Opinion
00 Civ. 7502 (JFK), 98 Cr. 834 (JFK).
April 18, 2002
Of Counsel: Donald J. Yannella, Esq., DONALD J. YANNELLA, P.C., New York, New York, For the Petitioner.
JAMES B. COMEY United States Attorney for the Southern District of New York, Of Counsel: Jonathan Etra, Assistant United States Attorney, New York, New York, For the United States of America.
OPINION and ORDER
Before the Court is Petitioner Luis Moreno's application, pursuant to 28 U.S.C. § 2255 ("§ 2255"), to vacate or set aside his conviction and sentence. On July 6, 1999, Moreno pleaded guilty to a lesser-included offense of violating 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(B). These offenses carried a mandatory minimum sentence of five years, in comparison to the ten-year sentence Moreno could have received had he opted for trial. On September 14, 1999, the Court sentenced Moreno to a term of 108 months to be followed by a term of supervised release. On October 4, 2000, Moreno, represented by new counsel, filed the instant Petition, pursuant to 28 U.S.C. § 2255 motion. Moreno claims that he was denied effective assistance of counsel when his counsel advised him to accept a plea agreement containing a stipulation that Moreno carried a firearm in connection with his offense. For the reasons stated below, the Court denies Moreno's § 2255 motion.
Background
A. Arrest and Conviction
Moreno and four of his co-conspirators were charged in Indictment S1 98 Cr. 834 (JFK), which was filed on or about July 24, 1998. Moreno was charged in Counts One, Two, and Four. Count One charged Moreno with participating in a conspiracy to distribute, and to possess with intent to distribute, 50 grams and more of the materials and substances containing a detectable amount of cocaine base, commonly known as crack, from in or about April 1998, up to and including on or about July 23, 1998, in violation of 18 U.S.C. § 812, 841(a)(1), 841(b)(1)(A) and 846.
Count Two charged Moreno, among others, with having unlawfully, intentionally, and knowingly possessed with intent to distribute, and having distributed 50 grams or more of mixtures and substances containing a detectable amount of cocaine base crack on or about April 30, 1998, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2.
Count Four charged Moreno, among others, with having unlawfully, intentionally, and knowingly possessed with intent to distribute, and having distributed 50 grams or more of mixtures and substances containing a detectable amount of cocaine base crack on or about June 9, 1998, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2.
B. The Guilty Plea
On June 24, 1999, Moreno, pursuant to a plea agreement, offered to plead guilty to a lesser included offense under Count One. This Court rejected that plea because Moreno denied that he conspired with others. Thereafter, on July 6, 1999 this Court accepted Moreno' s guilty plea to Count Two. Pursuant to the terms of the plea agreement, dated July 2, 1998, the Government permitted Moreno to plead guilty to the lesser-included offense of violating 21 U.S.C. § 841(a)(1); 841(b)(1)(B) and 18 U.S.C. § 2.
At the plea proceedings, Moreno indicated to the Court that he was never treated for mental or emotional problems or for any kind of addiction, and that he was feeling well. (Tr. 4). Furthermore, Moreno acknowledged that he had reviewed Count Two with counsel, that counsel had explained the charge to Moreno, that Moreno understood the charge, and that Moreno had told counsel everything he knew about the case. (Tr. 5).
Tr. refers to the transcript of the plea proceeding held on July 6, 1999.
When the Court asked Moreno if the plea agreement was explained to him and whether he understood it, Moreno replied affirmatively. (Tr. 10). The ourt advised Moreno that he had right to persist in his plea of not guilty, and advised Moreno of the rights he was surrendering by pleading guilty. (Tr. 5-7). After ascertaining that Moreno was not pleading guilty under duress, the Court asked Moreno if he had any questions about the consequences of his guilty plea, (Tr. 11-12), to which Moreno responded, "No, Sir." The Court then accepted Moreno's allocution that, on or about April 30, 1998, he sold 62 grams of crack, as charged in Court Two. (Tr. 13).
By pleading guilty to the lesser-included offense under Count Two, Moreno faced a mandatory minimum sentence of five years — a significant reduction from the potential mandatory minimum sentence of ten years following a conviction at trial. On September 14, 1999, this Court sentenced Moreno to a term of 108 months to be followed by a term of supervised release.
