Opinion
99 Civ. 9865, S11 94 Cr. 313 (CSH).
October 10, 2000.
MEMORANDUM OPINION AND ORDER
Rafael Cruz, who pleaded guilty before this Court in December of 1995 to a narcotics conspiracy charge, has filed a pro se petition to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255 primarily on the ground of ineffective assistance of appellate counsel. For the reasons discussed below, the petition is denied.
BACKGROUND
The factual background and litigation history of Cruz's criminal case has been thoroughly documented in several opinions by this Court and the Second Circuit. Because I assume familiarity with those opinions, I will repeat the background only insofar as necessary for resolution of the present motion.
Cruz was first indicted on May 19, 1994 and charged along with two co-defendants with one count of conspiracy to distribute, and possess with intent to distribute, heroin in a case assigned to Judge Patterson of this district. Shortly thereafter, in September of 1994, Cruz was named in two counts of the 78-count indictment in this case, charging numerous members and associates of the C C narcotics organization with, inter alia, racketeering violations. Cruz was charged not with racketeering but with participating in a narcotics conspiracy with 14 members of C C and with illegal use of a firearm in connection therewith. After Cruz's indictment in this case, the government dismissed the indictment against him before Judge Patterson. In December 1994, while pre-trial motions filed by Cruz and his co-defendants were still pending, Cruz agreed to have his case severed from that of the other defendants and to be tried after the main trial which was scheduled to begin the following month.
After the main trial ended in May of 1995, Cruz was given a July 17, 1995 trial date. Shortly before his trial, however, the government moved to disqualify Cruz's counsel on the basis of a conflict of interest. The Court granted that motion on August 3, 1995 and scheduled trial with replacement counsel to begin November 6, 1995. The trial was adjourned to November 20, 1995 at the request of Cruz's counsel. Shortly before the appointed trial date, Cruz filed a motion to dismiss the indictment pursuant to the Speedy Trial Act, 18 U.S.C. § 3161, arguing primarily that the government's failure to respond to his October 1994 pre-trial motion until June 30, 1995 violated his right to a speedy trial.
The Court proceeded with jury selection while the motion was sub judice, and on November 27, 1995 just before opening statements were to begin, the parties informed the Court that they were discussing a possible plea. The Court then informed the parties that it was denying Cruz's speedy trial motion. The Court explained its reason for disclosing the outcome of the motion as follows:
I think that the defendant should be aware, in my view, at least, that if he pleads guilty and that plea of guilty is accepted, then the motion to dismiss which I have denied by this oral ruling this morning with reasons to follow is also subsumed in the plea, by which I mean there would be no option or availability of an appeal on Mr. Cruz's behalf from my order denying the motion. That, at least, is my view of what the proper approach should be, and I thought it just as well to say that to counsel as quickly as I could.
1998 WL 329271, *3 (S.D.N.Y. June 22, 1998) (quoting Tr. 204). The Court then suggested to the parties that in drawing up the plea agreement, "you might want to include the point that I have just made with respect to appeal from the denial of the defendant's motion." Id.
Cruz pleaded guilty to the narcotics conspiracy charge pursuant to a written plea agreement later that afternoon. Several months later, he moved to withdraw his plea of guilty on the grounds that he was physically and mentally incapacitated at the time of his plea, he did not understand his plea agreement, and the charges against him were legally insufficient. The Court denied the motion see United States v. Cruz, 1996 WL 376966 (S.D.N Y July 5, 1996), and sentenced Cruz on October 2, 1996 to 198 months imprisonment followed by five years of supervised release.
Cruz thereafter appealed his sentence. On appeal, he argued that this Court improperly denied his motion to withdraw his plea, erred in disqualifying Cruz's initial counsel, and erred in denying Cruz's motion to dismiss the indictment because the government violated his right to a speedy trial. The Second Circuit affirmed Cruz's conviction. Its opinion addressed only the argument concerning withdrawal of the plea, holding that the other arguments were waived by Cruz's plea agreement which contained a clause in which he "waived the right to appeal if the sentence imposed fell within the stipulated Sentencing Guidelines range" of 188 to 235 months. United States v. Cruz, No. 96-1662, slip op. at 3-4 (2d Cir. June 20, 1997) (summary order).
