Opinion
05 Civ. 3348 (RMB)(FM).
July 18, 2006
REPORT AND RECOMMENDATION TO THE HONORABLE RICHARD M. BERMAN
I. Introduction
Petitioner Julio Guererro ("Guererro") brings this pro se habeas corpus proceeding pursuant to 28 U.S.C. § 2255 ("Section 2255") to challenge his conviction on one count each of conspiracy to commit a robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951, and possession of a firearm during that crime in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. On March 26, 2004, pursuant to a plea agreement that Guererro and his counsel had signed earlier that day, Guererro entered a plea of guilty to both counts of an indictment. (See letter from AUSA Harry Sandick to the Court, dated Nov. 14, 2005 ("Sandick Letter"), Exs. B ("Agreement") at 7, C (Tr. of Mar. 26, 2004, guilty plea) ("P.")). Thereafter, on September 14, 2004, Your Honor sentenced Guererro to 122 months' imprisonment, to be followed by five years' supervised release, and ordered him to pay a $200 special assessment. (See 02 Cr. 988, Docket No. 24).
In his petition, Guererro alleges that he was denied effective assistance of counsel, in violation of the Sixth Amendment, because his attorney did not achieve a better result despite lengthy pretrial proceedings, misadvised him with respect to the presentence report, and did not obtain certain discovery materials that allegedly would have affected the sentencing outcome. (See Docket No. 1 ("Pet.") at 1-2). For the reasons that follow, Guererro's petition should be denied.
II. Background
A. Factual Background
On November 25, 1997, Guererro and another individual robbed Felix Ventura and Associates, a calling card store located at East 167th Street in the Bronx. (P. 18-19). During the course of the robbery, Guererro brandished a gun. (Id. at 19). Unbeknownst to Guererro, a surveillance camera captured his actions during the robbery on videotape. (Id. at 18; Sandick Letter at 2).
B. Guilty Plea and Sentencing
On March 26, 2004, Guererro entered into a written Agreement with the Office of the United States Attorney for the Southern District of New York. (Sandick Letter Ex. B). The Agreement was signed by both Guererro and his counsel, Lee Ginsberg, Esq. ("Ginsberg"), and, among other things, outlined the two counts with which Guererro was charged and the possible sentencing consequences of pleading guilty to those counts. (Id.).
Pursuant to the Agreement, the parties stipulated that if Guererro entered a plea of guilty: (a) his Guidelines Offense Level for the Hobbs Act conspiracy charged in Count One would be 17, which translated into a Guidelines Range of 37 to 46 months; (b) the Section 924(c) violation charged in Count Two required the imposition of a consecutive sentence of 84 months; (c) his Criminal History Category was IV (given his nine criminal history points); and (d) his Guidelines sentencing range therefore would be 121 to 130 months of imprisonment. (Id. at 2-4). Guererro further agreed that he would neither "file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below [that r]ange." (Id. at 5).
Guererro also expressly agreed to "waive any and all right to withdraw his plea or to attack his conviction, either on direct appeal or collaterally, on the ground that the Government . . . failed to produce any discovery material . . . that ha[d] not already been produced as of the date of the signing of this Agreement." (Id. at 6). In addition, Guererro acknowledged that he was pleading guilty because he was, in fact, guilty. (Id.).
During the proceeding on March 26, 2004, the Court engaged in a lengthy colloquy with Guererro, through an interpreter, regarding the knowing and voluntary nature of his guilty plea. (See P. 3-10). At the outset, the Court explained:
Mr. [Guererro], before I can accept your guilty plea, I need to ask you a series of questions to make sure that I can establish to my satisfaction that you do wish to plead guilty and that you do so voluntarily and knowingly and because you are guilty, and also to establish that you know what rights you would be giving up by pleading guilty. So if you don't understand any of my questions or if at any time you wish to consult with your attorney for any reason, please say so and I will give you as much time as you need . . . because it is essential to a valid plea that you understand each question before you answer. So again I am going to ask if you are able to understand these proceedings with the help of the interpreter?
(Id. at 3). In response, Guererro said, "Yes." (Id. at 4).
With respect to the adequacy of defense counsel's services, the following exchange then took place:
THE COURT: Mr. [Guererro], I asked this before, but I am going to ask it again: Have you had a full opportunity to discuss all aspects of the case with your attorney?
DEFENDANT: Yes.
THE COURT: Including any possible defenses that you might have to the charges in the indictment to which you have offered to plead guilty?
DEFENDANT: Yes.
