Opinion
04 Civ. 9937 (SAS).
March 13, 2007
For Respondent David Rody Assistant United States Attorney New York, New York.
For Petitioner:, Thomas Dunn, Esq. New York, New York.
Petitioner: Felix Flores Ray Brook, New York.
MEMORANDUM OPINION AND ORDER
On October 24, 2004, Felix Flores filed a pro se motion pursuant to 28 U.S.C. § 2255, to which the Government responded. See Government's Memorandum of Law in Opposition to Felix Flores's Petition to Vacate, Set Aside, or Correct Sentence Pursuant to Title 28, United States Code, Section 2255 ("Gov't Mem."). In that motion, Flores asserts six separate grounds for relief. See Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ¶¶ 12-13. Flores makes the following claims: (1) ineffective assistance of counsel; (2) denial of a Fatico hearing with respect to the drug quantity and the firearm enhancement; (3) miscalculation of the drug quantity for which he was held responsible; (4) inappropriate sentencing enhancement for possession of a firearm; (5) failure to apply Apprendi retroactively to his sentencing; and (6) the Government's inappropriate threat to file a prior felony information against him if he demanded a trial knowing that the prior conviction was part of the instant offense. An evidentiary hearing was held on February 27, 2007, to explore the factual circumstances surrounding Flores's ineffective assistance of counsel claim. With the exception of this claim, Flores's claims must be dismissed as a matter of law.
I. BACKGROUND
On November 6, 2002, Flores appeared before Magistrate Judge Theodore H. Katz to enter a guilty plea to Count One of the Indictment, pursuant to a plea agreement (the "First Agreement"). At the time, Flores was represented by Anthony Cueto. In the First Agreement, Flores: (1) stipulated to more than 1.5 kilograms of crack cocaine as the drug quantity; (2) agreed to a two-level enhancement for the possession of firearms; and (3) agreed to a two-level enhancement for managerial role. Finally, Flores agreed that he would not file a direct appeal, nor litigate under 28 U.S.C. § 2255, any sentence within or below the Stipulated Guidelines Range of 262 to 327 months.
On March 5, 2003, Flores filed a pro se motion to withdraw his guilty plea on the basis of ineffective assistance of counsel. This Court replaced Anthony Cueto with Elizabeth Fink. Fink persuaded the Government to offer Flores a new agreement (the "Second Agreement"). The Second Agreement incorporated virtually all of the terms of the First Agreement but permitted Flores to litigate the issue of whether he had a managerial role in the offense. Furthermore, the Second Agreement contained the following waiver provision: "It is further agreed (i) that the defendant will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Guidelines Range set forth above (210 to 262 months) and (ii) that the Government will not appeal any sentence within or above the Stipulated Guidelines Range (210 to 262 months)." 4/14/03 Plea Agreement, Ex. E to Gov't Mem., at 7. The Second Agreement provided for an adjusted offense level of 37 and a Stipulated Guidelines range of 210 to 262 months. See id. at 5.
On April 15, 2003, this Court conducted a new plea proceeding and took a new plea allocution from Flores. On October 23 and 27, 2003, this Court held a Fatico hearing limited to the sole issue regarding the two-level enhancement for managerial role. After the hearing, but before Flores's sentencing, Fink filed a motion opposing the enhancement and seeking a minor role adjustment, the latter request being barred by the Second Agreement. In exchange for Fink withdrawing this precluded motion, the Government waived its rights to seek a managerial role enhancement.
On June 10, 2004, this Court sentenced Flores to 210 months in custody. Prior to doing so, this Court raised, Sua Sponte, an issue regarding the factual showing necessary for the imposition of the two-level firearm enhancement. Fink acknowledged that Flores was aware that the conspiracy possessed and used many firearms, to which Flores had ready access, although he now denies that he had access. See Transcript of 2/22/07 Hearing ("Tr.") at 42. After sentencing, this Court advised Flores of his appellate rights, but informed him that they were limited by his plea agreement. Flores did not appeal his conviction and sentence.
II. LEGAL STANDARDS
A. Section 2255 Standard
Section 2255 allows a convicted person held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255. Accordingly, collateral relief under section 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes `a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
B. Waiver of Appellate/Collateral Attack Rights
A defendant's waiver of the right to collaterally attack his sentence under 28 U.S.C. § 2255 is generally enforceable as long as the record contains sufficient evidence to establish that the defendant knowingly and voluntarily waived these rights. See United States v. Monzon, 359 F.3d 110, 116 (2d Cir. 2004) (stating that an agreement to waive appellate and/or collateral attack rights is not enforceable unless "the record `clearly demonstrates' that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary") (quotation marks and citation omitted).
