Opinion
99 Cr. 204 (JGK), 02 Cv. 1663 (JGK)
January 20, 2003
OPINION and ORDER
Petitioner Frank Hernandez moves pursuant to 28 U.S.C. § 2255 to vacate or set aside the sentence imposed following his conviction, pursuant to his guilty plea, for intentionally and knowingly attempting to distribute and to possess with intent to distribute a controlled substance, specifically cocaine, in violation of 21 U.S.C. § 812, 841(a)(1), and 841(b)(1)(B). The petitioner raises four grounds of relief based on alleged sentencing errors, arguing (1) that the Court should have granted a downward departure on the basis of the defendant's willingness to consent to deportation; (2) that the Court should have granted a downward departure for the minor role the defendant played in the offense; (3) that the Court miscalculated the defendant's criminal history category; and (4) that the Court should have granted the defendant a three-level downward adjustment pursuant to U.S.S.G. § 2X1.1(4). The petitioner also argues that he received ineffective assistance from his trial counsel because his trial counsel failed to investigate these issues and present them to the sentencing court. Because none of these contentions has any merit, and for the reasons set forth below, the petitioner's motion is denied.
I.
On November 19, 1999 Frank Hernandez pleaded guilty pursuant to a Plea Agreement to a Superceding Information charging him with one count of attempting to distribute and to possess with intent to distribute cocaine, a Class B felony, in violation of 21 U.S.C. § 846, 841(a)(1) and 841(b)(1)(B).
Hernandez's guilty plea arose out of events that took place on February 8, 1999. (Presentence Report ("PSR") ¶ 7.) On that date, Hernandez approached the government's confidential informant on 86th Street and 2nd Avenue and arranged to purchase four kilograms of cocaine. (PSR ¶ 8.) Hernandez agreed to pay $28,500 per kilogram for two kilograms of cocaine when the sale was consummated, and to pay for the remainder later. (PSR ¶ 8.) Later that day, Hernandez approached the confidential informant carrying a blue "GAP" bag. (PSR ¶ 10.) The two men then walked over to the informant's car, where Hernandez indicated he had the money and asked to see the cocaine. (PSR ¶ 11.) The informant opened the trunk, and soon thereafter signaled for Hernandez to be arrested. (PSR ¶¶ 11-12.) Hernandez began running away, dropped the "GAP" bag which contained $57,020, and was soon arrested. (PSR ¶ 13.)
Hernandez pleaded guilty and was sentenced on April 11, 2000 to a term of imprisonment of 87 months imprisonment, four years of supervised release, and ordered to pay a mandatory $100 special assessment. Represented by new counsel, Hernandez appealed his conviction. Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), advising the Court of Appeals that there were no non-frivolous grounds for appeal, but discussing two issues: first, whether the guilty plea was knowing, voluntary, and entered in accordance with Fed.R. Cr. P. 11; and, second, whether the petitioner was deprived of effective assistance of counsel at the plea. The petitioner's conviction was summarily affirmed by the Court of Appeals for the Second Circuit. United States v. Frank Hernandez, 00-1300 (2d Cir. Mar. 12, 2001) (unpublished decision). Hernandez subsequently filed this § 2255 motion for post-conviction relief, raising four claims relating to sentencing errors and one claim of ineffective assistance of trial counsel.
II.
The Government first argues that the petitioner is barred from raising any of his claims because they were not raised on direct appeal. "It is well-settled that where a petitioner does not bring a claim on direct appeal, he is barred from raising the claim in a subsequent § 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom." Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982) and superceded by statute on other grounds as noted in Triestman v. United States, 124 F.3d 361, 369 n. 8 (2d Cir. 1997)); accord Dejesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998); Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993) (superceded by statute on other grounds); Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992); Joseph v. United States, No. 99 Civ. 3495, 2000 WL 460439, at *1 (S.D.N.Y. April 18, 2000).
The petitioner did not raise any of the sentencing arguments now raised in his § 2255 petition in his appeal to the Court of Appeals. In hisAnders brief to the Court of Appeals, appellate counsel found no non-frivolous grounds to raise on appeal and did not even note for the Court of Appeals any of the sentencing issues the petitioner now raises. The petitioner has not demonstrated cause and prejudice for failure to raise any of his arguments related to sentencing on his direct appeal. The facts relating to these arguments were all known at the time of sentencing and the petitioner raised the minor role adjustment at sentencing. (See Tr. dated April 11, 2000 at 7-10.) These arguments were available to the petitioner's appellate counsel, but none were made on appeal, and given the absence of any showing of cause and prejudice for failure to raise them on direct appeal, they are procedurally barred.