The Court's sentence of 108 months accorded with the recommendation made in the Pre-Sentence Report ("PSR"), which reflected the two-level increase in the sentencing level resulting from Moreno's stipulation in the plea agreement that he possessed a firearm in connection with his criminal conduct. Notably, Moreno made no objections to the PSR at the sentencing hearing.
Judgment was entered on September 15, 1999. Since Moreno did not file a notice of appeal, that judgment became final on September 25, 1999.
C. § 2255 Motion
Moreno now moves, pursuant to 28 U.S.C. § 2255, claiming that his conviction should be vacated because his guilty plea and conviction were obtained without the benefit of effective assistance of counsel. Moreno claims that his attorney directed him to enter into a plea agreement that required him to stipulate to a false statement of fact, specifically, the presence of a firearm during the commission of the offense. This allegedly false stipulation enhanced Moreno's United States Sentencing Guidelines level by two points, thereby excluding him from eligibility for a sentence below the statutory minimum under 18 U.S.C. § 3553(f), the safety valve provision.
Discussion
This Court finds that Moreno's § 2255 motion is timely. Second, despite the waiver clause in the plea agreement, Moreno is entitled to bring this § 2255 motion to the extent that it is based on a claim of ineffective assistance of counsel. The Court, however, rejects Moreno's claim that he was denied effective assistance of counsel. Therefore, Moreno' s § 2255 motion to vacate or set aside his sentence is denied.
A. Moreno's § 2255 Petition Is Timely
Moreno' s § 2255 is timely. The Government argues that Moreno's § 2255 motion should be dismissed because it was apparently filed with the Clerk's Office on October 4, 2000 — nearly two weeks after September 25, 1999, when the one-year period of limitation under 28 U.S.C. § 2255 ran out. On the other hand, Moreno's current lawyer, Donald Yannella, represents, in a sworn affidavit, that he originally filed the petition and three civil action cover sheets on September 13, 2000. Mr. Yannella attributes the confusion regarding the filing date to a letter dated. September 28, 2000, in which the clerk's office mistakenly directed Counsel to submit a Civil Action cover sheet. But the cover sheet had, in fact, already been submitted on September 13, 2000. Mr. Yanella's statement is supported by the time-date stamp on the face of the petition and Memorandum of Law in Support of Petitioner's Position, which reads September, 13, 2000. Because the Court credits Mr. Yanella's representations regarding the filing of Moreno' s petition and because Moreno should not be barred from bringing this petition due to any error or confusion in the Clerk's Office, Moreno's petition is timely.
B. Moreno Did Not Waive His Right to Bring a § 2255 Motion
The Government argues that Moreno is barred from bringing this petition because he waived his right to bring a § 2255 motion. In his plea agreement, Moreno explicitly waived his right to challenge, pursuant to § 2255, any sentence within the Sentencing Guidelines range of 108-135 months. Since Moreno's sentence of 108 months falls within this range, the government argues that Moreno has waived his right to bring the present petition.
The Second Circuit has not yet specifically addressed the validity of a defendant's waiver of his right to file a collateral attack under § 2255. See Moore v. United States, No. 00 Civ. 4560, 2001 WL 253432 (S.D.N, Y. Mar. 15, 2001); Ocasio v. United States, No. 99 Civ. 9045, 2000 WL 460459 (S.D.N.Y. Apr. 18, 2000); Balbuena v. United States, 104 F. Supp.2d 218, 219 (S.D.N.Y. 2000); Luna v. United States, No. 98 Civ. 7970, 1999 WL 767420 (S.D.N Y Sept. 28, 1999); Ramirez v. United States, 963 F. Supp. 329, 331 (S.D.N.Y. 1997). The Second Circuit, however, has upheld waivers of the right to direct appeal contained in plea agreements. See United States v. Dielevic, 161 F.3d 104, 106-07 (2d Cir. 1998) (holding that a defendant's knowing and voluntary waiver of his right to appeal a sentence within an agreed upon guideline range is enforceable). Even though the Second Circuit has yet to address the issue, other circuit courts have upheld the validity of § 2255 waivers in plea agreements. See United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001); DeRoo