Opinion
02 Civ. 640 (HB)
December 27, 2002
OPINION ORDER
Martha Martinez ("petitioner"), pro se, moves pursuant to 28 U.S.C. § 2255 to vacate and set aside or correct her sentence that was entered on June 13, 2001, on the ground that she received ineffective assistance of counsel in violation of her Sixth Amendment right to counsel. Specifically, petitioner argues that her attorney failed (1) to challenge the drug amounts and the role adjustment to be applied at sentencing; and (2) to present the Court with petitioner's extenuating family circumstances for which a downward departure was warranted under the United States Sentencing Guidelines ("U.S.S.G."). For the reasons detailed more fully below, petitioner's § 2255 petition is denied and the petition dismissed.
I. BACKGROUND
Petitioner pled guilty on February 28, 2001 pursuant to a plea agreement covering a two-count indictment. The first count was conspiracy to distribute and to possess, with intent to distribute, one kilogram and more of heroin, in violation of 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(A). The second count was conspiracy to launder the proceeds of illegal narcotics transactions, in violation of 18 U.S.C. § 1956 (a)(1)(B)(i) and 1956(h). The plea agreement included, inter alia: (1) an agreed-upon offense level with a U.S.S.G. range of 63-78 months; (2) an agreement by both parties not to seek a departure or adjustment outside of the agreed-upon guidelines range; (3) a waiver by petitioner of her right to appeal, or otherwise litigate under 28 U.S.C. § 2255, any sentence imposed within or below the stipulated U.S.S.G. range; and (4) an agreement that petitioner was eligible for a two-level reduction for her role in the narcotics offense and that, based upon the available information, petitioner was eligible for safety-valve relief from the ten-year statutory minimum sentence prescribed by the federal narcotics laws. See Plea Agreement, at 2-4, 5.
This agreement by the petitioner alone resolves this matter. However, for the sake of completeness I address petitioner's additional concerns.
On June 13, 2001, I sentenced petitioner to 63 months imprisonment, a three-year term of supervised release, and the mandatory $200.00 special assessment. Petitioner did not file a notice of appeal. On January 2, 2002, petitioner filed the instant § 2255 petition.
II. TIMELINESS OF PETITION
Pursuant to the 1996 enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), an application for a writ of habeas corpus is subject to a one-year statute of limitations which runs from the latest of
(1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255.
The instant petition is clearly timely under § 2255(1). Petitioner pled guilty to the two count indictment on February 28, 2001. The Court accepted petitioner's guilty plea on March 1, 2001 and I sentenced her on June 13, 2001. Petitioner's conviction became final ten business days later because she failed to appeal the judgment — a right she waived in the plea agreement. See Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000) (conviction becomes final on the day the time to appeal expires). Martinez filing of this habeas on January 2, 2002 is therefore timely under AEDPA.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner asserts that her sentence should be vacated because her counsel was ineffective. Specifically, she claims that he permitted her to stipulate in the plea agreement that the amount of drugs involved were one to three kilograms of heroin, which thereby precluded her from receiving a "more favorable role adjustment. . , in the amount of four points instead of two points" as a minimal participant under U.S.S.G. § 3B 1.2. Petitioner also asserts that her counsel was ineffective on the ground that he did not request a downward departure on the basis of "extenuating family circumstances."
To prevail on a claim of ineffective assistance of counsel, a petitioner must (1) show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms"; and (2) "affirmatively prove prejudice." See Strickland v. Washington, 466 U.S. 668, 687-88, 693-94 (1984). With respect to the first prong, it is well settled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690-91. With respect to the second prong, a petitioner must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687-89. In the context of a guilty plea specifically, a petitioner must show that "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); see also United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001). Petitioner fails both prongs of the Strickland test with respect to both claims of ineffective assistance of counsel.
1. Counsel's Failure to Challenge Drug Amount and Role Adjustment at Sentencing
First, it cannot be said that petitioner's counsel rendered assistance below "an objective standard of reasonableness." Petitioner's stipulation to the amount of heroin and familial hardships were terms of the plea agreement — an agreement from which she received substantial benefit. For instance, the plea agreement capped petitioner's sentencing exposure for her narcotics conspiracy conviction at 1-3 kilograms of heroin and petitioner received a two-level minor role reduction. In addition, in lieu of the ten-year mandatory minimum that would have otherwise applied to her narcotics offense, petitioner received a sentence of 63 months imprisonment — that is, the lowest rung of the stipulated U.S.S.G. range set forth in the plea agreement. Additionally, petitioner allocuted that she was satisfied with her counsel's performance (Plea Tr. at 8), and that she understood the terms of the plea agreement. (Id. at 7-8). Additionally, petitioner neither contends that the stipulation itself was inaccurate, nor offers a suggestion as to why her counsel's advice to enter into the stipulation was in error. In light of the beneficial plea agreement that petitioner received, petitioner's counsel's compliance with the terms of the agreement — that petitioner would not seek a downward departure from the U.S.S.G. at sentencing and that petitioner was eligible only for a two-level reduction for her role in the narcotics offense — cannot be described as objectively unreasonable or ineffective.
