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dismissing petitioner's ineffective assistance of counsel claim as untimely where the petition was not filed until two and a half years after the conviction became final
Summary of this case from Calderon v. U.S.Opinion
00 Civ. 7491 (JFK)
August 15, 2001
MEMORANDUM OPINION AND ORDER
Before the Court is the Petition of Kenny Feliz ("Feliz"), pursuant to 28 U.S.C. § 2255 ("§ 2255"), to vacate, set aside or correct his sentence. For the reasons outlined below, the Petitioner's motion is denied.
BACKGROUND
On January 20, 1995, Feliz pled guilty before Judge Allen Schwartz of this court to two counts of conspiracy to violate the federal narcotics laws, (possession with the intent to distribute (1) one kilogram and more of heroin and (2) five kilograms and more of cocaine in violation of 21 U.S.C. § 846), and one count of making false statements to an Assistant United States Attorney in violation of 18 U.S.C. § 1001. As a result of a cooperation agreement between Feliz and the government, Feliz was permitted to remain free on bail while he assisted law enforcement officials conducting ongoing investigations. Feliz continued to commit crimes while on bail, however. In March 1997 Feliz was arrested for possession of a cloned phone. In May of 1997 Feliz was arrested for theft of property; later that month he was arrested again for possession of cocaine. Because Feliz's continued criminal conduct violated his cooperation agreement, his bail was revoked.
Under the Sentencing Guidelines, Feliz' offense level was 33, with a criminal history category of I. He faced a range of 135 to 168 months of imprisonment.
The case was reassigned to me because of Judge Schwartz's illness. Prior to sentencing, the Government submitted a letter, pursuant to Section 5K1.1 of the Sentencing Guidelines, informing the Court of the substantial assistance provided by Feliz. On September 23, 1997, in light of the government's recommendations, this Court downwardly departed from the guidelines and sentenced Feliz to 8 years imprisonment and 5 years supervised release, a sentence which fell below the ten- year mandatory minimum proscribed by 21 U.S.C. § 841 (b)(1)(A). Feliz appealed his conviction on September 30, 1997, and the appeal was dismissed on December 30, 1997 for failure to comply with the court's scheduling order.
Feliz submitted the present § 2255 petition to the Court almost Uiree years later, on September 21, 2000, requesting that the court vacate his conviction and sentence. Feliz argues that his sentence was unconstitutionally increased due to an inaccurate allocation of the weight and amount of drugs involved. He also maintains that his Sixth Amendment right to effective assistance of counsel was violated when his counsel (a) urged him to sign a plea agreement using "threats and intimidation", (b) did not object to allegedly erroneous drug weights and amounts in the information and plea agreement, and (c) failed to advise Feliz of his sentencing and appellate rights. The Court will consider each of the Petitioner's arguments in turn.
DISCUSSION I. Petitioner's Apprendi Claim
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum penalty must be submitted to a jury and proved beyond a reasonable doubt." 530 U.S. at 476. Relying on Apprendi, Feliz argues that this Court unconstitutionally enhanced his sentence after finding that he was guilty of erroneously high drug amounts and weights. This claim has no merit, however.
First of all, although Feliz maintains his sentence was based solely on the government's Pre-Sentence Investigation Report, Feliz stipulated in his plea agreement to possession of the specific drug quantities alleged in the information. In light of that stipulation, Feliz's Apprendi claim is baseless. In United States v. Champion, 2000 WL 1800260, at *3 (2d Cir. Dec. 8, 2000), the Second Circuit held that Apprendi concerns were not implicated where the defendant had stipulated to the amount of drugs at issue, since, had the issue been placed before the jury, that jury would have been bound by the stipulation. See id. (noting further that a defendant who pleads guilty to the specified drug amounts is in a similar position); see also Valdez v. United States, 00 Civ. 9105 (DC), 2001 WL 29998 at *1-2 (S.D.N.Y. Jan. 8, 2001) (holding that defendant who stipulated to drug quantity in his plea agreement had no claim underApprendi); Lendof v. United States, 00 Civ 4312 (SAS), 2001 WL 327155 at *9 (S.D.N.Y. Apr. 4, 2001) (same). There is nothing in the record to suggest that Feliz' plea was involuntarily or unknowingly made. Since he failed to object to either the drug quantity calculation or to the guideline range calculation prior to sentencing, Feliz cannot now claim that the Judge improperly sentenced him on the basis of the drug quantities specified in the information and his plea agreement. See Ming v. United States, 99 Civ. 3873 (JG), 2001 WL 91621 at *3-4 (E.D.N.Y. Jan. 18, 2001) (rejecting Apprendi claim because defendant failed to object to the drug quantity calculation at sentencing).