On a motion for rehearing, however, the Second Circuit acknowledged that evidence submitted by Cruz on rehearing admitted of the possibility that Cruz legitimately believed that his plea agreement had carved out an exception to the waiver allowing the appeal of this Court's denial of his speedy trial motion. See United States v. Cruz, 152 F.3d 921, 1998 WL 386153, *2 (2d Cir. Apr. 28, 1998) (unpublished opinion). On remand, this Court concluded after holding a hearing to explore the matter that "at the time of his plea, Cruz believed he had preserved his right to appeal." 1998 WL 329271, *8. The government thereafter withdrew its argument that Cruz waived his right to appeal the denial of his speedy trial motion and the Second Circuit considered Cruz's argument. On appeal, Cruz contended that the government intentionally delayed in moving to disqualify Cruz's original counsel and that no time should have been excluded from the speedy trial clock in consideration of that motion. The Second Circuit held that Cruz had forfeited that argument because it was not raised below, and that even if it had not been forfeited it lacked merit. United States v. Cruz, No. 96-1662, slip. op. at 4 (2d Cir. Sept. 18, 1998) (summary order).
Cruz now moves to vacate his sentence on three primary grounds, all stated in terms of the ineffective assistance of his appellate counsel. Cruz argues that his appellate counsel was constitutionally deficient in failing to argue on appeal that:
Cruz was represented by new counsel on appeal.
(1) trial counsel furnished ineffective assistance in wrongly advising Cruz that his plea agreement preserved the right to appeal the denial of his speedy trial motion;
(2) his plea was invalidated by this Court's improper involvement in the plea discussions; and
(3) trial counsel was ineffective in not making certain arguments in favor of dismissal of the indictment on speedy trial grounds.
I find all of these contentions to be without merit.
DISCUSSION
A. Ineffective Assistance Standard
Well-established standards govern consideration of claims of ineffective assistance of counsel. To prevail on such a claim, the petitioner must show (1) that counsel's conduct "fell below an objective standard of reasonableness" measured by "prevailing professional norms"; and (2) that "there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. at 668, 688, 694 (1984). In making the first assessment, attorneys are entitled to a strong presumption of competence. Id. at 689. The reasonableness of the attorney's actions must be judged to the extent possible without "the distorting effects of hindsight," id.; mere omission of a nonfrivolous argument, and actions or omissions that might be regarded as '"sound trial strategy"' do not amount to ineffective assistance. McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999) (quoting Strickland, 466 U.S. at 689). Finally,'"[i]n evaluating the prejudice component of Strickland, a court must determine whether, absent counsel's deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different."' McKee, 167 F.3d at 106 (quoting Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994)).
B. Waiver Standard
It has long been settled in this Circuit that the entry of a knowing and voluntary plea of guilty "waives [a defendant's] right to appeal all nonjurisdictional contentions." United States v. Maher, 108 F.3d 1513, 1528 (2d Cir. 1997). Substantially the only claims preserved by an unconditional guilty plea are arguments relating to "errors in the proceedings that led to the acceptance of his plea of guilty". Id. at 1528-29. A defendant who pleads guilty pursuant to a conditional plea agreement "preserves only the specifically mentioned issues and waives all other nonjurisdictional claims." United States v. Simmons, 763 F.2d 529, 533 (2d Cir. 1985). A guilty plea waives the right to challenge the conviction and sentence not only on appeal, but on collateral attack as well. See United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995); Pryor v. McCoy, No. 96 Civ. 1810, 1997 WL 436809, *1 (N.D.N.Y. July 25, 1997).
Under this authority, it cannot be doubted that Cruz's guilty plea, which this Court found was knowing and voluntary, see 1996 WL 376966, *5, waived his right to raise all nonjurisdictional issues on appeal or collateral review except perhaps his argument that this Court erred in denying his speedy trial motion. But, like any defendant, Cruz is not foreclosed from arguing that there were errors in his plea proceeding that led to the acceptance of his plea. Accordingly, I may consider on this petition the following two arguments that arguably relate to the voluntary or knowing nature of Cruz's plea.
