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stating that a court may rely on a Petitioner's "actions and on-the-record statements regarding his understanding of the waiver provision"
Summary of this case from Deloir v. U.S.Opinion
05 Civ. 3924 (KMW).
March 26, 2009
OPINION AND ORDER
Petitioner Jorge Reyes, an inmate of the Federal Correctional Institution in Fort Dix, New Jersey, brings this pro se petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his prison sentence. Petitioner asserts that (1) his sentencing level under the Guidelines was improperly calculated; and (2) he was denied effective assistance of counsel. For the reasons stated below, the petition is denied.
BACKGROUND
Petitioner was charged with involvement in a narcotics distribution organization in New York City. On November 15, 2001, Petitioner pleaded guilty to Count One of Superceding Indictment S2 97 Cr. 697, which charged Petitioner with conspiracy to distribute, and possession with intent to distribute, at least five kilograms of cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846.
During sentencing negotiations, the government initially sought a sentencing range of 210 to 262 months imprisonment. However, on April 27, 2004, following a hearing at which the parties presented evidence regarding sentencing, Petitioner entered into a sentencing agreement ("Sentencing Agreement") in which the parties stipulated to a sentencing range of 168 to 210 months. (Sentencing Agreement 2.) The Sentencing Agreement also contained a waiver provision, whereby Petitioner explicitly agreed that he would not "appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the Stipulated Sentencing Guidelines Range of 168 to 210 months." (Sentencing Agreement 3.)
On March 18, 2004, the Court held a hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), at which the prosecution and the defense introduced evidence relating to the appropriate sentence. United States v. Lohan, 945 F.2d 1214, 1216 (2d Cir. 1991).
On May 14, 2004, the Court sentenced Petitioner to 168 months imprisonment. Petitioner did not appeal his sentence. On or about April 8, 2005, Petitioner timely filed this pro se petition pursuant to 28 U.S.C. § 2255 ("Section 2255").
Because Petitioner is proceeding pro se, the Court shall construe his submissions to raise the strongest arguments suggested. Bertin v. United States, 478 F.3d 489, 491-92 (2d Cir. 2007).
DISCUSSION I. THE SECTION 2255 STANDARD
Section 2255 allows a convicted person held in federal custody to petition the sentencing court for an order vacating, setting aside, or correcting his sentence. 28 U.S.C. § 2255 (2007). Relief under Section 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
Petitioner seeks relief under Section 2255, arguing that (1) his sentencing level under the Guidelines was improperly calculated; and (2) he was denied effective assistance of counsel during pre-sentencing proceedings.
Petitioner also claims that his sentence is unconstitutional because certain facts upon which his sentence was based were not found by a jury beyond a reasonable doubt. (Pet. 3.) To the extent that Petitioner's arguments can be construed as making a claim under United States v. Booker, 543 U.S. 220 (2005), which addressed the constitutionality of the United States Sentencing Guidelines, the Second Circuit has made clear that Booker does not apply retroactively to cases on collateral review where the defendant's conviction was final as of January 12, 2005. United States v. Guzman, 404 F.3d 139, 144 (2d Cir. 2005). Petitioner pleaded guilty on November 15, 2001 and Booker therefore does not apply to Petitioner.
II. PETITIONER WAIVED HIS RIGHT TO CHALLENGE HIS SENTENCE PURSUANT TO SECTION 2255
The waiver provision contained in the Sentencing Agreement, by which Petitioner waived his right to challenge his sentence pursuant to Section 2255, forecloses Petitioner's claims of relief. A defendant's knowing and voluntary waiver of his right to bring a petition pursuant to Section 2255 is generally enforceable. Frederick v. Wardon, Lewisburg Corr. Facility, 308 F.3d 192, 195-96 (2d Cir. 2002); Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001) (per curiam). Such a waiver is unenforceable, however, where defendant was denied effective assistance of counsel in connection with the negotiation and execution of the agreement containing the waiver. United States v. Muniz, 360 F. Supp. 2d 574, 577 (S.D.N.Y. 2005) (citing United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001)).
Here, Petitioner's waiver is enforceable because the record demonstrates that (1) Petitioner's waiver was knowing and voluntary; and (2) Petitioner received effective assistance of counsel in connection with the Sentencing Agreement. See, e.g.,Muniz, 360 F. Supp. 2d at 577. Accordingly, Petitioner is precluded from challenging his sentence.
A. PETITIONER'S WAIVER WAS KNOWING AND VOLUNTARY
A defendant's waiver of his right to file a Section 2255 petition is knowing and voluntary where the defendant "fully understood the consequences of the waiver," and his decision was not "the product of actual or threatened physical harm, mental coercion overbearing the defendant's will, or the defendant's sheer inability to weigh his options rationally." United States v. Rogue, 421 F.3d 118, 122 (2d Cir. 2005) (internal quotations and citations omitted).
The record establishes that Petitioner's waiver was knowing and voluntary. First, Petitioner signed the Sentencing Agreement on May 14, 2004 and has never claimed that his signature was coerced or that he was unable to weigh his options rationally. Second, on May 14, 2004, during the sentencing hearing, the Court asked if Petitioner had read and understood the Sentencing Agreement and the waiver provision. (Sentencing Tr. 3:19 — 3:22.) Petitioner's counsel explained that he and Petitioner had reviewed the waiver, in Spanish, prior to the hearing. (Sentencing Tr. 4:2 — 4:7.) The Court then specifically asked whether Petitioner understood that by agreeing to the waiver provision, Petitioner was giving up his right to appeal the sentence if the sentence was within the range agreed to in the Sentencing Agreement. (Sentencing Tr. 4:8 — 4:11.) Petitioner's counsel affirmed that Petitioner understood the waiver's provisions, and Petitioner declined the Court's offer to review the waiver again in open court. (Sentencing Tr. 4:2 — 4:16.)
