Opinion
05 Civ. 4977 (LAK), (03 Crim. 0854 (LAK)).
October 7, 2005
ORDER
Petitioner was convicted on his plea of guilty to violation of 21 U.S.C. §§ 841(b)(1)(A) and 846 and sentenced principally to a term of imprisonment of 70 months. He now moves pursuant to 28 U.S.C. § 2255 to vacate set aside, or correct his sentence and for the appointment of counsel and leave to proceed in forma pauperis. He argues that counsel was ineffective in that he failed to file a notice of appeal challenging the denial of his oral downward departure motion or to seek a role adjustment under USSG § 3B1.1 as requested and that he never was informed as to why he was sentenced as allegedly required by Fed.R.Crim.P. 32(c).
Presumably, movant meant to refer to 18 U.S.C. § 3553(c).
To establish ineffective assistance of counsel, one must demonstrate both that counsel's actions fell below the constitutionally required minimum level of performance and prejudice. Strickland v. Washington, 466 U.S. 668 (1984). Strickland is fatal to the ineffective assistance claims.
To begin with, there was no downward departure application, oral or otherwise. Tr., May 21, 2004, passim. In consequence, there was no denial from which to appeal.
Second, movant pled guilty pursuant to a plea agreement in which he stipulated that the Sentencing Guidelines Range was 70 to 87 months imprisonment, agreed that no departure from that range was warranted and that he would not seek such a departure "or . . . any adjustment not set forth" therein, and waived an right to appeal from or contest any sentence within the stipulated guideline range. The agreement was translated for him and he testified that he had read it. Tr., Nov. 24, 2003, at 5-6. He stated at the hearing that he understood that he would have no right to challenge any sentence of 87 months of imprisonment or less. Id. at 12-14. Given the plea agreement, any failure by counsel to seek a role adjustment (for which no provision was made in the plea agreement) or to appeal from the judgment in any respect would not have been a departure from the requisite standard of performance and in any case could not have prejudiced movant because any appeal or role adjustment application would have been doomed.
Even assuming that this issue otherwise properly might be raised on a Section 2255 motion, the claim that movant was not told why he was sentenced in alleged violation of Rule 32(c) (or 18 U.S.C. § 3553(c)) is baseless. First, movant in the plea agreement waived any right to raise such a claim. Second, the Court's statement in open court that it had adopted the presentence report that recommended the sentence that was imposed (Tr., May 21, 2004, at 3) was a sufficient statement of reasons. In any case, the Court now makes clear that the sentence was an appropriate one because it views the stipulated guideline range in this case to have been reasonable and saw no need to impose a sentence higher than the bottom of the range.
Accordingly, the motions are denied. A certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3).
SO ORDERED.