C. Guilty Plea Arguments
1. Trial Counsel's Advice Concerning Non-Waiver
Cruz argues that appellate counsel was ineffective in not arguing on direct appeal that his plea was unknowing because trial counsel advised him that by pleading guilty he preserved his right to appeal the denial of his speedy trial motion, when in fact he had waived it. This argument is misguided. Cruz cannot show that trial counsel was constitutionally deficient in rendering this advice because the advice turned out to be effectively correct. Although the government and defense counsel later vigorously disputed whether the parties' intention was to preserve the speedy trial claim, the matter was ultimately resolved in Cruz's favor; he was allowed to raise that claim on appeal. Thus, even if trial counsel's advice was objectively unreasonable because he arguably should have known that the plea agreement did not specifically preserve Cruz's right to appeal the speedy trial issue, plaintiff suffered no cognizable prejudice because he was able to achieve precisely the appellate review he contends he was misled about.
2. Court's Involvement in Plea Process
Cruz next argues that his conviction should be vacated because this Court improperly participated in the plea discussions. As with the first argument, this argument is not foreclosed by his guilty plea because it arguably bears upon the voluntariness of his plea. Fed.R.Crim.P. 11(e)(1) prohibits the trial court from becoming involved in plea negotiations. The rule admonishes that "[t]he court shall not participate in any discussions between the parties concerning any such plea agreement." The primary concern that this provision of Rule 11(e)(1) addresses is that a defendant may be coerced into making an involuntary plea if the court, with all the power its office wields, were to involve itself in shaping the terms of the plea. See United States v. Werker, 535 F.2d 198, 201 (2d Cir. 1976). With avoidance of a coerced plea as its primary aim, the rule prohibits the trial court's participation in a substantive respect but not in a supervisory role. See Fama v. United States, 901 F.2d 1175, 1179 (2d Cir. 1990).
Cruz argues that this Court's suggestion that the parties include a provision in the plea agreement specifically waiving Cruz's appeal of the denial of his speedy trial motion violated Rule 11(e)(1) and requires vacatur of his conviction. This argument does not withstand scrutiny. Any notion that this Court's comments should be construed as improper participation in the plea discussions is belied by the fact that the very suggestion the Court made was rejected by the parties. The plea agreement that the Court accepted without reservation did not contain the provision that the Court suggested. Moreover, the Court's comment was not the sort of substantive meddling that has run into Rule 11(e)(1) problems. Unlike many of the cases in which trial judges have been found to have violated Rule 11(e)(1), this Court did not reject the plea agreement or make any mention of what it would find acceptable in terms of the length of the sentence or the nature of the charge. See, e.g.,Werker, 535 F.2d at 202 (trial judge improperly participated in plea discussions by promising specific sentence for subsequent plea of guilty); United States v. Miles, 10 F.3d 1135, 1139 (5th Cir. 1993) (court improperly participated in plea negotiations by stating that plea would be unacceptable unless the contemplated sentence were considerably more lengthy); United States v. Adams, 634 F.2d 830 (5th Cir. 1981) (trial judge improperly participated in plea discussions by expressing belief that plea agreement imposed an inadequate sentence).
This Court made its suggestion only after the defendant had signaled his willingness to plead guilty and the Court had denied his speedy trial motion. The suggestion was clearly an effort to have the parties incorporate the denial of the motion into any waiver the parties agreed to. It was not an effort, in intent or in effect, to coerce the defendant into pleading guilty or to accept less favorable terms. If anything, the provision suggested by the Court might have made Cruz less likely to plead guilty if he thought that by doing so he would waive his right to appeal the speedy trial decision. In any event, because the Court accepted the plea agreement even though it did not incorporate the suggestion, and because it did not amount to substantive involvement in the plea negotiations, I find Cruz's contention that the Court improperly inserted itself into the plea discussions to be entirely without merit.