v. United States, 223 F.3d 919, 923 (8th Cir. 2000); Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000),cert. denied, 121 S.Ct. 1148 (2001); Watson v. United States, 165 F.3d 486, 488-89 (6th Cir. 1999); United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). Moreover, numerous district courts within the Second Circuit have also upheld the validity of a plea agreement waiver of the right to litigate under § 2255, relying on cases from other. circuits that have addressed the issue. See Sanders v. United States, No. 00 Civ. 5528, 2001 WL 91634 (S.D.N Y Feb. 2, 2001); Moore v. United States, 2000 WL 253432 at *10; Psihountas v. United States, No. 98 Civ. 7066, 2000 WL 739548 (S.D.N.Y. June 8, 2000); Luna v. United States, 1999 WL 767420;Gumbs v. United States, 8 F. Supp.2d 882, 883 (S.D.N.Y. 1998); United States v. Montague, 5 F. Supp.2d 205 (S.D.N.Y. 1998); Ramirez v. United States, F. Supp. at 330-32; Trulillo v. United States, No. 92 Civ. 6791, 1993 WL 227701 (S.D.N.Y. June 21, 1993). In Moore v. United States, the court held that § 2255 waivers are generally enforceable because there is no "principled means of distinguishing [a § 2255] waiver from the waiver of a right to appeal." Moore, 2000 WL 253432, at *10 (citing United States v. Wilkes, 20 F.3d at 653.). Accordingly § 2255 waivers are generally enforceable.
The inquiry, however, does not end there. The Second Circuit has suggested that a defendant's claim of "ineffective assistance of counsel in entering the plea agreement" would "cast doubt on the validity of his waiver" of the right to appeal. Dielevic, 161 F.3d at 107; see also United States v. Hernandez, No. 00-1317, 2001 WL 227863 (2d Cir. 2001);United States v. DeJesus, 219 F.3d 117, 121-23 (2d Cir. 2000), cert denied, 121 S.Ct. 502 (2000); United States v. Rosa, 123 F.3d 94, 98 (2d Cir. 1997). Accordingly, a number of district courts within this Circuit have held that a § 2255 petitioner should not be deemed to have waived the right to collaterally attack his sentence if the ground for the attack is ineffective assistance of counsel. See Balbuena, 104 F. Supp. at 220; see also Sanders, 2001 WL 91634; Ocasio, 2000 WL 460459;Luna, 1999 WL 767420; Ramirez, 963 F. Supp. at 332. Courts in other circuits have also held that a § 2255 petitioner should not be deemed to have waived the right to collaterally attack his sentence if the ground for the attack is ineffective assistance of counsel. InCockerham, the court stated: "It is altogether inconceivable to hold such a waiver enforceable when it would deprive a defendant of the "opportunity to assert his Sixth Amendment right to counsel where he had accepted the waiver in reliance on delinquent representation."' 237 F.3d at 1184 (quoting Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999)
In accordance with these cases, this Court holds that Moreno did not fully waive his right to collaterally attack his sentence pursuant to § 2255. Specifically, Moreno is not barred from bringing a § 2255 petition that is based on a claim of ineffective assistance of counsel in connection with the plea negotiations.
C. Moreno Has Not Been Denied Effective Assistance
The issue before this Court then is whether Moreno received ineffective assistance of counsel when Moreno's prior counsel advised him to admit in the plea agreement that he possessed a firearm in connection with his offense. Moreno contends that he received ineffective assistance of counsel because the stipulation resulted in a two-level increase under the Sentencing Guidelines. Moreno claims that "his attorney refused to believe, or perhaps refused to argue on [his] behalf" that he never possessed a firearm in connection with his crime. Furthermore, Moreno, who adamantly denies having ever possessed a firearm, claims that the persistent urging of counsel caused his will to be overcome and that he was therefore under duress when he entered into the plea agreement.
A defendant who seeks to attack his conviction based on ineffective assistance of counsel must (1) show that his lawyer's performance fell below "an objective standard of reasonableness" and (2) demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Strickland v. Washington, 466 U.S. 668, 687-89, 693-94 (1984); see also United States v. Finley, 245 F.3d 199, 204 (2d Cir. 2001); McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999).