THE COURT: Are you fully satisfied with Mr. Ginsberg's representation of you?
DEFENDANT: Yes.
THE COURT: Are you also satisfied with the legal advice that Mr. Ginsberg has given you?
DEFENDANT: Yes.
(Id. at 6). The Court also established Guererro's satisfaction with his attorney's representation of him a second time a little while later. (See id. at 9).
The Court then explained to Guererro in detail that by pleading guilty he was giving up his right to a jury trial, with all of the accompanying substantive and procedural protections. (Id. at 7-8). Once again, Guererro stated that he understood. (Id.). The Court also reviewed with Guererro the potential sentencing consequences of pleading guilty, including the fact that he was exposing himself to a potential 27-year sentence. (Id. at 10-11). The Court also carefully explained the provisions of the Agreement concerning sentencing, including the Stipulated Guidelines Range. (Id. at 12-15). Again, Guererro indicated that he understood. (Id.). Finally, the Court established that Guererro understood the provision of the Agreement pursuant to which he had waived his right to appeal or otherwise challenge any sentence within or below the range of 121 to 130 months. (Id. at 16-17).
At the conclusion of the proceeding, the Court accepted Guererro's guilty plea. (Id. at 20). Thereafter, on September 30, 2004, Guererro was sentenced to 122 months' imprisonment, to be followed by five years' supervised release, and he was ordered to pay a $200 special assessment. (See 02 Cr. 988, Docket No. 24). He currently is serving his sentence.
C. Procedural History
On or about March 4, 2005, Guererro submitted to the Pro Se Office of this Court a document labeled "Motion to Vacate Based on Ineffective Counsel." (Docket No. 1). The motion made no mention of Section 2255. (Id.). Because the Anti-Terrorism and Effective Death Penalty Act of 1996 prohibits second or successive petitions, Chief Judge Mukasey heeded the Second Circuit's admonition in Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998) (per curiam), that a motion should not be treated sua sponte as an application for relief under Section 2255. Accordingly, by Order dated March 30, 2005, Judge Mukasey directed Guererro to submit an affirmation within sixty days informing the Court whether he wished to pursue relief pursuant to Section 2255. (See Docket No. 2). The Order cautioned Guererro that if he failed to do so, the petition would be construed as a motion under Section 2255. (Id.).
The docket sheet contains no response to Judge Mukasey's Order. After it was issued, however, on or about June 10, 2005, Guererro's case was reassigned to Your Honor. (See Docket No. 3). On or about July 29, 2005, Your Honor referred the case to me to report and recommend. (See Docket No. 4). Because Guererro had not responded to Judge Mukasey's Order, on August 9, 2005, I directed that the Government respond to Guererro's motion as a Section 2255 motion. (See 02 Cr. 988, Docket No. 28). Thereafter, the Government submitted the Sandick Letter on November 14, 2005. (See Sandick Letter at 1).
III. Discussion
A. Section 2255
The first sentence of Section 2255 provides:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.28 U.S.C. § 2255. Relief under that statute therefore may be based only on "constitutional error . . . 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)). Among the reasons for circumscribing relief in this manner are "a respect for the finality of criminal sentences, the efficient allocation of judicial resources, and an aversion to retrying issues years after the underlying events took place." Id.
B. Procedural Bar
It is settled law that Section 2255 is "not a substitute for [a direct] appeal." Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998) (quoting United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998)); Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993) (per curiam). Consequently, claims which could have been raised on direct appeal, but were not, generally are unreviewable under Section 2255, unless the defendant can demonstrate either: "(1) cause for failing to raise the issue, and prejudice resulting therefrom; or (2) actual innocence." Sapia v. United States, 433 F.3d 212, 217 (2d Cir. 2005) (quoting Rosario, 164 F.3d at 732). Here, Guererro has made neither showing.
Another exception to the general rule relates to ineffective assistance of counsel claims, which the Supreme Court has held need not be raised on direct appeal. Massaro v. United States, 538 U.S. 500, 504 (2003) (because the trial judge is in the best position to assess the merits of an ineffective assistance claim, "a motion brought under [Section] 2255 is preferable to direct appeal for deciding [such] claims"). Even if that exception applies in this case, Guererro faces the further obstacle that the Agreement that he signed incorporates language expressly relinquishing his right to pursue either an appeal or Section 2255 relief, provided only that he received a "sentence within or below the Stipulated Sentencing Guideline Range of 121 to 130 months' imprisonment." (Sandick Letter Ex. B at 5). The Agreement also states that Guererro waives his right "to attack his conviction, either on direct appeal or collaterally, on the ground that the Government . . . failed to produce any discovery material." (Id. at 6). The Government contends Guererro therefore has waived the right to seek any of the relief requested in his Section 2255 motion. (Sandick Letter at 3, 8).
