OPINION AND ORDER

JOHN F. KEENAN, United States District Court

Before the Court is the pro se motion of Petitioner Anthony Feliz ("Feliz" or "Petitioner") to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 ("§ 2255"). For the reasons outlined below, Petitioner's motion is denied.

BACKGROUND

On January 13, 2000, Feliz was arrested and charged with participating in a conspiracy to commit robbery and committing robbery. He was also charged with using a firearm in connection with that crime. At the time of his arrest, Feliz admitted to being involved in such conduct. See Compl. at 4. On January 19, 2000, a three-count Indictment was filed charging that on December 30, 1999, Feliz and a co-conspirator obstructed commerce by conspiring to and committing robbery, in violation of 18 U.S.C. § 1951 and 1952, and using a firearm in connection with the crime, in violation of 18 U.S.C. § 924(c).

After an unsuccessful effort to cooperate with the Government, Petitioner expressed dissatisfaction with his appointed counsel and was granted new counsel. On March 28, 2000, this Court appointed Gino Josh Singer to represent Feliz.

On June 20, 2000, Mr. Singer filed eight pre-trial motions, all but one of which were denied. On July 17, 2000, the Court ordered an evidentiary hearing based on the pre-trial motion to suppress Feliz's post-arrest statement on the ground that he was not properly advised of his constitutional rights. The hearing was held on September 19, 2000. On October 2, 2000, the Court denied the motion to suppress. The Court held that Feliz's confession was voluntary and that he was afforded all of his constitutional rights.

On December 18, 2000, Feliz pled guilty to all three counts of the Indictment, pursuant to a written plea agreement dated December 15, 2000. In the plea agreement, the parties stipulated that the United States Sentencing Guidelines ("U.S.S.G.") applied to this case, that Feliz's total U.S.S.G. Offense Level was 21, and that he was in Criminal History Category I. Feliz's sentencing range was stipulated as being 121 to 130 months consisting of thirty seven to forty six months for the robbery, and an additional eighty four month mandatory consecutive sentence on the firearm charge.

Feliz expressly agreed that no departure from the stipulated range was warranted, and that he would not seek either a downward departure or an adjustment of the stipulated U.S.S.G. computation. See Plea Agreement at 4. Furthermore, Feliz agreed that he would not appeal or otherwise litigate under 28 U.S.C. § 2255 any sentence within or below the stipulated U.S.S.G. range. See id. at 5.

During the December 18, 2000 plea allocution, Feliz confirmed that he understood the written plea agreement. See Trans. at 13. He further confirmed his understanding that while the Court was not bound by the agreement; his signature on the agreement waived his right to withdraw the plea and limited his right to appeal his conviction. See id.

The Probation Department then prepared a presentence investigation report ("PSR"), which adopted the Offense Level calculation contained in the plea agreement, but found that Feliz had a second state narcotics conviction, dated November 1999, that had not appeared on his criminal history sheet. Thus, unknown to the parties at the time of the plea agreement, Feliz had two criminal history points, which elevated him to Criminal History Category II. Nonetheless, the Probation Office recommended that the Court depart downward to Criminal History Category I and sentence Feliz to thirty seven months to be followed by the mandatory consecutive eighty four month sentence on Count Three.

On May 1, 2001, Feliz was sentenced. Before imposing the sentence, the Court addressed counsel and reviewed the written submissions of Feliz and his family. The Court was assured that the parties reviewed the PSR and stated any objections thereto. Feliz's criminal history was discussed, but the Court stated its intention to depart downward from Criminal History Category II to Category I. The Government objected, while Mr. Singer argued that the Court should sentence Feliz to the low end of that range in light of Feliz's age, family circumstances and the overall length of sentence.

The Court imposed a sentence of 121 months imprisonment. This consisted of a concurrent sentence of thirty seven months for Counts One and Two, which is the lowest possible sentence within the U.S.S.G. range applicable after the Court's departure, to be followed by a consecutive sentence of eighty four months for Count Three. The Court further imposed three years supervised release for Counts One and Two to run concurrently with a term of five years supervised release for Count Three. The Court ordered restitution, jointly and severally with the codefendant, in the amount of $4,300. Finally, the Court ordered three mandatory $100 special assessments, and advised Feliz that he had the right to appeal his sentence to the extent permitted by the plea agreement.

On May 8, 2001, Feliz timely filed a notice of appeal which was dismissed. See United States v. Feliz, 286 F.3d 118, 118 n. 1 (2d Cir. 2002) (noting that in a separate order the Court granted the Government's motion for dismissal of the appeal).

On June 19, 2001, Feliz filed the instant petition, which raises numerous claims based upon the alleged denial of his Sixth Amendment right to effective assistance of counsel. Specifically, Feliz argues that his attorney, Mr. Singer, (1) failed to seek a minor role adjustment; (2) failed to advise the Court of the defendant's attempted cooperation; (3) failed to properly investigate the case; (4) failed to object to the Court's alleged refusal to allow the defendant to speak at the time of his sentencing; (5) failed to protect the defendant's rights resulting in an involuntary plea; (6) failed to move pursuant to 21 U.S.C. § 924(c); (9) failed to move for a downward departure based upon coercion and duress; and (11) failed to appeal to the Second Circuit following the denial of his motion to suppress. Petitioner requests the Court vacate, set aside, or correct his sentence pursuant to § 2255.

