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finding counsel's performance effective where petitioner received "a more lenient prison term than he could have received had he been convicted at trial" and where petitioner "allocuted that he was satisfied with his counsel's performance . . . and that he understood the terms of the plea agreement"
Summary of this case from Noble v. StateOpinion
No. 00 Cr. 387 (HB), 01 Civ. 9229 (HB).
October 17, 2002
OPINION ORDER
Shawn Owens ("Owens") pleaded guilty pursuant to a plea agreement to one count of possessing a firearm by a convicted felon, in violation of 18 U.s.c. § 922(g). Owens brings this petition pursuant to 28 U.S.C. § 2255 to vacate and set aside or correct his sentence entered on January 5, 2001, on the grounds that (1) the government never proved the gun he possessed was stolen, which was an element of the offense the government was required to prove at trial, (2) his conviction was unconstitutional because the alleged stolen nature of the gun was not charged in the indictment, and (3) his counsel was ineffective because he failed to require the government to prove that the gun was stolen. For the following reasons, the motion is DENIED and the petition is dismissed.
I. BACKGROUND
On January 3, 2000 Owens was indicted on a count of illegally possessing a firearm in violation of Title 18, U.S.C. § 922(g). Owens pled guilty on October 27, 2000 to count one pursuant to a plea agreement in which the government agreed not to further prosecute him for the other conduct described in the indictment and to dismiss any open counts. The plea agreement included, among other terms: (1) an agreed-upon offense level with sentencing guidelines range of 33 to 41 months; (2) an agreement by both parties not to seek a departure or adjustment outside of the agreed-upon Guidelines range, and; (3) a waiver by Owens of his right to appeal, or otherwise litigate under 28 U.S.C. § 2255, any sentence imposed within or below the stipulated Guidelines range. See Plea Agreement, at 2-3, 4.
On January 5, 2001, I sentenced Owens to 33 months imprisonment a three year term of supervised release and the mandatory $100.00 assessment. The open counts were dismissed. Owens did not file a notice of appeal on October 18, 2001, Owens filed the instant petition.
II. DISCUSSION
Owens asserts that his sentence should be vacated because it was enhanced on the basis that the gun was stolen, which was a fact not charged in the indictment and about which Owens claims he was not adequately apprised. Owens's argument is without merit and additionally is belied by the fact that he stipulated in the plea agreement that the gun was stolen. See Plea Agreement, at 2.
A. Owens' claims under Apprendi
In Apprendi v. New Jersey, 530 U.S. 466(2000), the Supreme Court held that, "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. However, "[t]he constitutional rule of Apprendi does not apply where the sentence imposed is not greater than the prescribed statutory maximum for the offense of conviction." Thomas v. United States, 274 F.3d 655, 664(2d Cir. 2001). Owens pleaded guilty to one count of possessing a firearm after having been previously convicted of a felony, in violation of 18 U.S.C. § 922(g). The statutory penalty for the violation is not more than ten years' imprisonment. See 18 U.S.C. § 924(a)(2). Petitioner's sentence of 33 months in prison did not exceed the statutory maximum, and Apprendi, is inapplicable. See United States v. Garcia, 240 F.3d 180, 183(2d Cir. 2001).
B. Owens' failure to appeal
Owens failed to appeal and his petition, except for his claim of ineffective assistance of counsel, is therefore procedurally barred. See United States v. Frady, 456 U.S. 152, 165(1982) (stating that a § 2255 motion may not be used as a substitute for a direct appeal); Abbamonte v. United States, 160 F.3d 922, 924(2d Cir. 1998) (noting that an issue generally cannot be presented in a § 2255 motion if it could have been raised on direct appeal, whether it was actually raised on appeal or not).
Owens's claim of ineffective assistance of counsel may survive notwithstanding his failure to raise it on appeal. See Bloomer v. United States, 162 F.3d 187, 192(2d Cir. 1998) (noting that claims of ineffective assistance in certain circumstances may be raised for the first time in § 2255 habeas petition).
C. Owens In effective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a petitioner must (1) show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) "affirmatively prove prejudice." See Strickland v.Washington, 466 U.S. 668, 687-88, 693-94(1984). In the context of a guilty plea, petitioner must show that "but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59(1985); see also United States v. Hernandez, 242 F.3d 110, 112(2d Cir. 2001).
Petitioner fails to meet either prong of the Strickland test. Owens' stipulation to his possession of a stolen firearm and his role in the offense were terms of the plea agreement from which he received significant benefit. For instance, the government agreed to a Sentencing Guidelines range of 33 to 41 months, a more lenient prison term than that he could have received had he been convicted at trial. Additionally, petitioner allocuted that he was satisfied with his counsel's performance, Plea Tr. at 8, and that he understood the terms of the plea agreement. Id. at 9. Additionally, Owens never asserts that the stipulation was inaccurate, or why his counsel's advice that he agree to and sign the plea agreement was in error.
In any event, Owens fails to show that but for his counsel's advice, there is a reasonable probability that he would have chosen to go to trial. Owens allocuted in his own words to his guilt and the nature of his crime. Id. at 13. In short, Owens fails to show that he was denied effective assistance of counsel.
D. Owens waived his right to appeal or move under § 2255
Finally, Owens' claims are barred by the provision in his plea agreement in which he waived his right to appeal including his right to appeal under § 2255. Owens' plea agreement explicitly stated that he would "neither appeal, nor otherwise litigate under Title 28, United states Code, Section 2255, any sentence within or below the stipulated Guidelines range." Plea Agreement, at 4. Owens was sentenced to 33 months' imprisonment, the lowest wrung on the guideline ladder, and consequently waived his right to appeal. At his allocution, Owens stated on the record that he had read, signed and understood the plea agreement before pleading guilty and that he had reviewed the agreement with his attorney. Plea Tr. at 9. Additionally, he specifically waived his right to appeal a sentence that was no more than 41 months. Plea Tr. 11-12. Further, it is clearly established Circuit law that such waivers are enforceable. See United States v. Pipitone, 67 F.3d 34, 39(2d Cir. 1995) (finding such waivers enforceable); United States v.Salcido-Contreras, 990 F.2d 51, 51-52(2d Cir. 1993)("[i]n no circumstances . . . may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement.").
Owens' makes a number of other claims and none of these have any basis in logic or precedent.
III. CONCLUSION
For all the foregoing reasons, the petitioner's motion to vacate and set aside or correct his sentence is DENIED and the petition is dismissed. The Clerk of the Court is instructed to close this matter and remove it from my docket along with any open motions.