A petitioner is foreclosed from challenging a guilty plea entered pursuant to a plea agreement in which the petitioner knowingly and voluntarily has relinquished the right to pursue such relief. See, e.g., United States v. Monzon, 359 F.3d 110, 116 (2d Cir. 2004) ("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."); Ayeni v. United States, No. 04 Civ. 6607 (DLC), 2004 WL 2238508, at *2 (S.D.N.Y. Oct. 4, 2004) (habeas petition procedurally barred where petitioner had knowingly and voluntarily waived his right to pursue habeas relief). As the cases giving force to such waivers recognize, permitting "a defendant to escape the fairly bargained-for consequences of her agreement with the government would 'render the plea bargaining process and the resulting agreement meaningless.'" Monzon, 359 F.3d at 117 (quotingUnited States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993) (per curiam)).
The Second Circuit nevertheless has cautioned that waivers prohibiting a petitioner from seeking appellate or collateral relief must be strictly construed against the Government. See United States v. Tang, 214 F.3d 365, 368 (2d Cir. 2000). Thus, a waiver that precludes the petitioner from contesting only his sentence does not foreclose him from questioning an unrelated aspect of his plea. See United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001) (per curiam) ("In this case, the defendant is not appealing any aspect of his sentence; he is appealing the denial of his motion to withdraw his guilty plea. . . . Therefore, the plea agreement clearly does not bar this appeal."). Moreover, when a petitioner challenges the steps that preceded his waiver, the courts have held that the inquiry is not foreclosed, regardless of the waiver language. See id. ("Even if the plain language of the plea agreement barred this appeal, we would not enforce such a waiver of appellate rights in this case because the defendant is challenging the constitutionality of the process by which he waived those rights."); see also Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002) ("a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured").
In this case, Guerrero's motion papers, liberally construed, allege that his counsel was ineffective because "[a]pproximately [three] years and [eight] months ha[d] passed" from the "date of [his] arrest [July 2, 2002] to the date of the plea agreement," which he describes as February 19, 2004. (Pet. at 1). He further notes the "obvious" fact that his "lawyer had approximately [one] year [seven] months to prepare [his] defense which came down to a plea agreement." (Id.). To the extent that this constitutes an attack on the quality of the legal representation that Guererro received in connection with his decision to enter into the Agreement and plead guilty, his claim may not have been waived by the terms of the Agreement. Accordingly, the Court may consider Guererro's argument that his counsel was ineffective in the period leading up to his guilty plea.
The Agreement is dated February 19, 2004, but was not countersigned by Guererro and his counsel until March 26, 2004, when he entered his guilty plea. (See Agreement at 1, 7).
C. Ineffective Assistance of Counsel
To vacate his plea based on a claim of ineffectiveness assistance of counsel, Guererro must show that (1) his lawyer's performance "fell below an objective standard of reasonableness;" 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. 668, 688, 694 (1984). In connection with the first of these requirements, the petitioner must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Additionally, in the context of a guilty plea, a court analyzing the prejudice requirement must determine whether, but for counsel's errors, the defendant "would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
A court considering an ineffectiveness claim need not "address both components of the [Strickland] inquiry if the [petitioner] makes an insufficient showing on one." Strickland, 466 U.S. at 697. As the Second Circuit has noted, "[t]he Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
1. Counsel's Conduct Prior to the Plea
The docket sheet for Guererro's criminal case confirms that he was arrested on or about July 2, 2002. (See 02 Cr. 988, Docket No. 3). Subsequently, he was indicted on July 25, 2002. (See id., Docket No. 4). Between his arraignment on July 31, 2002, and the date of his guilty plea on March 26, 2004, the case was adjourned on a number of occasions. (See id., Docket Nos. 11-12, 19). Among the reasons noted on the docket for the delays were plea negotiations. (Id.). There is nothing on the docket or in Guererro's motion papers which suggests that Guererro was in any way prejudiced by these delays. Indeed, although Guererro was in custody throughout this period, the time that he spent in jail awaiting trial will be credited against the lengthy sentence that he is serving. See 18 U.S.C.A. § 3585(b) ("A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences. . . ."); see also Werber v. United States, 149 F.3d 172, 173 (2d Cir. 1998) (Bureau of Prisons "(properly) refused to credit [inmate's] pre-sentence federal detention to the federal sentence because it had already been credited to [a] California sentence, and because 18 U.S.C. § 3585(b) bars double-counting").
