Summary
holding prisoner could not "show that counsel's failure to file a notice of appeal was objectively unreasonable" because "the plea agreement expressly waived his right to appeal the imposed sentence"
Summary of this case from Polito v. U.S.Opinion
01-CV-7398 (ILG)
May 15, 2002
Erik Saavedra Lopez, F.C.I. Allenwood, White Deer, PA, (pro se).
AUSA Jonathan E. Davis, United States Attorney's Office, Brooklyn, NY, for Respondent.
MEMORANDUM AND ORDER
Petitioner Erik Saavedra Lopez ("Lopez" or "petitioner"), proceeding pro se, has filed a motion pursuant to 28 U.S.C. § 2255, seeking to vacate his sentence on the grounds of ineffective assistance of counsel. Specifically, Lopez argues that counsel was ineffective for failing (1) to seek a downward departure based on a diminished capacity theory, (2) to negotiate a reduced sentence based on his consent to deportation, and (3) to file a notice of appeal. The government has filed a cross-motion, seeking to dismiss the motion on the alternative grounds that Lopez had waived his right to appeal, and his claims are meritless. For the reasons that follow, the Government's cross-motion is granted and Lopez's motion is denied.
BACKGROUND
On November 17, 1999 Lopez, among others, was indicted on charges of conspiring to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. Shortly thereafter, Lopez entered into discussions with the government concerning possible plea and cooperation agreements. Lopez ultimately pled guilty pursuant to a plea agreement on February 24, 2000. The plea agreement provided that, in exchange for Lopez's plea and the waiver of certain rights, the government promised to support Lopez's requests for "safety-valve" and "minor role" adjustments at sentencing, pursuant to Sections 5C1.2 and 3B1.2 of the United States Sentencing Guidelines. (See Plea Agreement ¶ 5.) The government also promised that it would take no position on where within the applicable Guidelines range his sentence should fall, and that it would not move for an upward departure. (Id.) The plea agreement included a standard waiver of appeal clause, which stated:
[t]he defendant will not . . . file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposes a sentence within or below the range of imprisonment set forth in paragraph 2. This waiver is binding on the defendant even if the Court employs a Guidelines analysis different [than] that set forth in that paragraph.
(Id. ¶ 4.) Paragraph 2 of the plea agreement stated that the estimated Guidelines range was 108 to 135 months' imprisonment. (Id. ¶ 2.)
Before accepting his guilty plea, the Court questioned Lopez under oath to determine whether he was competent to proceed. (See Plea Hr'g Tr. at 4-6.) Lopez disclosed that he suffered from epilepsy and took several prescription drugs to control it. (Id. at 5.) Both petitioner and defense counsel represented that the epilepsy did not interfere with his ability to comprehend the proceedings, and a finding to that effect was made. (Id., at 5-6.)
Lopez confirmed that he reviewed the plea agreement with a Spanish interpreter, and that he understood it. (Id. at 12.) The Court then asked:
The Court: And you also know that you agree that you won't file an appeal challenging the validity of your plea here this morning and you won't appeal a sentence which may be imposed if the sentence is not more than 135 months. Do you understand that?
Lopez: Yes.
The Court: And you agree to that voluntarily?
Lopez: Yes.
(Id. at 13.) The Court concluded that Lopez had been fully advised of his rights, that "he knowingly and voluntarily pleaded guilty," and that there was a factual basis for his plea, and accepted his plea. (Id. at 15.)
The probation department prepared a presentence investigation report ("PSR"), which among other things, detailed Lopez's epilepsy, and stated that Lopez did not experience seizures over the past ten years as result of taking medication, but that he did experience occasional "absences of the mind." (PSR ¶ 37.) The defendant objected to those portions of the PSR which gave him a proprietary interest in the cocaine and denied him a minor role adjustment. (ID. ¶ 7 His objections were sustained.
Despite efforts by petitioner and counsel. the government did not offer Lopez a cooperation agreement, because it was unable to corroborate his facts. (See Nalven Aff. ¶¶ 2,3,-5.) Defense counsel avers that, when it became clear to Lopez that there would be no cooperation agreement, he intimated that he would assert that his "mental illness" contributed to his participation in the charged conspiracy. (Id. ¶ 6.) Counsel cautioned him that such an argument would reduce his utility in any prospective cooperation effort. (Id. ¶ 6.) Counsel also did not believe that Lopez was any more depressed than many similarly situated defendants suddenly facing the likely prospect of a significant sentence. (Id. ¶ 4.)
At sentencing, counsel did not seek a downward departure based on his client's epilepsy or willingness to agree to be deported. Lopez was sentenced to 108 months' imprisonment the bottom of the applicable Guidelines range. Judgment was entered on October 27, 2000. No appeal was filed. Instead, on or about November 1, 2001, despite his express waiver of appeal, Lopez filed this Section 2255 motion.
Because Lopez's motion raises claims of ineffective assistance of counsel, this Court extended an invitation to defense counsel to respond, pursuant to Sparman v. Edwards, 154 F.3d 51 (2d Cir. 1998). Counsel responded by affidavit, and detailed his representation of petitioner.
