Summary
denying § 2255 petition without a testimonial hearing based on attorney's affidavit and plea agreement's express preclusion of an appeal of a sentence below the stipulated guidelines range
Summary of this case from Moreta v. U.S.Opinion
01 Civ. 5539 (JSM), 99 CR. 1197 (JSM).
December 7, 2001.
MEMORANDUM OPINION AND ORDER
Abdulhakeem Sadiq Adama, who pleaded guilty to mail fraud and was sentenced to five months imprisonment and five months home confinement, moves pursuant to 28 U.S.C. § 2255 to vacate his conviction. He argues that his counsel was ineffective in failing to file a notice of appeal and in failing to advise him that his conviction could subject him to deportation.
Petitioner's claims are without merit. Petitioner's plea agreement provided that he waived his right to appeal or to challenge his conviction in a § 2255 proceeding if his sentence was within or below the stipulated guideline range. During his plea allocution, Petitioner acknowledged being aware of this provision. (April 24, 2000 Tr. at 8-9). Thus, his petition is barred by the clear terms of his plea agreement. See United States v. Difeaux, 163 F.3d 725, 728 (2d Cir. 1998); United States v. Salcido-Contreras, 990 F.2d 51, 52 (2d Cir. 1993).
Petitioner's contention that he received ineffective assistance of counsel because counsel did not file a notice of appeal as requested is directly contradicted by an affidavit from his prior counsel who states that no such request was made. Given the fact that the plea agreement expressly precluded an appeal because the sentence imposed was below the stipulated guideline range, there is no reason to accept Petitioner's uncorroborated statement that he asked his counsel to file a notice of appeal. See Gutierrez-Fernandez v. United States, No. 99 Civ. 4484, 2000 WL 1559945, at *4 (S.D.N.Y. Oct 18, 2000).
Finally, even if one were to accept as true Petitioner's statement that his counsel failed to advise him that his conviction might result in his deportation — which counsel denies — Petitioner would still not be entitled to have his plea vacated. As Judge Schwartz noted inGiwah v. United States, No. 96 Civ. 9232, 1997 WL 232321, at *1 (S.D.N.Y. May 07, 1997):
Federal Rule of Criminal Procedure ("F.R.Cr.P.") 11 does not require the Court to advise a defendant of the peripheral consequences of his plea, including the possibility of deportation. Michel v. United States, 507 F.2d 461, 465 (2d Cir. 1974), Polanco v. United States, 803 F. Supp. 928, 932 (S.D.N.Y. 1992).Giwah, 1997 WL 323312, at *1.
See United States v. Parrino, 212 F.2d 919, 921 (2d Cir.) (even where a defendant has been erroneously advised by counsel that his plea would not result in deportation, no "manifest injustice" within Fed.R.Crim.P. 32(d) would occur in the denial of a motion to withdraw a plea of guilty); United States v. Santelises, 476 F.2d 787, 789 (2d Cir. 1973).
For the foregoing reasons, the petition for relief pursuant to 29 U.S.C. § 2255 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915(a), the Court certifies that an appeal in this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Court determines that the petition presents no question of substance for appellate review, and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.
SO ORDERED.