Opinion
99 Civ. 12282 (SWK)
November 14, 2001
MEMORANDUM OPINION AND ORDER
Petitioner pro se Roger Almeida ("Almeida") moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. For the reasons set forth below, Almeida's motion is denied.
BACKGROUND
Almeida was charged in a two count Indictment in the Southern District of New York with criminal conduct involving food stamp coupons. Count One charged Almeida with unlawfully accepting food stamp coupons from customers making wholesale purchases, in violation of 7 U.S.C. § 2024 (b) and 18 U.S.C. § 2. Count Two charged Almeida with unlawfully accepting food stamp coupons from customers and unlawfully presenting the coupons for redemption, in violation of 7 U.S.C. § 2024 (b) and 18 U.S.C. § 2. On June 17, 1998, Almeida pled guilty to Count Two of the Indictment. On December 8, 1998, Almeida was sentenced to a period of 18 months of custody, 3 years of supervised release and $700,000 in restitution.
Almeida now moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence alleging an unknowing and involuntary plea and ineffective assistance of counsel. Additionally, in the alternative, Almeida requests an evidentiary hearing.
DISCUSSION
I. Involuntary and Unknowing Plea
Almeida claims that his plea was involuntary and unknowing because his "plea allocution does not in any way demonstrate that [he] was not pleading to the charge as enumerated in Count One." Petitioner's Answer to the Government's Memorandum ("Pet.'s Answer") at 3. A defendant's statements made under oath at his plea allocution "carry a strong presumption of verity," Adames v. United States, 171 F.3d 728, 732 (2d Cir. 1999), and are generally conclusive absent a credible reason "justifying departure from their apparent truth." United States v. Gonzalez, 970 F.2d 1095, 1101 (2d Cir. 1992); see also United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997) (holding that a defendant's later self-serving statements which contradict his unequivocal allocution testimony do not satisfy his burden to "raise a significant question about the voluntariness" of his plea).
Specifically, Almeida alleges, inter alia, that he had an understanding with the Government which limited restitution to $130,000, and that he mistakenly believed he was pleading to Count One and not Count Two of the Indictment. See Pet.'s Answer at 2-3. Almeida, however, has failed to provide any evidence to support his claim of a purported agreement with the Government. Moreover, during the plea allocution, Almeida responded "yes" to the Court's inquiries of whether he had discussed with his attorney the specific charges to which he was pleading guilty and whether he understood each charge in the Indictment. See Transcript of Hearing, held on June 17, 1998, at 9. The Court finds that Almeida has failed to sustain his claim of an unknowing and involuntary guilty plea. Accordingly, Almeida's claim of an involuntary and unknowing plea is denied.
II. Ineffective Assistance of Counsel
Almeida claims that he was denied effective assistance of counsel because his counsel advised him to plead guilty to a higher restitution amount than he believes is warranted. See Pet.'s Answer at 4. Almeida contends, inter alia, that his counsel miscalculated the overall success of his business when he advised him to accept the $700,000 restitution amount. Id. at 3.
Almeida also alleges that his counsel failed to appeal the restitution amount pursuant to his request. See Pet.'s Answer at 1. As the plea agreement expressly barred his counsel from appealing the restitution order, his counsel's failure to file an appeal cannot be considered unreasonable.
To demonstrate ineffective assistance of counsel, Almeida must establish that his counsel's representation "fell below an objective standard of reasonableness" under "prevailing professional norms," and that he was prejudiced by counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 686-88 (1984) ("Strickland"). Strickland applies in the context of guilty pleas. United States v. Coffin, 76 F.3d 494, 498 (2d Cir. 1996) (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985)). Almeida, however, has failed to furnish any evidence to substantiate any of his present allegations. The Court therefore finds that Almeida has failed to sustain his burden under Strickland. Accordingly, Almeida's claim of ineffective assistance of counsel is denied.
III. Evidentiary Hearing
Almeida also requests the scheduling of an evidentiary hearing. 28 U.S.C. § 2255 provides that a court shall hold an evidentiary hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. Pursuant to this statute, a district court may rely on its own familiarity with the case and deny the motion without a hearing if the court concludes that the claim "lack[s] . . . any truly meritorious allegation." United States v. Aiello, 900 F.2d 528, 534 (2d Cir. 1990). Because it is plain that Almeida's allegations lack any merit, a hearing is not necessary to decide the motion. Accordingly, Almeida's request for an evidentiary hearing is denied.
CONCLUSION
For the reasons set forth above, Almeida's motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence is denied.
SO ORDERED.