Opinion
Nos. 02 Cr. 1359-2 (SHS), 05 Civ. 1846 (SHS).
September 12, 2005
OPINION ORDER
Introduction
Jonathan Cedeno, proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Cedeno asserts two grounds in support of his petition. He first claims that his sentence is unconstitutional in light ofBlakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). He next claims that he received ineffective assistance of counsel.
As set forth more fully below, Cedeno's petition is denied because he waived his right to collaterally attack his sentence;Blakely and Booker do not apply retroactively on collateral review; and petitioner did not receive ineffective assistance of counsel.
I. Facts
Cedeno was charged in a two-count indictment with violations of the federal narcotic laws. Specifically, Count One charged Cedeno with conspiracy to distribute and possess with intent to distribute "3,4 methylenedioxy-methamphetamine," commonly know as "ecstasy," in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846. (Indictment No. S2 Cr. 1359). Count Two charged Cedeno with attempting to distribute ecstasy and attempting to possess ecstasy with intent to distribute it, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C). (Id.).
In the course of that litigation, Cedeno's counsel filed a motion to suppress physical evidence recovered and statements made at the time of his arrest, which the Court denied. (Tr. dated Feb. 13, 2003 at 94:7-22). Thereafter, the government filed a prior felony information pursuant to 21 U.S.C. § 851, setting forth that on two prior occasions Cedeno had been convicted of a felony narcotics offense in Rhode Island, namely, possession with intent to distribute heroin and delivery of cocaine. (Prior Felony Information dated May 20, 2003). The prior felony information subjected Cedeno upon conviction to the enhanced penalty provision set forth at 21 U.S.C. § 841(b)(1)(C). That provision, in turn, establishes a 30-year maximum sentence for each of the offenses with which Cedeno was charged. 21 U.S.C. § 841(b)(1)(C) (1999).
Cedeno subsequently entered into a plea agreement with the government and pled guilty to both counts of the indictment. (Plea Agreement dated July 24, 2003, Ex. A to Govt.'s Mem. in Opp'n to Pet. of Jonathan Cedeno; Tr. dated July 28, 2003 at 20:11-21:2). The plea agreement set forth that "in light of the filing of a prior felony information pursuant to 21 U.S.C. § 851, Counts One and Two each carry a maximum sentence of thirty years' imprisonment. . . ." (Plea Agreement dated July 24, 2003 at 1, Ex. A to Govt.'s Mem. in Opp'n to Pet. of Jonathan Cedeno).
In the agreement, Cedeno also stipulated to a guideline sentencing range of between 188 and 235 months' imprisonment and agreed to waive his right to seek a downward departure or adjustment from that sentencing range. (Id. at 3). The agreement also set forth that notwithstanding the stipulated guideline range, "the sentence to be imposed upon the defendant is determined solely by the Court." (Id. at 4). Finally, Cedeno agreed that he would not "file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 . . . any sentence within or below the Stipulated Sentencing Guidelines Range of 188 to 235 months." (Id. at 4).
At Cedeno's plea allocution, the Court asked Cedeno whether he had read the plea agreement before he signed it, and he answered "Yes, I did." (Tr. dated July 28, 2003 at 15:2-4). The Court also asked Cedeno whether he fully understood the agreement before he signed it, to which he again answered, "Yes, I did." (Id. at 15:8-10). In addition, the Court asked Cedeno whether the agreement contained every understanding with respect to his plea and sentence, and he answered, "Yes." (Id. at 15:11-21).
When the Court asked Cedeno whether he understood that he had "waived [his] right to file an appeal or to collaterally attack [his] sentence," if the Court sentenced him within or below the stipulated guideline range of 188 to 235 months, Cedeno answered, "Yes, sir." (Id. at 16:1-5). Cedeno gave the identical answer when the Court asked him whether he understood that the Court had the power to impose a sentence upon him of up to 60 years. (Id. at 12:4-7). Finally, the Court asked Cedeno whether he understood that "if Mr. Warburgh [Cedeno's counsel] . . . has told you what your sentence is going to be, or even if you have an expectation as to what your sentence is going to be, they all and you could be wrong? Do you understand that?" To that question, Cedeno answered, "Yes." (Id. at 13:25-14:6).