The fact that Guererro's counsel had more than twenty months following the return of the indictment to prepare for trial, yet was able to negotiate only a guilty plea, does not mean that counsel was ineffective. Rather, it is at least equally plausible that the outcome of the case merely reflected the strength of the Government's proof. Because defense counsel must be presumed to have been adequate, Strickland, 466 U.S. at 689, the record before the Court does not permit any inference that the representation and advice that Guererro received from his attorney through the date of his guilty plea were in any way defective.
In short, to the extent that Guererro contends that his lawyer failed to represent him adequately in connection with his guilty plea, his argument fails to satisfy the first branch of the Strickland formula. There consequently is no need to consider the question of prejudice.
2. Remaining Ineffectiveness Claims
The other objections that Guererro now raises with respect to the performance of his counsel are belied by his own sworn statements during his guilty plea indicating that he was satisfied with his attorney's representation and advice. See United States v. DeJesus, 219 F.3d 117, 121 (2d Cir. 2000) (rejecting defendant's assertion that he did not knowingly waive his right to appeal in his plea agreement as inconsistent with his statements during the plea colloquy); United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997) ("A defendant's bald statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea.").
Moreover, because Guererro argues that the other ways in which his attorney failed to represent him adequately had an adverse impact on his sentence, these claims appear to have been waived by his agreement not to appeal or otherwise challenge a sentence within the Stipulated Guidelines Range. As the Second Circuit explained in United States v. Djelevic, 161 F.3d 104 (2d Cir. 1998):
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. "[T]he waiver 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 [despite] that to which he has agreed."Id. at 107 (quoting United States v. Rosa, 123 F.3d 94, 97 (2d Cir. 1997)).
Even if Guererro's remaining claims were not waived, they plainly would not afford him a basis to set aside his sentence. Guererro first suggests that, despite his requests, his attorney never showed him any victim statements or the videotape that placed him at the scene of the crime. Guererro does not contend, however, that he did not commit the crimes charged in the indictment. Moreover, as part of his guilty plea allocution, he admitted under oath that he had. (See P. 2, 18-19). Accordingly, even if he never saw the videotape or any victim statements, there is no reason to believe that this had any impact on his sentence. Also, as the Government accurately observes, a defendant is not entitled to receive any witness statements in the Government's possession until the witness has testified on direct at trial. (See Sandick Letter at 15 (citing 18 U.S.C. § 3500)). Since Congress has determined that victim statements may be withheld until that late stage, Guererro would be hard pressed to show that his attorney's failure to show them to him constituted ineffective assistance of counsel. In fact, Guererro has not even established that the statements had been turned over to his attorney. In light of the presumption that counsel has provided effective assistance, Guererro's supposition to the contrary plainly does not warrant the relief he requests.
Guererro also asserts that he "signed" the presentence report "based on unsupportive advice from [his attorney]." (Pet. at 2). Although he indicates that the report is attached to his motion (see id.), I was unable to locate it in the Court file. A copy furnished by the Government confirms that Guererro never, in fact, "signed" the presentence report. In any event, even if Guererro's motion papers are read as contending simply that he should not have agreed with the Government's version of events set forth in the presentence report, insofar as it accused him of brandishing a weapon, the fact remains that Guererro admitted the use of a firearm at least twice: first, in the Agreement, in which he represented that he had "decided to plead guilty because he is in fact guilty" (Agreement at 6); and, second, under oath during his guilty plea, when he stated that he was guilty of both crimes. (P. 18-19). Moreover, the Government's case did not depend on Guererro's admissions. At trial, the Government would have adduced the testimony of both the victim and Guererro's co-conspirator and introduced the videotape of Guererro committing the robbery. (See id. at 18; Sandick Letter at 2). In light of this proof, and Guererro's admissions, defense counsel can scarcely be faulted for not taking issue with the statement in the presentence report that Guererro had brandished a gun.
In sum, there has been no showing that Guererro's counsel provided ineffective assistance in connection with his sentencing. There consequently is no need to consider whether he suffered any prejudice therefrom.
IV. Conclusion
For the foregoing reasons, Guererro's petition pursuant to 28 U.S.C. Section 2255 should be denied.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have any objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Richard M. Berman, United States District Judge, and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, NY 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b), Any requests for an extension of time for filing objections must be directed to Judge Berman. Any failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Am, 474 U.S. 140 (1985); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(c), 72(b).