Petitioner did not claim that he did not understand the waiver when signing the Sentencing Agreement, when questioned at his sentencing hearing, or in his Section 2255 petition. In fact, Petitioner has never claimed that he did not understand the waiver provision. The Court may rely on Petitioner's actions and on-the-record statements regarding his understanding of the waiver provision. Garcia-Santos, 273 F.3d at 508; Muniz, 360 F. Supp. 2d at 577; Sharpley v. United States, 499 F. Supp. 2d 208, 210 (N.D.N.Y. 2007). Thus, the Court concludes that Petitioner's waiver of his right to file a Section 2255 petition was knowing and voluntary.
Petitioner also did not appeal his sentence, even though he was told he had the right to appeal if he believed the waiver to be unenforceable. (Sentencing Tr. 7:24 — 8:7.)
B. PETITIONER RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL IN CONNECTION WITH THE SENTENCING AGREEMENT
The Court addresses Petitioner's ineffective assistance of counsel claim within the Section 2255 waiver analysis. A defendant's waiver of his right to bring a petition pursuant to Section 2255 is unenforceable where defendant was denied effective assistance of counsel in connection with the negotiation and execution of the agreement containing the waiver. Muniz, 360 F. Supp. 2d at 577 (citing Hernandez, 242 F.3d at 113-14).
To prove that Petitioner was denied effective assistance of counsel in connection with the Sentencing Agreement, Petitioner must show that (1) his lawyer's performance fell below an "objective standard of reasonableness" under "under prevailing professional norms," and (2) he was prejudiced as a result.Strickland v. Washington, 466 U.S. 668, 688, 692 (1984); see also Kieser v. New York, 56 F.3d 16, 18 (2d Cir. 1995). The Court need not "address both components of the [Strickland] inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697.
Petitioner asserts that he was denied effective assistance of counsel because his lawyer failed to discuss the sentencing enhancements and mitigating circumstances with Petitioner and the government before the Sentencing Agreement was consummated. Petitioner's argument is unavailing.
Counsel discussed sentencing with Petitioner, advocated vigorously for a reduced sentencing range during sentencing negotiations and obtained a final Sentencing Agreement that afforded Petitioner tangible benefits. During sentencing negotiations, the government initially sought a sentencing range of 210 to 262 months based on quantity of drugs and Petitioner's admission of possession of a firearm. (Opp'n 3.) Counsel negotiated a final sentencing range of 168 to 210 months, in which (1) the government sought no sentencing enhancement based on possession of a firearm, despite Petitioner's admission; and (2) the government agreed to a full three-point reduction for acceptance of responsibility. (Sentencing Agreement 2.) In light of the benefits obtained for Petitioner by the Sentencing Agreement, Counsel's decision to waive any downward departure motions represents a reasonable strategic choice. See Strickland, 466 U.S. at 689 (affording performance of counsel a "strong presumption" of reasonableness in the context of strategic decisions); see also Miller v. United States, No. 00 Civ. 2469, 2000 WL 1050584, at *5 (S.D.N.Y. Jul. 28, 2000), aff'd, No. 00-2495, 2001 WL 1203400 (2d Cir. Oct. 11, 2001).
Counsel met with Petitioner to discuss sentencing at least once before the Setencing Agreement was finalized. Counsel met with Petitioner before the March 18, 2005 hearing at which the parties presented evidence and arguments regarding sentencing. In two letters, one dated December 16, 2003, and the other dated March 2, 2004, Counsel indicated that he discussed sentencing with Petitioner on additional occasions as well. (Pet.'s Dec. 16 Letter; Pet.'s March 2 Letter.) Petitioner does not dispute the accuracy of these letters. Accordingly, the Court rejects Petitioner's argument that Counsel did not discuss sentencing with him before the Agreement was signed.
In response to the government's proposed sentencing range of 210 to 262 months, Petitioner's counsel argued that Petitioner was entitled to mitigation, as follows: (1) a mitigating role adjustment pursuant to U.S.S.G. § 3B1.2; (2) a mitigating role cap pursuant to U.S.S.G. § 2D1.1(a)(3); and (3) a "safety valve" adjustment pursuant to U.S.S.G. 5C1.2. (Pet.'s March 2 Letter.)
Far from being ineffective, Counsel acted appropriately in negotiating and executing the Sentencing Agreement, which afforded Petitioner many tangible benefits. See Jimenez v. United States, No. 00 Civ. 7114, 2001 WL 699060, at *5 (S.D.N.Y. Jun. 20, 2001) (noting that courts have refused to find ineffective assistance of counsel where the defendant received "tangible benefits from the plea agreements negotiated by counsel") (citing Panuccio v. Kelly, 927 F.2d 106, 109 (2d Cir. 1998)). Accordingly, the Court concludes that Petitioner received effective assistance of counsel in connection with the Sentencing Agreement.
CONCLUSION
For the reasons stated above, Petitioner's Section 2255 motion is DENIED. (Docket Entry 1.) A certificate of appealability will not issue because Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c). The Clerk of Court is directed to close this case; all pending motions are moot.
SO ORDERED.