In addition, petitioner also fails to demonstrate the prejudice prong of an ineffective assistance of counsel claim under Strickland, that is, fails to show that, but for her counsel's advice, there is a reasonable probability that she would not have pled guilty and would have instead insisted on proceeding to trial. First, with respect to the quantity of drugs which were attributed to the petitioner at sentencing — 1-3 kilograms of heroin — petitioner was arrested in October 2000 immediately after she attempted to receive approximately one kilogram of heroin from an individual she knew as "Jorge," a co-conspirator whom had been arrested shortly before petitioner. (Presentence Report ["PSR"] at 5). In her post-arrest statement, petitioner admitted that on the day of her arrest, she intended to receive approximately one kilogram of heroin from Jorge. Id. at 6. In addition, petitioner allocuted in her own words that she had received from Jorge, and had distributed to others, at least one kilogram of narcotics. (Plea Tr. at 23-24). Accordingly, the stipulation in petitioner's plea agreement, the PSR, and the Court all correctly attributed 1-3 kilograms of heroin to petitioner at sentencing, and she therefore cannot demonstrate prejudice underStrickland.
Further, petitioner also asserts that she should have received "a more favorable role adjustment. . . in the amount of four points instead of two points." (Def.'s memorandum at 4). Petitioner's claim with respect to a role reduction also lacks merit. U.S.S.G. § 3B1.2. states, in pertinent part, that
[b]ased on the defendant's role in the offense, decrease the offense level as follows:
(a) if the defendant was a minimal participant in any criminal activity, decrease by 4 levels.
(b) if the defendant was a minor participant in any criminal activity, decrease by 2 levels.
Martinez has the burden of proving her entitlement to a minimal role reduction. United States v. Carpenter, 252 F.3d 230, 234 (2d Cir. 2001). The Guidelines make clear that the "minimal role" adjustments should be used "infrequently" because they are reserved only for those defendants "who are plainly among the least culpable of those involved in the conduct of a group." U.S.S.G. § 3B 1.2, comment (n. 4). Here, petitioner has failed to adduce any facts or law in support of her claim that she could qualify for a minimal role and thus a downward departure of four offense levels. At her plea allocution, petitioner described to the Court her role in the narcotics offense in the following way:
THE COURT: Let's go on to Count 2. Tell me about what happened on — in connection with that charge.
DEFENDANT: Your Honor, people in Columbia asked me to do them a favor of sending them money.
THE COURT: And when you were asked, what did you say?
DEFENDANT: That I would.
THE COURT: And when you sent them the money, was it the proceeds of your narcotics distributions?
DEFENDANT: No, sir, because I only delivered. I didn't sell.
THE COURT: What was it that you understood you were doing this for? Did you understand that it was a — that it was unlawful to do this transfer, which I gather was by wire? Is that right?
DEFENDANT: Yes, sir.
THE COURT: And what did you understand the proceeds were from if you knew?
DEFENDANT: Narcotics, sir.
THE COURT: And the purpose of your doing this as a favor for these people who were in Colombia was to conceal the source and the ownership of these monies?
DEFENDANT: Yes, sir. (Plea Tr. 24-25).
In addition, as the government points out, petitioner's conduct with respect to the narcotics conspiracy involved several contacts with the courier from whom she was to receive a kilogram of heroin. (Gov't.'s letter memorandum at 6). I find that these facts demonstrate not only that petitioner fully understood the nature of the narcotics enterprise in which she knowingly participated, but also that petitioner played a crucial role in the conspiracy to launder the proceeds of illegal narcotics. Accordingly, in light of all the facts, it was neither unreasonable or prejudicial for petitioner's counsel not to challenge the drug amount or the role reduction at sentencing.
2. Extenuating Family Circumstances
Petitioner asserts too that she received ineffective assistance of counsel because her counsel failed to request a downward departure at sentencing based on "extenuating family circumstances." (Petition at 5). In support of this claim, petitioner adverts to her fifth grade education, her lack of understanding of English and the American judicial system, her role as caretaker of her family in both Colombia and in the United States, and her abusive relationship with men. (Id. at 6). These facts were before the Court at the time of petitioner's sentencing through both the PSR and statements made by defense counsel during sentencing. (PSR at 10-11; Sent. Tr. at 3-5). I considered these elements at that time and determined that a downward departure was not warranted. Indeed, as I informed petitioner at her sentencing:
Furthermore, because of the plea agreement and because of the fact that as sympathetic a picture as it may be everybody who commits a crime leaves behind people who are innocent and harmed by their leaving, either emotionally or materially, but the guidelines, the sentencing tools that are given to judges, really don't permit under the circumstances here or generally when that happens, does not permit the court to depart downward, that is, to reduce the sentence simply because there are innocent family members who are going to be hurt by the incarceration of a loved one. (Sent. Tr. at 6).
With respect to a finding of extraordinary family circumstances under the U.S.S.G. for which a downward departure may be warranted, § 5H1.6 states that "[f]amily ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." Although this Circuit will recognize a downward departure "in sentencing a defendant due to extraordinary family circumstances," United States v. Walker, 191 F.3d 326, 338 (2d Cir. 1999), petitioner has failed to show that her family circumstances rise to the level of "extraordinary." On the record before the Court, petitioner has failed to demonstrate that there is anything extraordinary about her family's background, health or well-being; indeed, the fact that she has cared for three dependents is simply insufficient to rise to the level of extraordinary family circumstances.See United States v. Faria, 161 F.3d 761, 763 (2d Cir. 1998) (reversing downward departure where defendant had three dependent children). Not only did petitioner's counsel apprise me of petitioner's history and family circumstances during sentencing, but I explicitly found at that time, as I do now, that such circumstances do not warrant a downward departure under the U.S.S.G.
IV. CONCLUSION
For the foregoing reasons, petitioners motion to vacate and set aside or correct he sentence pursuant to 28 U.S.C. § 2255 is denied and the petition is dismissed. The clerk court is instructed to close this matter and remove it from my docket along with any open motions.