The petitioner's claim of ineffective assistance of trial counsel, is also procedurally barred. In Bill-Eko, the Court of Appeals for the Second Circuit held that the failure to raise ineffective assistance of counsel claims on direct appeal should not necessarily be treated similarly to a failure to raise other constitutional claims. See Bill-Eko, 8 F.3d at 114. Ineffective assistance of trial counsel claims often require consideration often require consideration of matters different from other constitutional claims and therefore the Court of Appeals formulated a general rule allowing ineffective assistance of counsel claims on collateral attack. See id.
However, Bill-Eko also recognized that in the "narrow category of cases" where the defendant has both new appellate counsel on direct appeal and the ineffective assistance claim is based solely on the record developed at trial, the petitioner must still show cause for not bringing the ineffective assistance claim on direct appeal, and prejudice resulting therefrom. See Billy-Eko, 8 F.3d at 115. The Bill-Eko court, held, however, "We expect that there will be few cases in which ineffective assistance claims will be based solely on the record developed at trial, and we also expect that most defendants bringing such claims on § 2255 motions will not find their claims barred." Id. at 116.
In this case, the petitioner did have new counsel appointed on his direct appeal, and his ineffective assistance of counsel claim is based solely on the conduct of his trial counsel. To the extent that the ineffective assistance of trial counsel can be considered an issue raised on appeal because it was specifically brought to the attention of the Court of Appeals in appellate counsel's Anders brief and the conviction was summarily affirmed, then that issue is barred on this petition because a petitioner cannot raise an issue on a § 2255 petition that was raised and rejected on direct appeal. United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (per curiam) ("It is well established that a § 2255 petition cannot be used to relitigate questions which were raised and considered on direct appeal.") (quotations omitted).
To the extent that the ineffective assistance of trial counsel was not sufficiently raised on direct appeal, then the issue is also barred because the petitioner has failed to show cause and prejudice for having failed to raise it on direct appeal. See also Jorge v. United States, 818 F. Supp. 55, 56-57 (S.D.N.Y. 1993) (claim barred in § 2255 petition because petitioner could have raised claim on direct appeal despite the fact that his appellate counsel filed an Anders brief). The plaintiff's claim of ineffective assistance of trial counsel is therefore procedurally barred.
III.
Additionally, the sentencing arguments raised by the petitioner are not cognizable in a § 2255 motion. Absent a complete miscarriage of justice, claims alleging non-constitutional sentencing errors that have not been raised on direct appeal may not be reviewed in a § 2255 motion. See Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (per curiam). The petitioner does not raise any constitutional challenges or allege a complete miscarriage of justice. The petitioner merely argues either that the Court committed errors in sentencing or that the Court should have exercised its discretion differently, so as to impose a lower sentence. None of these arguments were raised on direct appeal, and do not raise constitutional questions; consequently, they cannot be raised in a § 2255 motion.
IV.
The Government also argue that in his plea agreement, the petitioner waived his right to attack collaterally his sentence in a § 2255 motion. The plea agreement signed by the petitioner, provides, in relevant part
It is further agreed (i) that the defendant will neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated sentencing range set forth above and (ii) that the Government will not appeal any sentence within or above the stipulated Sentencing range.
(Plea Agreement at 4.) The Stipulated Sentencing Range was defined as 87 to 108 months. (Plea Agreement at 3.) During his plea colloquy, the petitioner indicated that he understood that should the Court impose a sentence within the range of 87 to 108 months, pursuant to the plea agreement, he had waived his right to appeal or litigate or otherwise challenge that sentence. (Tr. dated Nov. 19, 1999 at 33.) The petitioner's waiver of his right to challenge the sentence imposed by this Court in s § 2255 motion is an independent basis on which to deny the plaintiff's § 2255 motion.
Although the petitioner's plea agreement barred the petitioner from seeking a direct appeal of his sentence, (Plea Agreement at 4.), the Court informed the petitioner that he had the right to appeal his sentence. (See Tr. dated April 11, 2000 at 17.) Despite a waiver of the right to appeal, appellate counsel has certain obligations under Anders to file a brief on appeal. See United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000). However, the question for the purposes of this motion is not whether the petitioner had a right to a direct appeal, but whether he waived his right to file a § 2255 motion. It is clear from the text of the plea agreement that the petitioner did waive this right and there was nothing in the plea colloquy or at sentence that detracted from the petitioner's waiver of his right to attack his sentence collaterally. (Plea Agreement at 4.)
The petitioner's waiver of his rights to appeal or to attack collaterally his sentence does not preclude him from raising a claim of ineffective assistance of counsel based upon the process by which he entered into the plea agreement or waiver. Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 196 (2d Cir. 2002). The petitioner's ineffective assistance of counsel claim, however, is not based upon a challenge to the validity of the plea agreement.
