Opinion
03 Civ. 2669 (LMM), (00 Cr. 1077 (LMM)).
October 24, 2005
MEMORANDUM AND ORDER
On June 1, 2001, the above defendant, pursuant to a written plea agreement, pleaded guilty to Count One of the indictment, charging him with conspiring to distribute crack cocaine, in violation of 21 U.S.C. §§ 846, 812, 841(a)(1) and 841(b)(1)(A). In the written plea agreement, which petitioner and his counsel signed, it was agreed that the Guidelines offense level was 27 and petitioner's criminal history category was I, so that the stipulated Guidelines sentence range was 70 to 87 months; the agreement recognized the applicability of a ten-year mandatory minimum pursuant to 21 U.S.C. § 841(b)(1)(A), but agreed to petitioner's eligibility to "safety valve" relief under 18 U.S.C. § 3553(f) so that a sentence without regard to that mandatory minimum became possible; the agreement also provided "that the defendant will neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated Guidelines range set forth above (70 to 87 months)." (Gov't Letter Mem., Sept. 2, 2005, Ex. A, at 4.)
Petitioner was sentenced on March 27, 2002, principally to 70 months of imprisonment, the lowest term available under his written plea agreement. He did not appeal, but now seeks relief under 28 U.S.C. § 2255, claiming ineffective assistance of counsel in that, assertedly, counsel did not file a notice of appeal although instructed to do so, failed to contest a sentence based on "crack cocaine" when petitioner had "cocaine base" and failed to object to drug quantity beyond what was reflected in a laboratory report produced to petitioner.
In the written plea agreement, petitioner expressly waived the right to challenge the sentence imposed, which was within the stipulated Guidelines sentence range. There is no reason put forward by petitioner why that waiver should not be enforced. Petitioner signed the agreement. Prior to accepting the plea, the Court pointed out to petitioner that, under the plea agreement he "cannot appeal from or challenge under the habeas corpus provisions any sentence within or below the stipulated guidelines range, that would be any sentence of 87 months or less." (Gov't Letter Mem., Sept. 2, 2005, Ex. B [plea transcript], at 2.) Petitioner stated under oath that he had read the plea agreement, discussed it with his counsel, and, asked whether "the agreement as written correctly state[s] your agreement with the government as you understand it?" answered "[r]ight." (Id. at 4.) Nothing in the petition casts any doubt on the knowing and voluntary nature of petitioner's waiver of the right to challenge his sentence under 28 U.S.C. § 2255.
In the circumstances of the present case, it is clear that the waiver is effective and that the petition must therefore be denied. Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001).
The Court, accordingly, does not here consider the merits. The government, however, has convincingly shown that, were the merits reached, the petition would also be denied. (See Gov't Letter Mem., Sept. 2, 2005, at 4-7.)
Writ denied and petition dismissed.
SO ORDERED.