Moreno' s claims do not satisfy the Strickland test. First, Moreno fails to show that his former counsel's performance fell below an objective standard of reasonableness. In determining whether counsel's performance was objectively reasonable, there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. United States v. Prince, 110 F.3d 921, 925 (2d Cir. 1997). Counsel's "strategic choices made after a thorough investigation of law and facts relevant to plausible options are virtually unchallengeable."Strickland, 466 U.S. at 690; see also United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992) (stating that decisions that fall squarely within the ambit of trial strategy, if reasonably made, cannot support an ineffective assistance of counsel claim).
Moreno's petition focuses on the fact that the inclusion of the firearm provision in plea agreement negotiated by counsel result in a two-level increase under the Sentencing Guidelines, while ignoring the fact that his counsel's efforts significantly reduced the likely sentence Moreno faced had he been convicted at trial. Counsel effectively obtained a plea agreement that enabled Moreno to plead ta a lesser-included offense and thereby avoid a sentence that likely would have exceeded the mandatory ten-year minimum sentence upon conviction at trial. Counsel also negotiated with the Government to dismiss Counts One and Four of the Indictment and to cap the drug quantity possessed by Moreno at 150 grams. As a result of these negotiations, Moreno was eligible for a sentence of less than 120 months. The benefit of counsel's efforts was realized when this Court sentenced Moreno to 108 months. If Moreno had been convicted at trial it is likely that he would have received a sentence well in excess of the ten-year mandatory minimum sentence.
In light of the strong case the Government had against Moreno, it cannot be said that counsel unreasonably advised Moreno to accept the plea agreement. The trial of Paul Williams, a member of Moreno's "drug group," demonstrates the potential strength of the government's case against Moreno. In that trial, the Government offered into evidence numerous consensual tape-recorded conversations, including a recording of Moreno negotiating with, and selling crack to, a cooperating witness.
Furthermore, three cooperating witnesses testified for the Government that the drug group, of which Moreno was a member, kept and brandished guns in the apartment in which they sold drugs. (Williams Tr. 88, 125-126, 157, 393-AO1). One of the cooperators recounted an incident in which Williams brandished a gun during a cocaine deal, while Moreno was present to assist in the deal by assuring the cooperator that the area was free of police. (Williams Tr. 393-401). These cooperators would likely have testified against Moreno had he gone to trial.
Williams Tr. refers to the trial transcript of the United States v. Paul Williams, (S) 98 Cr. 834, case.
In light of this considerable evidence pointing to the fact that firearms were present when Moreno committed his offense, it would have been very risky for Moreno to forgo the plea agreement and opt for trial. It is objectively reasonable that counsel would urge a client in these dire circumstances to cooperate with the government. Therefore, Moreno does not satisfy the first-prong of the Strickland test because counsel's performance clearly did not fall below an objective standard of reasonableness when she recommended that Moreno accept the plea agreement. Since Moreno fails to satisfy the first prong of theStrickland test, there is no need to address the secondprong of the test.
Finally, Moreno claims that duress caused him to succumb to his counsel's advice. The Court disagrees. The record Clearly indicates that the sentencing complied with Fed.R.Crim.P. 32. Counsel indicated that they had no objections to the PSR, and Moreno was afforded his right to speak and voiced no objections or complaints. (Tr. 2, 3). This Court is well-aware of Moreno's ability to speak for himself. Indeed, the Court rejected Moreno's first attempt to plead guilty to Count One on June 24, 1999 because Moreno denied that he had conspired with others. Moreno cannot not now claim that he did not have the wherewithal to deny the firearm stipulation.
Moreover, Moreno indicated at the plea that he was feeling well (Tr. 4) and that he understood the plea agreement and the consequences of pleading guilty. (Tr. 5, 10). Even after hearing these statements, which indicate that Moreno was not pleading under duress, the Court asked a series of questions to establish the fact the Moreno was not under duress. (Tr. 11-12). Therefore, this Court is not persuaded by Moreno's claim that he was under duress caused by ineffective assistance of counsel when he accepted the plea agreement.
For the foregoing reasons, this Court finds that Moreno received effective assistance of counsel when counsel advised him to accept the plea agreement. The Court rejects all Moreno's claims as insufficient to warrant § 2255 relief.
Conclusion
Moreno' s motion pursuant to § 2255 to vacate or set aside his conviction and sentence is hereby denied. This case is closed, and the Court directs the Clerk of Court to remove this case from the Court's active docket.