V.
There is, in any event, no merit to any of the petitioner's claims.A.
The petitioner first argues that he was entitled to a two-level downward departure, pursuant to U.S.S.G. § 5K2.0 because of his willingness to consent to deportation to the Dominican Republic. The Court of Appeals for the Second Circuit has made clear that the mere fact a criminal defendant agrees to consent to deportation is not a sufficient basis to grant a motion for downward departure under § 5K2.0. United States v. Gavez-Falconi, 174 F.3d 255, 260 (2d Cir. 1999). In order to qualify for a departure under § 5K2.0 for consenting to deportation, the defendant "must present a colorable, nonfrivolous defense to deportation, such that the act of consenting to deportation carries with it unusual assistance to the administration of justice." Id. Without such a showing, merely consenting to deportation is an insufficient basis for a district court to grant a departure under § 5K2.0. Id.; United States v. Sentamu, 212 F.3d 127, 137 (2d Cir. 2000).
Here, the petitioner has made no showing that his consent to deportation involves circumstances that would provide unusual assistance to the administration of justice. Having been convicted of an aggravated felony, the petitioner raises no basis to question that the Government would be able to effectuate his removal. There was therefore no reasonable basis to grant the petitioner's request for a downward departure pursuant to § 5K2.0, even if it had been made.
Moreover, it is not clear that the petitioner has even consented to deportation. At no time during his guilty plea or at sentencing did the petitioner indicate that he had consented to being deported to the Dominican Republic without objection. Consequently, the fact that the petitioner now consents to deportation, in his § 2255 petition, does not overcome his initial failure to consent in his plea agreement, and any application for a downward departure under § 52K.0 must be denied on that basis alone. See Cardona v. United States, Nos. 99 Civ. 4482, 89 Cr. 305, 2000 WL 1229886, at *4 (S.D.N.Y. Aug. 29, 2000).
B.
The petitioner's second argument is that he was improperly denied a mitigating role adjustment pursuant to U.S.S.G. § 3B1.2 on the grounds that he only played a minor role in the offense to which he pleaded guilty. This argument is without merit.
The petitioner explicitly agreed in his plea agreement that he was waiving his right to seek a mitigating role adjustment. The Guideline calculations in the Plea Agreement provided for no such mitigating role adjustment. The plea agreement then provided, in relevant part:
The parties agree that neither a downward nor an upward departure from the Stipulated Sentencing range set for above is warranted. Accordingly, neither party will seek such a departure or seek any adjustment not set forth herein. Nor will either party suggest that the Probation Department consider such a departure or adjustment, or suggest that the Court sua sponte consider such a departure or adjustment.
(Plea Agreement at 3.) The petitioner waived his ability to seek a downward adjustment for an alleged mitigating role and therefore cannot receive a minor role adjustment.
Moreover, the petitioner is not entitled to a downward adjustment pursuant to § 3B1.2. The PSR indicates that the petitioner intended to purchase four kilograms of cocaine from the government's confidential informant, and had enough cash on hand, totaling over $57,000, to purchase two kilograms of cocaine. (PSR ¶¶ 8-13.) The petitioner negotiated the transaction, procured the money and was actively involved in attempting to bring the purchase to fruition. Given these facts it cannot be said that the petitioner played a minimal or minor role in the drug transaction in question. Cf. United States v. Imtiaz, 81 F.3d 262, 264-65 (2d Cir. 1996) (per curiam) (noting that defendant's delivering of money and picking up of heroin could be sufficient basis to deny downward adjustment for minor role); United States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990) (per curiam) (upholding denial of minor role adjustment for courier defendant in drug transaction). The petitioner's claim for a reduced sentence, pursuant to a claim for a downward adjustment is without merit.
C.
The petitioner next argues that this Court miscalculated his criminal history category at the time of his sentencing, by failing to consider his two prior felony convictions as one conviction because they arose from related cases. This argument is also without merit. The petitioner was sentenced to a term of imprisonment of 87 months, based on calculation of a base offense level of 27 and criminal history category III. The petitioner argues that he should have been in a lower criminal history category.
Although the sentences for the petitioner's two prior convictions were imposed on the same day, the convictions themselves were not related. The Sentencing Guidelines provide clearly that where a defendant is arrested for a first offense before he commits the second offense, the sentences imposed for the two offenses are not to be considered related. See U.S.S.G. § 4A1.2 n. 3. The petitioner was arrested on January 14, 1995 for the attempted sale of a controlled substance to an undercover police officer, and he was arrested again on May 23, 1995 for passing heroin to another person. For both arrests, the petitioner was convicted in New York Supreme Court. The two prior offenses committed by the defendant, although they resulted in concurrent sentences, were not related because of the intervening arrest for the first offense occurred before the commission of the second offense and therefore, this Court's calculation of the petitioner's criminal history category was correct.
