming that if he had not made a threat to kill a claims representative of the Social Security Administration, he would only have been charged with a misdemeanor. (Pet. at p. 4.) Giraldi agreed to plead guilty to theft of government property in return for which the Government dropped the threat charge. To the extent Giraldi is challenging the treatment of his offense as a felony rather than a misdemeanor, his guilty plea moots the challenge. See United States v. Coffin, 76 F.3d 494, 496 (2d Cir.) ("A knowing and voluntary guilty plea waives all nonjurisdictional defects in prior proceedings."), cert. denied, 517 U.S. 1147, 116 S.Ct. 1445 (1996). Moreover, "the general rule is that the writ of habeas corpus will not be allowed to do service for an appeal." Reed v. Farley, 512 U.S. 339, 364, 114 S.Ct. 2291, 2305 (1994) (quotations and alterations omitted). Any claim that Giraldi had should have been, but was not, raised on direct appeal, and therefore is procedurally defaulted for § 2255 purposes. See, e.g., United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998) ("A motion under § 2255 is not a substitute for an appeal."); Jones v. United States, 99 Civ. 5738, 2000 WL 987271 at *6 (S.D.N.Y. July 17, 2000) (Sand, D.J.) ("The failure to raise a claim on appeal is itself a default and results in procedural default in regard to Section 2255 motions."); James S. Liebman Randy Hertz, Federal Habeas Corpus Practice Procedure § 41.4 n. 5 (collecting cases) (3d ed. 1998). Finally, the Court notes that Giraldi's counsel specifically recommended imposition of three years of supervised release because of Giraldi's mental health problems. (See 10/6/00 Sentencing Tr. at 3, 13.) Giraldi did not object to his counsel's recommendation. He should not be allowed to challenge it now via § 2255.
Count 2 of the indictment charged Giraldi with attempting to kill a Social Security claims representative. (Dkt. No. 8: Indictment.) Count 2 was dismissed as part of the plea bargain process. (See Plea Agreement at 1; 10/6/00 Sentencing Tr. at 17; Judgment at 1.)
CONCLUSION
For the reasons set forth above, the Court should deny Giraldi's § 2255 petition.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Berman. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).