DISCUSSION
1. Petitioner Has Waived His Right to Appeal or Collaterally Attack His Sentence
At the outset, Lopez's Section 2255 motion must be rejected, because he knowingly and voluntarily waived his right to appeal. It is "well-settled that a defendant's knowing and voluntary waiver of his right to appeal a sentence within an agreed upon guidelines range is enforceable." United States v. Djelevic, 161 F.3d 104, 106-07 (2d Cir. 1998); accord United States v. Maher, 108 F.3d 1513, 1531 (2d Cir. 1997); United States v. Jacobson, 15 F.3d 19, 22-23 (2d Cir. 1994). "[A] defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, [may not] then appeal the merits of a sentence conforming to the agreement. Such a remedy would render the plea bargaining process and the resulting agreement meaningless." United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993). Lopez does not dispute his agreement nor does he claim that he was induced to enter into it. His after-the-fact claim of ineffective assistance will not impair the validity of his agreement. Djelevic, 161 F.3d at 107 ("If we were to allow a claim of ineffective assistance of counsel at sentencing as a means of circumventing plain language in a waiver agreement, the waiver provision would be rendered meaningless.")
II. Petitioner's Ineffective Assistance of Counsel Claims Are Meritless
Even if petitioner's claims are considered, they would be dismissed on the merits. Lopez claims that counsel failed to file a notice of appeal, despite his express direction that he do so, and that such failure violated his Sixth Amendment right to his effective assistance. To prevail on that claim, petitioner must show that his lawyer's performance "fell below an objective standard of reasonableness" and that the lawyer's deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 688, 692 (1984). This test applies in the context of counsel's failure to file a notice of appeal. Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000). However, when such a claim is made, the prejudice prong of the test is not whether the outcome of the proceedings would have been different but, rather, the test is whether, but for counsel's errors, petitioner would have appealed. Id. at 486. Lopez cannot show that counsel's assistance was ineffective under Strickland or Roe.
First, counsel's performance was not unreasonable under prevailing professional norms. In Roe, the Supreme Court explained that "all relevant factors" must be considered in evaluating counsel's conduct, such as "whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights." 528 U.S. at 476-80. Given that petitioner pled guilty, received a sentence at the bottom of the estimated Guidelines range, and the plea agreement expressly waived his right to appeal the imposed sentence, Lopez cannot show that counsel's failure to file a notice of appeal was objectively unreasonable. See, e.g., Jolaoso v. United States, 143 F. Supp.2d 306, 308 (E.D.N.Y. 2001) (holding that petitioner could not satisfy first prong of Strickland test, because he pled guilty, he received a lighter sentence than the sentence estimated in plea agreement, and he expressly waived appeal rights); Rosa v. United States, 170 F. Supp.2d 388, 408 (S.D.N.Y. 2001) (finding that "attorney was not ineffective in failing to file a notice of appeal because no appeal could be pursued under the Plea Agreement"); Castro v. United States, No. 00-CV-1191, 2000 WL 1373134, at *1 (N.D.N.Y. Sept. 19, 2000) (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.).
Second, Lopez cannot show that counsel's failure to file a notice of appeal caused him to forfeit an appeal he "otherwise would have taken," because he had already knowingly and voluntarily forfeited that right in his plea agreement. Roe, 528 U.S. at 484; Jolaoso, 142 F. Supp.2d at 309.
The Court notes that, although Lopez claims that he directed his attorney to file a notice of appeal, such assertion is specious. Lopez offers no description of proof of that conversation, such as where or when it took place, or what claims he would have raised on appeal. Moreover, the record makes clear that Lopez fully understood that, by signing the plea agreement and pleading guilty, he had waived his right to appeal a sentence that was less than 135 months. It is only now, more than one year after the entry of judgment, that Lopez seeks to challenge his sentence based on ineffective assistance of trial counsel.
Finally, the Court finds that Lopez's other claims of ineffective assistance are also without merit under Strickland. As for counsel's failure to seek a departure based on diminished capacity, the PSR stated that Lopez had not experienced epileptic seizures for the past ten years. Thus, he would have been hard pressed to show that he committed the crime while under some form of diminished mental capacity to justify a downward departure. See U.S.S.G. § 5K2.13 ("A sentence below the applicable guidelines range may be warranted if the defendant committed the offenses while suffering from a significantly reduced mental capacity"). As for counsel's failure to seek a departure based on Lopez's consent to deportation, that claim too is without merit. The facts here did not present a colorable defense to deportation, and, thus, Lopez's willingness to agree to deportation would not have justified a downward departure. See United States v. Sentamu, 212 F.3d 127, 136-37 (2d Cir. 2000) (holding that a stipulation to deportation does not justify a downward departure when petitioner has no plausible basis for contesting deportation). Lopez was therefore not prejudiced by counsel's omissions.
CONCLUSION
For the foregoing reasons, the motion is denied.
SO ORDERED.