The petitioner also seems to allege that he could not have been placed in a higher criminal history category on the basis of his prior felony convictions because those convictions were not charged in the superceding information to which he pleaded guilty. There is no requirement that either an indictment or an information list a defendant's prior convictions in order for this Court to consider them in determining a defendant's criminal history category.
D.
The petitioner's final sentencing argument, based on U.S.S.G. § 2X1.1, alleges that he was entitled to a three level reduction because he did not commit all of the acts necessary to complete the offense. The findings of fact adopted by this Court, as indicated by the PSR, indicate that there was no basis for the petitioner to receive a downward adjustment pursuant to § 2X1.1.Section 2X1.1 provides that convictions for attempt are entitled to a decrease of three levels unless
the defendant completed all of the acts the defendant believed necessary for the successful completion of the substantive offense or the circumstances demonstrate that the defendant was about to complete all such acts but for apprehension or interruption by some similar event beyond defendant's control.
U.S.S.G. § 2X.1(b)(1). With money in hand, the petitioner was apprehended right when he was about to purchase the cocaine from the confidential informant. He completed all of the acts that he believed were necessary to consummate the transaction. Moreover, the circumstances indicate that the sale would have occurred, absent the intervention of the police, who arrested the petitioner before he exchanged the money for the cocaine. The circumstances of the petitioner's crimes meet both of the two exceptions to § 2X1.1 adjustments, and consequently, the defendant was not entitled to a three level downward adjustment. See United States v. Medina, 74 F.3d 413, 419 (2d Cir. 1996) (noting that conduct of the defendant, not the intervention of law enforcement, is dispositive on question of whether attempt was sufficiently complete so as to warrant adjustment under § 2X1.1). The petitioner's claim for a reduced sentence pursuant to § 2X1.1 is denied.
E.
The petitioner's final claim alleges that he received ineffective assistance of trial counsel. To establish a claim of ineffective assistance of counsel, the petitioner must show both that: (1) his counsel's performance was deficient in that it was objectively unreasonable under professional standards prevailing at the time, and (2) that his counsel's deficient performance was prejudicial to his case.See Strickland v. Washington, 466 U.S. 668, 687 (1984); Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995).
The petitioner cannot meet the first prong of this test merely by showing that his counsel employed poor strategy or made a wrong decision. Instead, the defendant, must establish that his counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." See Strickland, 466 U.S. at 687. In fact, there is a "strong presumption" that defense counsel's conduct fell within the broad spectrum of reasonable professional assistance, and a defendant bears the burden of proving "that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citing Strickland, 466 U.S. at 688-89).
To meet the second prong of the Strickland test, the petitioner must show that "[t]here is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Ramos v. United States, No. 97 Civ. 2572, 1998 WL 230935, at *3 (S.D.N.Y. May 8, 1998). In the context of sentencing, the petitioner must show that but for counsel's ineffectiveness, there was a reasonable probability that the sentence imposed would have been different. See United States v. Workman, 110 F.3d 915, 920 (2d Cir. 1997).
The petitioner argues that he did not receive effective assistance of counsel because his trial counsel failed to investigate and raise various sentencing arguments that would have resulted in a lower term of imprisonment. This argument has no merit. As explained above, the bases that the petitioner has used to argue for various adjustments and departures do not warrant a reduction in his sentence and there was no ineffectiveness in failing to raise such non-meritorious arguments. Moreover, advised by counsel, the petitioner entered into a plea agreement and pleaded guilty. The petitioner has not claimed that his plea agreement or plea was involuntary. The effect of his plea was to reduce his sentence substantially because of the credit he received for acceptance of responsibility. See U.S.S.G § 3E1.1(a) and (b)(2); (see also Plea Agreement at 2.). There is no allegation made by the petitioner that he received ineffective assistance of counsel in entering into the plea agreement or in pleading guilty, and because he was able to avoid a lengthier term of imprisonment by accepting responsibility it is clear that the petitioner received effective assistance of counsel from his trial attorney.
CONCLUSION
For the reasons explained above, the petitioner's petition for habeas corpus pursuant to 28 U.S.C. § 2255 is denied with respect to all five of the petitioner's claims. The Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253 because the petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Clerk of the Court is directed to enter judgment dismissing the petition and closing this case.