D. Speedy Trial Arguments
Cruz also argues that appellate counsel furnished ineffective assistance by failing to argue that Cruz's trial counsel's performance was in turn deficient because he did not raise before this Court two particular arguments concerning the violation of his right to a speedy trial. As previously noted, the argument that trial counsel made to this Court was that the government's failure to respond to his October 1994 pre-trial motion until June of 1995 violated his right to a speedy trial. This Court held, in considering his motion, that it had properly excluded time on numerous occasions for reasons permitted under the Speedy Trial Act which ensured that sufficient time remained on the speedy trial clock to justify a November 20, 1995 trial date. See United States v. Cruz, 907 F. Supp. 87, 90-91 (S.D.N.Y. 1995). Accordingly, the Court held that Cruz had been brought to trial within the 70-day limit of the Act and denied the motion. Id. at 94.
On appeal, Cruz took a different tack. He argued that his statutory and constitutional rights to a speedy trial were violated not because the government delayed in responding to his pre-trial motion, but because the government improperly delayed in moving to disqualify Cruz's initial counsel. Counsel argued that in light of the inexcusable delay in making the disqualification motion no time should have been excluded because of it. As noted, the Second Circuit held that this argument was procedurally defaulted because it was not raised before this Court, and that even if it had not been defaulted it failed on the merits.
The two arguments that Cruz presents on this motion were not raised either before this Court or on appeal. In an apparent effort to avoid the prospect of procedural default, Cruz couches these arguments in terms of appellate counsel's ineffective assistance in failing to raise them. Cruz maintains that counsel should have argued that his right to a speedy trial was violated because:
(1) his speedy trial clock began to run when he was arraigned on the original indictment before Judge Patterson and did not re-start after he was arraigned on the present indictment because the two indictments charged him with the same offense; and
(2) his agreement to be tried after the main trial in this case in exchange for severance was of no effect because a defendant may not waive his rights under the Speedy Trial Act.
These arguments, whether made directly or disguised as ineffective assistance claims, have been foreclosed by Cruz's plea agreement and waiver. When a defendant pleads guilty pursuant to a conditional plea he waives the right to assert all claims on appeal or collateral review, except for "only the specifically mentioned issues". Simmons, 763 F.2d at 533. To the extent Cruz's plea was conditional therefore it preserved only his right to appeal the denial of his speedy trial motion. That is all. All other nonjurisdictional issues, including the ineffectiveness of counsel in failing to raise certain claims in that motion, were waived.
Addressing analogous circumstances, in United States v. Coffin, 76 F.3d 494, 497-98 (2d Cir. 1996), the Second Circuit held that by pleading guilty the defendant had waived his claim that trial counsel was ineffective, inter alia, by failing to preserve his right to appeal the denial of his speedy trial claim. Because this claim related to the legal assistance rendered by counsel prior to his plea, it was held waived. As the court explained:
A defendant who pleads guilty unconditionally while represented by counsel may not assert independent claims relating to events occurring prior to the entry of the guilty plea . . . . [The defendant's] claims all relate to the legal assistance provided by his initial counsel prior to the guilty plea . . . . [Defendant's] guilty plea effectively waived all ineffective assistance claims relating to events prior to the guilty plea.Id. at 497; see also Pryor v. McCoy, 1997 WL 436809, *1 ("An unconditional guilty plea also waives ineffective assistance of counsel claims except as they relate to the voluntary nature of a plea.").
Cruz's claims at bar similarly relate to the performance of his trial counsel in connection with his motion to dismiss the indictment, which was obviously made prior to the plea. In addition, these claims have nothing to do with voluntariness of the plea. As such, they are unquestionably waived by Cruz's plea agreement. Cruz cannot escape the waiver by couching his speedy trial arguments in terms of ineffectiveness of counsel. In United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998), the Second Circuit declined to consider the defendant's claim that his counsel rendered ineffective assistance at sentencing, holding that the defendant's knowing and voluntary plea waived his right to appeal the merits of his sentence. It made no difference in the court's waiver analysis that the defendant claimed ineffective assistance of counsel rather than making a direct challenge to the sentence based on the allegedly omitted arguments. The court admonished that:
[D]espite his effort to dress up his claim as a violation of the Sixth Amendment, Pepshi in reality is challenging the correctness of his sentence under the Sentencing Guidelines, and is therefore barred by the plain language of the waiver contained in his plea agreement with the government. Instead of claiming directly that the district court should have reduced his guidelines range two levels because the grouping rules of § 3D1.4 should not applied, or that he should have received only a two-level and not a three-level enhancement for his role in the offense, Pepshi claims that his attorney was ineffective for failing to make these precise arguments at sentencing . . . . If we were to allow a claim of ineffective assistance of counsel at sentencing as a means of circumventing plain language in a waiver agreement, the waiver of appeal provision would be rendered meaningless. This we decline to do.Id. (emphasis added).