Furthefmore, Feliz's guilty plea is the functional equivalent of a guilty verdict on all the charges. "A plea of guilty is more than a confession admitting that the accused did various acts, 'it is itself a conviction.'" United States v. Norris, 143 F. Supp.2d 243, 247 (E.D.N.Y. 2001), quoting Kercheval v. United States, 274 U.S. 220, 223 (1927). InNorris, where the defendant neither pleaded to nor admitted facts which the government maintained justified a sentence enhancement, the court refused to enhance his sentence based upon those facts. See id. Feliz, unlike the defendant in Norris was convicted on counts which specified the amount of drugs which he allegedly possessed. Since his sentence was based on that conviction, Apprendi simply does not apply in this case.
In addition, the Second Circuit has recently held that Apprendi does not apply where, as here, the defendant is sentenced to lass than the statutory maximum. See United States v. Garcia, 240 F.3d 180, 183-84 (2d Cir. Feb. 20 2001) (holding that "a guideline factor, unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum, may be determined by a sentencing judge and need not be submitted to a jury); see also Valdez v. United States, 2001 WL 29998 at *1; Lendof v. United States, 2001 WL 327155 at *9 Under the Sentencing Guidelines, Feliz faced a maximum of 168 months (fourteen years) in prison; he was sentenced to eight years, a sentence which was two years less than the statutory minimum and over three years less than the applicable Guideline range; clearly he was not deprived of the constitutional rights the ruling in Apprendi sought to protect. Consequently, Petitioner'sApprendi claim must be rejected.
II. Petitioner's Ineffective Assistance of Counsel Claim
Feliz also claims that his Sixth amendment right to effective counsel was violated when attorney Steven Frankel ("Frankel"), (a) allegedly urged Feliz to sign a plea agreement using "threats and intimidation", and (b) did not object to allegedly erroneous drug weights and amounts found in the indictment and plea agreement. Feliz also alleges that his sentencing attorney, John H. Wilson ("Wilson") failed to advise Feliz of his sentencing and appellate rights. As a threshold matter, Feliz' motion must be denied since it was not filed within the one year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA") for § 2255 motions filed after April 24, 1996. See 28 U.S.C.A § 2244. Feliz pled guilty on January 20, 1995 and was sentenced on September 23, 1997. The applicable limitations period commenced on December 12, 1997, the date Feliz' conviction became final after his appeal was dismissed. Feliz didn't file the instant petition until September, 2000, over two and a half years later; clearly his Petition is untimely under AEDPA. See 28 U.S.C. § 2255.
In this case, since Petitioner's Apprendi claim has no validity and since Feliz neither alleges that any new facts arose after the imposition of judgment, nor claims there were government- imposed impediments to filing this Motion, the limitations period commenced on December 12, 1997, the date on which the judgment of conviction became final. See 28 U.S.C. § 2255.
Even if Feliz's claim weren't untimely it would fail on the merits. To prevail on an ineffective assistance of counsel claim, Feliz must first show his counsel's representation fell below an "objective standard of reasonableness" under "prevailing professional norms." Strickland v. Washington, 466 U.S. 668, 687- 88 (1984). Then, Feliz must "affirmatively prove prejudice [showing] a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Further, when applying this standard to guilty pleas, the Supreme Court has explained that to prove the necessary prejudice the defendant must show that, "but for the counsel's errors, he would not have pled guilty and would have insisted on going to trial."Hill v. Lockhart, 474 U.S. 52, 59 (1985). Feliz has the burden of demonstrating that his counsel failed to raise "significant and obvious issues" which if raised, would likely have been successful," Mayo v. Henderson, 13 F.3d 528, 533-534 (2d Cir. 1994), therefore rebutting the "strong presumption that counsel's conduct falls within the 'wide range of reasonable professional assistance.'" United States v. Aquirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689). Feliz utterly fails to meet this burden.