Cedeno was sentenced principally to 188 month's imprisonment — the bottom of the guideline sentencing range to which he had stipulated. (Tr. dated Feb. 5, 2004 at 9:21-10:3). Petitioner asserts that following his sentencing, he asked his attorney, Paul E. Warburgh, Jr., to file an appeal on his behalf but that Warburgh never filed a notice of appeal because Warburgh said an appeal was not in Cedeno's best interests.
In response to Cedeno's petition, the Court directed Warburgh to "submit an affidavit . . . addressing (1) whether he advised petitioner that he would receive a sentence of not more than ten years if he pled guilty; (2) the basis for not arguing to the Court at sentencing that petitioner was entitled to treatment as a minor participant in the crime of which he was convicted; and (3) whether he consulted with petitioner about filing an appeal on petitioner's behalf, and the basis for not filing a notice of appeal on petitioner's behalf." (Order dated Aug. 10, 2005). The Court allowed petitioner time to reply. (Id.).
In Warburgh's affidavit, he swears specifically that Cedeno did not ask him to file an appeal. (Affidavit of Paul E. Warburgh, Jr. dated Aug. 25, 2005 at 2). Instead, Cedeno merely "inquired about an appeal" and Warburgh "informed him that he had waived his right to do so under the terms of the plea agreement. Additionally, there were actually no appealable issues." (Id.). Warburgh maintains that Cedeno "agreed with [him] and followed [his] advice." (Id.). Last, Warburgh sets forth that, "If petitioner had said he wanted to file an appeal, I would have done so." (Id.).
II. Discussion
A waiver of the right to collaterally attack or appeal a sentence is enforceable if (1) the waiver was knowing and voluntary and (2) there is no meritorious claim of ineffective assistance of counsel with respect to the process that resulted in the waiver. See Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195-96 (2d Cir. 2002) (collateral attack); United States v. Monzon, 359 F.3d 110, 116-19 (2d Cir. 2004) (appeal).
To prevail on a claim of ineffective assistance of counsel, Cedeno must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 688-94, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). First, he must show that his counsel's representation fell below an objective standard of "reasonableness under prevailing professional norms," id. at 688, and second, that there is a "reasonable probability" his sentence would have been different but for his counsel's error,id. at 694.
With respect to ineffective assistance claims regarding the failure to file a notice of appeal, "If counsel has consulted with the defendant [regarding an appeal], then the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal." Roe v. Flores-Ortega, 528 U.S. 470, 478, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). Throughout this analysis, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 698, 80 L.Ed.2d 674, 104 S.Ct. 2052. The court must indulge a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.
A. Petitioner Has Waived the Right to Collaterally Attack His Sentence
Cedeno first claims that his sentence violated the teachings ofBlakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). However, Cedeno waived his right to collaterally attack his sentence.
The plea agreement that Cedeno signed set forth that Cedeno was waiving his right to challenge his sentence either through an appeal or a section 2255 petition, such as this one. (Plea Agreement dated July 24, 2003 at 4). In addition, Cedeno testified under oath that he had read the plea agreement and understood its terms. (Tr. dated July 28, 2003 at 15:2-18). He also averred that he was acting of his own free will. (Id. 15:22-25). Further, he set forth that the plea agreement constituted his entire understanding of his plea and sentence. (Id. at 15:11-21). Last, the Court directly asked Cedeno whether he understood that by entering into the plea agreement, he was giving up his ability to collaterally attack his sentence; Cedeno said that he understood he was waiving that right. (Id. at 16:1-5). Accordingly, the Court concludes that Cedeno's waiver of his right to collaterally attack his sentence was knowing and voluntary.
In addition, Cedeno has not demonstrated any meritorious claim of ineffective assistance of counsel with respect to the process that resulted in the waiver. The only claim of ineffectiveness that petitioner raises in this regard is a claim that his attorney told him that he would receive a sentence of not more than ten years if he pled guilty.