This analysis resonates in the case at bar. Like the defendant in Djelevic, Cruz pleaded guilty pursuant to a plea agreement that waived his right to appeal all nonjurisdictional claims except, as it transpired, this Court's denial of his speedy trial motion which was based on an argument not presented here. Although he may have preserved the right to present that particular argument, there is no rational basis for concluding that Cruz preserved the right to take a second or third bite at the speedy trial apple by making the myriad other arguments that might have been presented for dismissal on that ground. Nor can Cruz avoid waiver by claiming that his trial counsel was ineffective in failing to raise the omitted arguments or even by adding a second layer of ineffectiveness in challenging the performance of appellate counsel. The salient question framed byDjelevic and Coffin is whether the underlying substantive claims relate to matters that either occurred prior to the plea or have nothing to do with the voluntariness of the plea. If so, they are waived regardless of whether they are made directly on the merits or through the vehicle of ineffective assistance. At their core, Cruz's arguments relate to the performance of counsel prior to his plea and unrelated to its voluntariness. Accordingly, Cruz is precluded from raising them.
Even if I were to consider them, however, Cruz's claims that his appellate counsel was ineffective for failing to raise these arguments would fail because the underlying arguments lack merit.
1. Judge Patterson Indictment
Cruz contends that because the conspiracy charged in the present indictment is identical to the one charged in the Patterson indictment, this case inherited the speedy trial clock that commenced to run when he was arraigned on the Patterson indictment. Taking into consideration the non-excluded time on the Patterson charges, Cruz argues that more than 70 non-excluded days passed before his November 20, 1995 trial date in this case, thereby violating the Speedy Trial Act.
This argument stems from a flawed premise. Cruz correctly notes that the government cannot obtain a fresh speedy trial clock by dismissing an indictment and then re-indicting the defendant for the same offense. See, e.g., United States v. Gonzales, 897 F.2d 1312, 1316 (5th Cir. 1990) ("The filing of a superseding indictment does not affect the speedy-trial clock for offenses charged in the original indictment or any offense required under double jeopardy principles to be joined with the original offenses."); cf. 18 U.S.C. § 3161 (h)(6) (no excludable delay between dismissal of original indictment and filing of superseding indictment on same charges if prosecution is not actually halted). But that is clearly not what happened here.
The Patterson indictment charged Cruz with conspiring with two individuals, Rafael Morell and Jose Pimental, to distribute heroin from 1992 to May of 1994. The present indictment charged Cruz with conspiring to distribute heroin with 14 members of the C C organization from 1987 to 1994, and with a separate firearms count. Morell and Pimental were not charged in the C C indictment and the 14 C C members were not charged in the Patterson indictment. By logical inference Cruz's position appears to be that any two charges against him of conspiracy to distribute heroin would necessarily qualify as the same offense even if, as here, the conspiracies involved agreements among different individuals on different dates. But he has provided no support for that contention. Because the major participants and the duration of the two charged conspiracies differ, it follows that the two indictments charge two distinct conspiracies and Cruz has offered no reason to conclude otherwise. Cf. United States v. Martinez, 47 F. Supp.2d 906, 909 (M.D.Tenn. 1999) ("[I]t is clear that the superseding indictment added a new charge of possession with intent to distribute approximately 300 pounds of marijuana. The new charge involved a totally different date for the commission of the crime, separate and apart from the charge involving 518 pounds of marijuana, and was not required to be joined with the original charge.") (footnote omitted); United States v. Welch, 656 F.2d 1039, 1049 (5th Cir. 1981) ("These conspiracies occurred at different times, involved different people (with the exception of Welch), and involved completely separate acts of gambling. The conspiracies charged in the two counts are not part of the same act or transaction."); United States v. Thomas, 759 F.2d 659, 667 (8th Cir. 1985) (holding that because the evidence showed two separate agreements made at different times by different people the indictment charged two different conspiracies despite the fact that there was some overlap in dates and participants).
