Opinion
11 Civ. 5758 (RPP), 09 Cr. 1186 (RPP)
December 08, 2011.
OPINION AND ORDER
On August 8, 2011, Petitioner Ramon Alberto Then ("Petitioner"), pro se, filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence for violations of 8 U.S.C. § 1326(a) and (b)(2), illegal reentry into the United States following conviction of an aggravated felony. On November 7, 2011, the Government responded in opposition to Petitioner's motion. For the reasons stated below, Petitioner's motion is denied. I.
Background
II. Standard of Review
Id. New York Penal Law § 220.39Id. Id. Id. Id. Id. Id. Id. Id.8 U.S.C. § 1326Id. United States v. Pimentel932 F.2d 10291034Id. Pimentel Id. pro se Simmons v. Abruzzo49 F.3d 8387Haines v. Kerner404 U.S. 519520Graham v. Henderson89 F.3d 7579
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 a 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. "Prisoners seeking habeas relief must not only prove that constitutional violations occurred at trial, but also that such errors caused substantial prejudice or a fundamental miscarriage of justice." Ciak v. United States, 59 F.3d 296, 301 (2d Cir. 1995).
III. Discussion
Petitioner's arguments are threefold: 1) that his attorney was ineffective because she failed to advise him of a "Fast-Track Program for Illegal Reentry," 2) that his attorney was ineffective because she engaged in "blatant manipulation to convince [Petitioner] to plead guilty" and, 3) that his attorney was ineffective because she promised Petitioner a sentence of only 30 months. (Pet'r Mot. at 5.)
A. Petitioner's Arguments Are Procedurally Barred
Petitioner's arguments are procedurally barred as they could have been raised on direct appeal. "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice or that he is actually innocent. Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotations and citations omitted); see also Campino v. U.S., 968 F.2d 187, 190 (2d Cir. 1992). Petitioner acknowledges that he did not file a direct appeal of the judgment entered in the underlying criminal case (see Pet'r Mot. at 2,), nor does Petitioner proffer any evidence that there was cause for failing to do so. Absent a claim that ineffective assistance of counsel or some other cognizable cause or prejudice themselves were the reason for failing to raise his claims on direct appeal, see Bousley, 523 U.S. at 622, the failure to raise on direct appeal the issues raised on collateral review precludes consideration of Petitioner's claims under 28 U.S.C § 2255. See United States v. Thorn, 659 F.3d 227, 231 (2d Cir. 2011).
B. Petitioners Arguments Are Without Merit
In any event, Petitioner's arguments are without merit. In order to prevail on a claim of ineffective assistance of counsel, Petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness and that Petitioner was prejudiced as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). First, Petitioner argues that his attorney failed to advise him of a "Fast-Track Program for Illegal Reentry." Fast-track jurisdictions allow defendants charged with illegal reentry to receive a reduced sentence in exchange for a waiver of certain rights, including the right to file pre-trial motions, appeal or collaterally attack the conviction. See United States v. Hendry, 522 F.3d 239, 240 n.1 (2d Cir. 2008). No such programs are offered in any of the districts in the Second Circuit. See United States v. Lopez, 424 Fed. App'x 51, 51 (2d Cir. 2011). Petitioner's attorney, however, was aware of fast-track programs in other jurisdictions and argued in Petitioner's sentencing letter that the Court should consider this in making its sentencing determination. (See Petitioner's Sentencing Letter dated April 28, 2010 at 6.) Petitioner's attorney mailed a copy of the sentencing letter to Petitioner at the Metropolitan Correction Center. (Id. at 7.)
Second, Petitioner argues that his attorney was ineffective for promising him a sentence of 30 months. This argument is also without merit. Even if the Court were to credit this statement as being true, Petitioner received ample warning that the Court would be the sole determiner of his sentence and that the sentencing guidelines range was 41-51 months. Petitioner was advised of this fact in the Government's Pimentel letter as well as by the Court before Petitioner entered his plea. Moreover, Petitioner explicitly denied during his plea allocution that he was made any promises or assurances by anyone in an effort to have him enter a plea of guilty. (Transcript dated Feb. 18, 2010, at 4.) A defendant's testimony during a plea allocution "carries such a strong presumption of accuracy that a district court does not, absent a substantial reason to find otherwise, abuse its discretion in discrediting later self-serving and contradictory testimony as to whether a plea was knowingly and intelligently made." United States v. Juncal, 245 F.3d 166, 171 (2d Cir. 2001); see also Tanquillo v. United States, No. 10 Civ. 5161, 2011 WL721645, at *2 (S.D.N.Y. Feb. 18, 2011).
III. Conclusion
For the reasons discussed herein, Petitioner's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 is denied.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 333-35 (1962).
IT IS SO ORDERED