This claim lacks merit, however. First, in his affidavit, Warburgh categorically denies ever telling petitioner that he would receive a sentence of 10 years or less, as follows: "I never advised petitioner that he would receive a sentence of not more than ten years if he pleaded guilty. Any claim to the contrary by petitioner is totally false." (Affidavit of Paul E. Warburgh, Jr. dated Aug. 25, 2005 at 1). Because petitioner has offered nothing apart from his own conclusory assertion to the contrary, he cannot demonstrate that Warburgh ever misled him and therefore has not met his burden of establishing that his attorney's performance fell below an objective standard of reasonableness.
In addition, petitioner cannot demonstrate prejudice because petitioner knew that he could receive a sentence far in excess of 10 years. At petitioner's plea allocution, the Court specifically asked him whether he understood that "if Mr. Warburgh . . . has told you what your sentence is going to be, or even if you have an expectation as to what your sentence is going to be, they all and you could be wrong? Do you understand that?" Cedeno answered, "Yes." (Tr. dated July 28, 2003 at 13:25-14:6). Moreover, the Court expressly informed Cedeno that it had the power to impose upon him a sentence of 60 years' imprisonment, and Cedeno stated that he understood that fact. (Id. at 12:4-7). Finally, Cedeno stipulated to a sentencing range of between 188 and 235 months — which, even at the bottom end, shows that Cedeno understood that he agreed to a sentence range that was considerably longer than 10 years. (Plea Agreement dated July 24, 2003 at 3, Ex. A to Govt.'s Mem. in Opp'n to Pet. of Jonathan Cedeno). Accordingly, Cedeno has failed to show that he has a meritorious claim of ineffective assistance of counsel with respect to the process that resulted in his waiver, and therefore he is barred from collaterally attacking his sentence through this section 2255 petition.
B. Neither Blakely Nor Booker Apply Retroactively
Even if Cedeno had not waived his right to collaterally attack his sentence, neither Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) nor Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) would be available to him because those cases were decided after Cedeno's conviction became final, see Moshier v. United States, 402 F.3d 116, 118 n. 1 (2d Cir. 2005) (per curiam), and they do not apply retroactively to section 2255 petitions, Guzman v. United States, 404 F.3d 139 (2d Cir. 2005); Carmona v. United States, 390 F.3d 200, 202-03 (2d Cir. 2004); Fuse v. United States, No. 04 Cv. 7986, 2005 WL 2173743 at *3 n. 3, n. 4 (S.D.N.Y. Sept. 7, 2005).
For purposes of section 2255 petitions, an unappealed criminal judgment becomes final when the time for filing a direct appeal expires, which in turn is 10 days after entry of judgment.See Fed.R.App.P. 4(b)(1)(A)(i), 26(a). Because the criminal judgment was entered on February 18, 2004, it became final on March 4, 2004, three months prior to the decision of the Supreme Court in Blakely.
C. Cedeno Did Not Receive Ineffective Assistance of Counsel
Petitioner claims that both Jorge Guttlein, Esq. and Paul E. Warburgh. Jr., Esq. were ineffective in representing him. Guttlein represented petitioner from December of 2002 until May of 2003, while Warburgh represented petitioner for the balance of the criminal action, which ended in May of 2004. As set forth below, petitioner cannot show that he received objectively unreasonable representation and that he suffered prejudice as a result.
1. Jorge Guttlein, Esq.
Cedeno first assets that Guttlein was ineffective for failing to inform him that Cedeno was a career offender within the meaning of the federal Sentencing Guidelines, and his career offender status would affect the calculation of his sentence. However, in his sworn affidavit Guttlien asserts that he "certainly discussed [petitioner's] criminal history category in terms of what amount of incarceration he could expect," but nonetheless petitioner "never wished to discuss a plea of guilty" and "never indicated he wished to cooperate" with the government. (Affidavit of Jorge Guttlein, Esq. dated Sept. 9, 2005 ¶¶ 7-8).
Moreover, even if Guttlein did not, petitioner was not prejudiced because he knew that he was classified as a career offender. The plea agreement expressly sets forth that fact; indeed, in the plea agreement Cedeno stipulated to his status as a career offender and also stipulated to the resulting sentencing range. (Plea Agreement dated July 24, 2003 at 2-3, Ex. A to Gov't Mem. in Opp'n to Petition of Jonathan Cedeno). As set forth above, Cedeno admitted that he read the agreement, understood its terms, and voluntarily entered into it, and the Court so found. (Tr. dated July 28, 2003 at 11-21; 20:22-21:2). Accordingly, petitioner was aware that he was a career offender and that his status as such affected the sentencing range to which he stipulated.
