Opinion
00-CV-1220 (ILG).
May 5, 2000.
MEMORANDUM AND ORDER
Petitioner Andres Acero ("Acero"), proceeding pro se sent a letter to the Court dated February 18, 2000, claiming ineffective assistance of counsel and that the government had breached a promise in his plea agreement. The Court construed the letter as a request for habeas corpus relief pursuant to 28 U.S.C. § 2255. Having reviewed the submissions of Acero and the government, the Court concludes that petitioner's claim is without merit and the petition is dismissed.
BACKGROUND
In March 1997, Acero was arrested and charged with violating Title 18 U.S.C. § 1203 (Hostage Taking). He pled guilty to a one-count information under the terms of a cooperation agreement (the "Agreement") on July 22, 1997. At the time of the plea, Acero was serving a term of lifetime parole for a prior murder conviction. Thus, in paragraph 11 of the Agreement the government promised that:
If the Office determines that the defendant has cooperated fully, provided substantial assistance to law enforcement authorities and otherwise complied with the terms of this agreement, the Office will advise the Division of Parole for the State of New York of the nature and extent of the defendant's cooperation, it being understood that the Office will make no recommendation to that agency concerning the status of the defendant's parole.
Gov. Ex. A.
After Acero's cooperation was completed, the government filed a motion before this Court pursuant to Section 5K1.1 of the sentencing guidelines. Gov. Ex. B. At sentencing on February 17, 1999, the Court granted that motion and downwardly departed from Acero's adjusted guidelines range, which was 97-121 months, and imposed a 55-month period of incarceration.
In December 1999, the government provided the Parole Board with a letter detailing Acero's cooperation, but which did not contain any specific proposal. Soon after, petitioner sent a letter to the government, claiming that he was entitled to a recommendation of leniency. Gov. Ex. E.
On February 18, 2000, petitioner sent a letter to the Court, claiming that the government had breached the Agreement by failing to make a specific sentencing recommendation to the Parole Board. Petitioner did not raise this claim on direct appeal, but his claim is not barred by that fact. If a breach of the Agreement did occur due to a failure of the government to make a recommendation to the Parole Board, petitioner would not have known about it until well after the time period for filing a notice of appeal had lapsed. See Federal Rules of Appellate Procedure 4 (b)(1) (notice of appeal must be filed within 10 days). Thus the Court does have jurisdiction to hear this case.
DISCUSSION
The government must honor the promises it makes in plea agreements.See Santobello v. United States, 404 U.S. 257, 262 (1971) ("when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled"); United States v. Pelletier, 898 F.2d 297, 302 (2d Cir. 1990) ("due process requires that the government adhere to the terms of any plea bargain or immunity agreement it makes"). To determine whether an agreement was breached, the Court should "look to the reasonable understanding of the parties . . . and resolve any ambiguities against the government." United States v. Rodgers, 101 F.3d 247, 253 (2d Cir. 1996) (citing United States v. Feigenbaum, 962 F.2d 230, 234 (2d Cir. 1992) and United States v. Carbone, 739 F.2d 45, 46 (2d Cir. 1984)).
In the present case, the government promised to make the "nature and extent" of Acero's cooperation known to the Parole Board. The Agreement stated that the government would "make no recommendation to that agency concerning the status of the defendant's parole." In accordance with that promise, the government provided a letter on December 20, 1999 that described the extent of Acero's cooperation and the results therefrom. The letter concluded:
Obviously, Acero's cooperation benefitted the government — a fact that the federal judge assigned to Acero's criminal case, the Honorable I. Leo Glasser, already took into account in deciding to sentence Acero more leniently than was required by the United States Sentencing Guidelines. With this letter, we are not making a specific request that the Parole Division show an additional measure of leniency to Acero. We merely provide this information to you for your consideration in determining the appropriate disposition of Acero's parole violation.
Acero argues that this paragraph is a breach of the Agreement. According to Acero, the letter suggests that no further leniency is warranted because this Court has already taken his cooperation into consideration. This argument is not persuasive.
In his letter of February 18, 2000, Acero asserts that Mr. Flood, the Parole Revocation Officer in charge of his case, supports his claim that the government's letter did not result in any leniency before the Parole Board. Acero wrote:
Mr. Flood has stated that based on a lack of recommendation he is prompted to recommend a 8 to 10 year violation. And with a recommendation he would recommend 5 years.
Acero submits no evidence to support this claim and Mr. Flood himself provided a different version of events when he wrote to AUSA Jim Walden on April 21, 2000. Mr. Flood indicated that his initial recommendation was "at least ten (10) years," and went on to write:
After review of the material and the Final Violation Hearing on 3/3/2000, I did revise my original position downward and made a recommendation for a seven (7) year return to state prison. Your letter of 12/20/99 and the "Cooperation Agreement" were taken into consideration by myself, as well as Mr. ACERO's offense history."
In any event, Acero did not bargain for a specific recommendation of leniency.
At his pleading before this Court, Acero acknowledged, under oath, that he had carefully reviewed the plea agreement with counsel and declined to have the Court review the Agreement with him. Gov. Ex. F at 10. The Court nevertheless did review several components of the Agreement with Acero who, through his answers, clearly indicated he had read and understood the agreement. The Court also had the following exchange with counsel:
During his pleading, in response to a question from the Court regarding the Statute of Limitations, Acero responded "Statute of Limitations is basically the time period in which the government in this case could take action in regards to something". Gov. Ex. F. at 12
The Court: Mr. Baum, you have gone over this agreement carefully with Mr. Acero?"
Mr. Baum: Yes I have your honor."
The Court: Any question in your mind about his understanding of it?"
Mr. Baum: No.
Gov. Ex. F at 13. Petitioner has provided no support for his assertion that he believed the government promised to make a specific recommendation for leniency.
CONCLUSION
For the foregoing reasons, petitioner's motion is denied.
SO ORDERED.