"[T]he applicable law provides that if a different charge is filed, even if arising from the same activity, the speedy trial clock is reset". United States v. Wright, No. 95-Cr-0284, 1995 WL 560043, *2 (E.D.Pa. Sept. 19, 1995). For this reason, "an arrest on one charge does not trigger the right to a speedy trial on another charge filed after the arrest." United States v. Savage, 863 F.2d 595, 597 (8th Cir. 1988); see also Harvey v. Shillinger, 76 F.3d 1528, 1533 (10th Cir. 1996) ("Because Harvey's original convictions were vacated and conspiracy to commit kidnapping is a separate offense, the speedy trial clock for Harvey's second trial did not start to run until the first filing relating to the conspiracy charge.") (footnote and citation omitted). Accordingly, because the two indictments against Cruz charged separate offenses of conspiracy, a new speedy trial clock began to run at the time of Cruz's indictment in this case. Cruz did not inherit the speedy trial clock from the Patterson indictment for the charges at bar. His claim is therefore without merit.
2. Waiver
In support of his second argument, Cruz interprets United States v. Gambino, 59 F.3d 353 (2d Cir. 1995), as holding that a defendant can under no circumstances waive his rights under the Speedy Trial Act. Relying on this construction of Gambino, Cruz contends that his agreement to accept a trial date beyond the 70-day Speedy Trial Act limit in exchange for severance was ineffective to toll his speedy trial clock. This argument is based on a misinterpretation of Gambino. To be sure, in Gambino the Second Circuit held that "defendants generally may not elect to waive the protections of the Act." Id. at 360 (emphasis added). However, the Gambino court recognized an exception to the non-waiver rule when the defendant's conduct causes or contributes to a period of delay. Id. Thus, when a defendant "treats the protections of the Act as a game of strategy" by requesting or agreeing to delays and then making use of those delays to demand dismissal of the indictment, that behavior may amount to a valid waiver. Id.
Cruz is employing precisely that strategy here. After the parties informed this Court that the government had agreed to sever Cruz and that Cruz had agreed to await trial of his case until after conclusion of the main trial, the Court explained to Cruz at length in open court the consequences of his agreement:
THE COURT: What I need to say to you today is that, under a statute which we call the Speedy Trial Act, and which really is that — the name of the statute describes its function, its purpose — that statute sets down certain time limits within which a criminal trial must begin. And you could insist upon, each of you, your rights under the Speedy Trial Act and require that the government begin its case against you on January 9, just as it will begin its case on January 9 against the other defendants. You have the right, each of you . . . to refuse to have your case delayed but instead to have it begin on January 9, which is a date which conforms to and is obedient to the Speedy Trial Act. You have the absolute right to do that. But, if you prefer, then you may accept the advice and recommendation of your own attorneys and agree to a trial in your cases at a later date. If you agree to that, then I will make an order this morning excluding from the Speedy Trial Act calculations the time from and including today through the completion of the main trial, the date when you will be called for trial yourself. So what I need to ask each of you today is whether you are willing to do that; whether you are willing to have your trial take place at a later time than the January 9 date which is set for the main trial; whether you are willing to give up the right which the Speedy Trial Act would give to you to be tried at the earlier date, January 9, and instead consent to a trial at a later time.
* * *
THE COURT: Mr. Cruz, how about you? Do you understand what I have said to you this morning about these questions?
DEFENDANT CRUZ: Yes, sir.
* * *
THE COURT: And, Mr. Cruz, are you willing to have your case severed from the main trial and to be tried at a later time?
DEFENDANT CRUZ: Yes, sir.
