Opinion
04 CV 3786 (ILG).
October 27, 2004
MEMORANDUM AND ORDER
The petitioner, acting pro se, by letter in lieu of formal motion dated August 16, 2004, seeks to vacate, set aside and/or correct a sentence imposed, pursuant to 28 U.S.C. § 2255.
On April 18, 2002, Todd was charged in a seventeen count indictment which included conspiracy to commit bank robbery, ten substantive bank robberies and six firearm offenses, in violation of 18 U.S.C. §§ 371, 2113 and 924(c). The attorney who represented him at arraignment was, at Todd's request, replaced by Bobbi Sternheim, Esq., who represented him continuously thereafter.
On April 10, 2003, Todd pleaded guilty to six bank robberies and one firearm offense pursuant to a plea agreement. A plea allocution in accordance with Rule 11 Fed.R. Cr. P. was conducted which included eliciting Todd's understanding that the applicable Sentencing Guideline range was estimated to be 219-252 months based on an adjusted offense level of 31 and a criminal history category of III. Todd agreed that he would not file an appeal or otherwise challenge his conviction or sentence if the sentence imposed was not greater than imprisonment for 252 months, all of which the Court ascertained he clearly understood. The plea agreement also reflected, and Todd understood, that he would be directed to make restitution to the victim banks in the sum of approximately $349,295.
Todd was sentenced on July 22, 2003, to concurrent terms of 137 months on the six robbery counts and a consecutive term of 84 months on the firearms charge for a total of 221 months imprisonment, to be followed by five years of supervised release. A mandatory special assessment of $700 and mandatory restitution to be paid at the rate of $100 per month in the sum of $327,395 was also imposed.
His claim for relief is bottomed upon his assertion that counsel failed to heed his request that an appeal be filed challenging the sentence as it pertained to restitution, and that her failure deprived him of his right to effective assistance of counsel.
Todd knowingly and voluntarily waived his right to appeal in the event the sentence imposed was not greater than 252 months. The sentence imposed, 221 months, was plainly not, and benefitted Todd substantially. Had he elected to go to trial and been convicted, the sentence he would have faced would have been exponentially greater. His knowing and voluntary waiver of his right to appeal is enforceable. United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998). Todd makes no claim that his waiver was not knowing and voluntary. He does not claim, nor could he, that he was ineffectively assisted by counsel in entering into the plea agreement. "[D]espite his effort to dress up his claim as a violation of his Sixth Amendment right to counsel, [Todd] in reality is challenging the correctness of his sentence under the Sentencing Guidelines, and is therefore barred by the plain language of the waiver contained in his plea agreement with the government." 161 F.3d at 107. See also Latham v. United States, 164 F. Supp.2d 365 (S.D.N.Y. 2001).
Todd's application must also be dismissed because he cannot show that his counsel's representation fell below an objective standard of reasonableness and that he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668 (1984). In Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000), the Court held that the Strickland test applies to ineffective assistance of counsel claims bottomed upon an alleged failure to file a notice of appeal. In this regard, I note that in accordance withSparman v. Edwards, 154 F.3d 51 (2d Cir. 1998), Ms. Sternheim was invited to respond to Todd's allegation of her ineffective assistance in the form of live testimony, affidavits or briefs. In response to that invitation, she submitted a declaration in which, pursuant to 28 U.S.C. § 1746, under penalty of perjury, she wrote that "at no time following imposition of sentence did Todd ask me to file a notice of appeal on his behalf." See Chang v. United States, 1999 WL 439097 (E.D.N.Y. 1999) aff'd. 250 F.3d 79 (2d Cir. 2001).
For all the foregoing reasons, his petition is dismissed.
SO ORDERED.