In no circumstance . . . may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement. Such a remedy would render the plea bargaining process and the resulting agreement meaningless.United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993) (per curiam). See also United States v. Tang, 214 F.3d 365, 368 (2d Cir. 2000); United States v. Garcia, 166 F.2d 519, 521 (2d Cir. 1999), United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998). The Second Circuit has long recognized that:
plea agreements can have extremely valuable benefits to both sides — most notably, the defendant gains reasonable certainty as to the extent of his liability and punishment, and the Government achieves a conviction without the expense and effort of proving the charges at trial beyond a reasonable doubt. . . . [T]he waiver [of appeal] provision is a very important part of the agreement — the Government's motivating purpose, decreased effort and expense of protracted litigation, is not well-met if the defendant is permitted to appeal that to which he has agreed.United States v. Rosa, 123 F.3d 94, 97 (2d Cir. 1997). Thus, a defendant's knowing and voluntary waiver of his right to attack his sentence pursuant to section 2255 is generally enforceable. See, e.g., Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002) ("There is no general bar to a waiver of collateral rights in a plea agreement.") (citing Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001) (per curiam)); Monzon, 359 F.3d at 116 ("Where the record clearly demonstrates that the defendant's waiver of her right to appeal a sentence within an agreed Guidelines range was knowing and voluntary, that waiver is enforceable.").
III. DISCUSSION
A. Flores Waived the Right to Collaterally Attack his Sentence
As stated above, all of the claims brought by Flores — with the exception of the ineffective assistance of counsel claim — must be dismissed because he waived the right to collaterally attack his sentence if it was within or below the Stipulated Guidelines Range of 210 to 262 months in custody. That waiver was included in the Second Agreement signed by Flores and was specifically brought to his attention during his second plea allocution before this Court. Accordingly, the waiver is valid and must be enforced. See Garcia-Santos, 273 F.3d at 508-09 (upholding defendant's waiver of the right to collaterally attack his sentence contained in his plea agreement, where defendant signed the plea agreement; indicated that he read and understood the plea agreement; never filed an appeal; and did not claim that he did not understand the waiver provision). Accordingly, except for the ineffective assistance of counsel claim, Flores's section 2255 motion is dismissed as a matter of law.
B. Flores's Ineffective Assistance of Counsel Claim
Regarding the ineffective assistance of counsel claim, Flores alleges that Fink was ineffective in the following ways: (1) Fink coerced Flores to plead guilty and accept a sentence of 210 months; (2) at Flores's sentencing, Fink refused to argue the drug quantity and the firearm enhancement; (3) prior to sentencing, Fink made a secret agreement with the government, without Flores's knowledge, to dismiss the two-level enhancement for managerial role; and (4) Fink failed to appeal Flores's sentence. See id. at 28. The only claim with any merit is the fourth claim.
In Campusano v. United States, 442 F.3d 770, 771 (2d Cir. 2006), the Second Circuit addressed the question of "whether an attorney who fails to file a notice of appeal requested by [her] client is constitutionally ineffective when the client waives appeal in his plea agreement." The court held that "even after a waiver, a lawyer who believes the requested appeal would be frivolous is bound to file the notice of appeal and submit a brief pursuant to Anders v. California, 386 U.S. 738 (1967) (parallel citations omitted). See also id. at 775 ("[W]e now hold, that where counsel does not file a requested notice of appeal and fails to file an adequate Anders brief, courts may not dismiss the hypothetical appeal as frivolous on collateral review.").
At the hearing, Fink was questioned as to whether Flores ever instructed her to file a notice of appeal. Fink conceded that honestly she could not remember if Flores had so requested given that a close friend was very ill at the time and she was distracted by her responsibilities to him. See Tr. at 19. Flores, on the other hand, credibly testified, in unequivocal terms, that he requested Fink to file a notice of appeal after he was sentenced. See id. at 56. I therefore assumethat Flores did instruct Fink to file a notice of appeal. Given the teachings of Campusano, Flores is now permitted to file a late notice of appeal. See Campusano, 442 F.3d at 777 ("If Campusano did give such an instruction, he is to be allowed a direct appeal."). Flores's CJA appointed lawyer, Thomas Dunn, is directed to file a notice of appeal on his behalf forthwith.
IV. CONCLUSION
For the foregoing reasons, Flores's motion under 28 U.S.C. § 2255 is granted to the extent of permitting him to file a late notice of appeal. The Clerk of the Court is directed to close this motion [Document #1] and this case.
SO ORDERED.