Having derived the benefits of severance and having agreed, after careful explanation, to a later trial date which gave this Court a reasonable basis for excluding time under the Speedy Trial Act in the interests of justice, Cruz cannot now be heard to complain that the delay was unjustified or unlawful. In these circumstances, his waiver is valid under Gambino. Accordingly, even if trial counsel had made that argument to this Court, it would have been denied as baseless. Cf. United States v. Shetty, 130 F.3d 1324, 1330-31 (9th Cir. 1997) (defendant was not deprived of speedy trial where he stipulated to several continuances of his trial and agreed to periods of excludable time arising from the continuances but ten days before trial argued that his speedy trial rights had been violated).
E. Sentencing Claims
Cruz also raises two arguments related to his sentence. First, Cruz argues that his trial counsel furnished ineffective assistance in failing to advise him that he could move for a downward departure at the time of sentencing on the basis of his son's medical condition. Second, Cruz urges this Court to grant him a reduction in his sentence based on his post-conviction rehabilitation. Neither argument warrants relief
As a preliminary matter, because Cruz was sentenced within the range stipulated in his plea agreement he has waived the right to raise any claim related to his sentence, including a claim of ineffectiveness of his counsel in failing to move for a downward departure. See Djelevic, 161 F.3d at 107 ("emphatically" rejecting contention that plea waiver did not bar consideration of claim of ineffective assistance of sentencing counsel). Moreover, Cruz's plea agreement specifically provided that neither he nor the government would move for a departure from the stipulated guidelines range on any ground. Accordingly, both Cruz and his counsel were barred from moving for the departures which are the subject of these two arguments. Because they are foreclosed by his plea agreement, I decline to consider the merits of these claims.
Even assuming arguendo that the plea agreement did not preclude Cruz from making a post-sentencing motion for downward departure, a dubious proposition, I would nonetheless deny his present request for a downward departure because I have no authority to grant it. While the sentencing court has undeniable authority under 18 U.S.C. § 3553 (b) to depart from the applicable Guidelines range on the basis of extraordinary post-conviction rehabilitation, see, e.g., United States v. Core, 125 F.3d 74, 77 (2d Cir. 1997), neither the Guidelines nor any other statute or controlling authority permits the reduction of a sentence upon collateral review when the conviction has not been vacated or the sentence found illegal. See Bruno v. United States, No. 97 Civ. 2018, 2000 WL 1051850, *3 (S.D.N.Y. July 31, 2000) ("[A] departure based on such rehabilitative efforts has only been sanctioned where the defendant is before the court for sentencing or re-sentencing. There is nothing in the statute or in the case law to suggest that the court may depart based on such grounds once a sentence has been lawfully imposed and is no longer subject to direct appeal.").
Post-conviction rehabilitation does not provide an independent basis for relief under 28 U.S.C. § 2255. The fact that a defendant may have undergone considerable efforts to rehabilitate himself does not even arguably constitute a "constitutional error, a lack of jurisdiction in the sentencing courts or an error of law or fact that constitutes a fundamental defect which inherently results in complete miscarriage of justice," the only cognizable grounds for § 2255 relief. Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (internal quotations omitted). Thus, Cruz's request to shave time off his sentence for his accomplishments in prison, however laudable, must be denied since there is no independent basis for invalidating his conviction or sentence. See Lopez v. United States, No. 98-Civ-7969, 2000 WL 1229393, *3 (S.D.N.Y. Aug. 29, 2000) ("[f]ederal courts have typically held that post-sentencing rehabilitation, standing alone, is not a valid basis for reducing a defendant's sentence."); United States v. Dugan, 57 F. Supp.2d 1207, 1209 (D.Kan. 1999) (same).
CONCLUSION
For the foregoing reasons. I deny Cruz's petition to vacate his conviction and reduce his sentence pursuant to 28 U.S.C. § 2255.
As Cruz 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). See generally Lozada v. United States, 107 F.3d 1011, 1016 (2d Cir. 1997),overruled on other grounds by United States v. Perez, 129 F.3d 255 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this order would not be taken in good faith.Coppedge v. United States, 369 U.S. 438 (1962).
The Clerk of the Court is directed to dismiss the petition.
It is SO ORDERED.