It is clear that both of Feliz' attorneys conducted themselves reasonably in accordance with the above standards. First of all, there is nothing in the record to support the claim that Feliz's plea was in any way involuntary. Except for Feliz's unsworn, self-serving statements, his claim that he was threatened, intimidated or coerced into signing his plea agreement is completely unsupported. Feliz never maintained his innocence; in fact, he began cooperating with the government soon after his arrest. The record indicates Judge Schwartz conducted a thorough and complete plea hearing, where Feliz both confirmed that he was fully satisfied with Frankel's representation and advice, and that he was not induced to plead guilty by any fear, pressure, threat or force of any kind. Furthermore, Feliz did not alert Wilson, his second attorney, that he felt the drug quantities in the information were erroneous or that Frankel had coerced him into pleading guilty. See Wilson Aff. ¶ 4. Feliz' unsubstantiated allegations are not sufficient to rebut the presumption that Frinkel's and Wilson's conduct "fell within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Even if he had been intimidated by his attorney into pleading guilty, Feliz cannot demonstrate that he suffered any prejudice by signing his guilty plea. By entering into the plea agreement, Feliz avoided prosecution for several alleged criminal violations, including possession of two firearms on two separate occasions, participation in a conspiracy to distribute cocaine, and making false statements to law enforcement officials. The government also agreed that no testimony given by him, and no information derived from his testimony or cooperation, would be used against him in any criminal tax prosecution. The evidence against Feliz was strong, and there is no suggestion that, absent the alleged coercion by Frankel, Feliz would have chosen to go to trial. See Hill v. Lockhart, 474 U.S. at 59 (noting that the determination of whether the defendant was prejudiced depends on whether the defendant would have chosen to go to trial and whether he would been likely to prevail). As a result of his guilty plea and cooperation with the government Feliz received a dramatically reduced sentence; counsel's advice to enter into such a plea was, at the very least, objectively reasonable. In this case, Feliz's allegations are clearly "insufficient to satisfy theStrickland v. Washington requirement of 'prejudice.'" Id. at 60.
Feliz's argument that his right to effective assistance of counsel was violated when Frankel failed to challenge the amounts of the drugs specified in the plea agreement also has no merit. First of all, there is nothing on the record to suggest that the drug amounts were, in fact, erroneous, or that counsel acted in any way unreasonably when he did not question these amounts, and Feliz' allegations to the contrary are completely unsupported. Regardless, Feliz suffered no prejudice since he had adequate opportunity to challenge these amounts himself prior to the acceptance of his guilty plea. The specific drug amounts were contained in the plea agreement that Feliz voluntarily signed; furthermore, these amounts were read to Feliz at his plea hearing. Feliz, who assured Judge Schwartz that Frankel had explained everything in the plea to his satisfaction, never once mentioned that the drug amounts might be false or incorrect. Neither did he mention his concerns to the attorney he hired to handle his sentencing. Feliz cannot now argue that he was prejudiced when his counsel failed to object to amounts which he, himself, had accepted.
Similarly, Feliz' allegations that his attorney failed to advise him of his sentencing and appellate rights are completely unsubstantiated. Wilson has affirmed that he did, indeed, discuss Feliz' rights with him, a fact strongly corroborated by the fact that Wilson did, indeed, file a notice of appeal. Furthermore, these allegations would not, even if true, constitute a sustainable claim for ineffective assistance of counsel. The record indicates that Feliz was notified of his rights at his sentencing, so Feliz can show no prejudicial effect from his attorney's alleged lapse. See Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000) (noting that it would not be professionally unreasonable for an attorney to decide not to repeat the sentencing court's instructions regarding appeal rights). Feliz' ineffective assistance of counsel claim must therefore fail.
Wilson maintains that, after numerous discussions, Feliz decided not to pursue the appeal. See Wilson Arr. ¶ 4-5.
CONCLUSION
For the reasons outlined above, Feliz's petition pursuant to 28 U.S.C. § 2255 to vacate or set aside his conviction and sentence is hereby denied. This case is closed and the Court directs to Clerk of the Court to remove this case from the Court's active docket.