Petitioner next asserts that Guttlein was ineffective for insisting that petitioner "fight the case so that [Guttlein] could benefit" another client. However, petitioner fails to explain how Guttlein insisted that he "fight" the case and how petitioner's conduct was supposed to have benefited Guttlein's other client. In addition, Guttlein swears that "the government never offered [petitioner] a plea bargain, other than to plea[d] . . . guilty to the indictment or to cooperate," and that petitioner "never wished to discuss a plea of guilty" during the time that Guttlein represented him and "never indicated he wished to cooperate" with the government. (Affidavit Jorge Guttlein, Esq. dated Sept. 9, 2005 ¶¶ 7-8).
Moreover, petitioner was not prejudiced because ultimately he did not contest the charges against him; instead, he pled guilty while represented by another attorney, Warburgh, and received a sentence of 188 months — approximately one quarter of the 60-year term of imprisonment for which he was eligible. Thus, with respect to whether Guttlein insisted that petitioner contest the charges against him, petitioner has failed to establish that Guttlein acted in an objectively unreasonable manner or that petitioner was prejudiced.
2. Paul E. Warburgh, Jr., Esq.
Petitioner asserts that his next counsel, Paul E. Warburgh, Jr., rendered ineffective assistance of counsel at petitioner's plea hearing because Warburgh repeatedly told petitioner that he would receive a sentence of not more than ten years if he pled guilty. As set forth above, however, this claim fails.
Petitioner next contends that Warburgh was ineffective for failing to urge at sentencing that, as a minor participant in the offense, petitioner was entitled to a downward adjustment in the offense level used to calculate his sentencing range. However, petitioner has not set forth facts that would support the contention that he was a minor participant. In addition, Warburgh maintains that there was no basis for such an adjustment. (Affidavit of Paul E. Warburgh, Jr., Esq. dated Aug. 25, 2005 at 1). Moreover, in any event, the plea agreement that petitioner signed precluded Warburgh from seeking a downward adjustment. Thus, petitioner has failed to establish either that Warburgh acted unreasonably or that Cedeno suffered prejudice.
Cedeno also urges that Warburgh was ineffective for failing to object at the plea and at the sentencing on the ground that the indictment referred to the narcotics at issue as "3, 4 MDMA and not [as] 20,000 pills as described in the probation officer's report." (Mem. in Supp. of Pet. of Jonathan Cedeno at 18). However, Cedeno misconstrues the indictment; the term "3,4 methylenedioxy-methamphetamine" in the indictment describes the chemical compound that constitutes ecstasy and does not reference the number or weight of pills involved. Accordingly, Cedeno has failed to show that Warburgh acted in an objectively unreasonable manner for not objecting to the description of narcotics contained in the indictment.
Finally, Cedeno asserts that Warburgh was ineffective because he failed to file a notice of appeal on Cedeno's behalf. However, after petitioner requested an appeal, Warburgh consulted with him and explained to him that petitioner had waived his right to appeal and that there were no "appealable issues" in Cedeno's case. (Affidavit of Paul E. Warburgh, Jr. dated Aug. 25, 2005 at 2). Warburgh asserts that petitioner "agreed with [him] and followed [his] advice," (id.), and petitioner has not controverted that assertion. In addition, as set forth above, the waiver of appellate rights contained in the plea agreement was knowing, voluntary, and valid. Thus, Warburgh did not act in a professionally unreasonable manner in not filing a notice of appeal and Cedeno was not prejudiced since he validly waived his right to appeal.
Conclusion
Cedeno's petition is denied because he waived his right to collaterally attack his sentence; Blakely and Booker do not apply retroactively on collateral review; and he did not receive ineffective assistance of counsel.
In addition, because Cedeno has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000); Soto v. United States, 185 F.3d 48, 51-53 (2d Cir. 1997). Finally, pursuant to 28 U.S.C. 1915(a)(3), the Court certifies that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
SO ORDERED.