DISCUSSION

I. Petitioner Waived His Right to File a § 2255 Petition In His Plea Agreement

Under the plea agreement, Feliz stipulated that his U.S.S.G. range was 121 to 130 months imprisonment, and explicitly waived his right to file a § 2255 motion if his sentence was within that range. Feliz's actual U.S.S.G. range was higher, but the Court downwardly departed and adopted Criminal History Category I rather than Category II. The Court sentenced Feliz within the original stipulated range and, in fact, at the lowest sentence within that range. Therefore, Feliz has waived his right to file a § 2255 motion.

It is well-settled that a defendant's knowing and voluntary waiver of his right to appeal a sentence within an agreed upon guideline range is enforceable. United States v. Djelevic, 163 F.3d 725, 728 (2d Cir. 1998); see also United States v. Difeaux, 163 F.3d 725, 728 (2d Cir. 1998) (finding that a "defendant who knowingly and voluntarily enters into a plea agreement containing a waiver of appeal rights and obtains the benefits of such an agreement is bound by the waiver provision"); United States v. Chen, 127 F.3d 286, 289-90 (2d Cir. 1997) (noting that "[t]he right to appeal may be waived as part of a plea agreement" so long as the waiver is knowing and voluntary); United States v. Rosa, 123 F.3d 94, 97 (2d Cir. 1997) (enforcing voluntary waiver even where plea agreement specified that defendant would not appeal any sentence within or below the guidelines range "as determined by the Court"); United States v. Yemitan, 70 F.3d 746, 747 (2d Cir. 1995) (finding that "defendant is bound by his undertaking in the plea agreement" when that agreement "explicitly provided that neither party would appeal a sentence which falls within the [specified] range" and the sentence did indeed fall within that range); United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993) ("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. Rivera, 971 F.2d 876 (2d Cir. 1992) (holding that defendants whose "sentences imposed fell within the range specified in their plea agreements" had "waived their right to appeal, without inquiry into the merits of defendants' contentions").

Other courts have applied this analysis in the specific context of defendants who have knowingly and voluntarily waived their right to mount § 2255 challenges to sentences that fall within a stipulated range. See. e.g.. United., States v. Carrasco, No. 99 C. 559, 1999 WL 286083, at *2 (N.D. Ill. Apr. 29, 1999) ("[T]he waiver of [petitioner's] rights under section 2255 in the plea agreement is enforceable and [petitioner's] right to bring a collateral attack pursuant to section 2255 is limited strictly to those claims which relate directly to the negotiation of the waiver of such rights.").

Here the plea agreement clearly indicated that the stipulated sentencing range was 121 to 130 months, and that Petitioner agreed to waive any litigation pursuant to § 2255 if the imposed sentence fell within that range. See Plea Agreement at 5. Furthermore, this Court specifically asked Feliz at the plea allocution whether he understood that he was giving up his right to appeal or in any other way litigate his sentence if it fell within the range stipulated by the plea agreement and Feliz responded affirmatively. See Trans. at 13.

Thus the record establishes that Petitioner knowingly and voluntarily waived his right to appeal his sentence as it fell within the stipulated U.S.S.G. range of 121 to 130 months' incarceration. Petitioner's § 2255 motion is dismissed because it is prohibited by the terms of his plea agreement.

II. Feliz's Ineffective Assistance of Counsel Claims Are Dismissed

A. The Standard for Proving Ineffective Assistance of Counsel

Even if Petitioner's claims were not barred by his plea agreement, they would be dismissed for lack of merit.

The petitioner in a § 2255 proceeding bears the burden of proof by a preponderance of the evidence. See Triana v. United States, 205 F.3d 36, 40 (2d Cir.), cert. denied, 531 U.S. 956 (2000) (finding that the "burden of proof rested on [petitioner) to show a conflict of interest by a preponderance of the evidence" in a § 2255 petition); Harned v. Henderson, 588 F.2d 12, 22 (2d Cir. 1978) ("It is, of course, well settled that in federal habeas corpus proceedings the burden of proving a constitutional claim lies with the petitioner and that the nature of that burden is the customary civil one of a preponderance of the evidence.") . A district court's factual findings in a § 2255 petition may not be overturned unless clearly erroneous. See Triana, 205 F.3d at 40.

"The benchmark for judging any . . . claim of ineffectiveness [of counsel) must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987) (citing Strickland v. Washington, 466 U.S. 668, 684-87 (1984)). To prevail on a claim of ineffective assistance of counsel, a defendant must meet both prongs of the analysis set forth in Strickland: (1) defendant must show that counsel's performance fell below the "prevailing professional norms," thus failing to meet an "objective standard of reasonableness," and (2) defendant must "show that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687-88; see also Hill v. Lockhart, 474 U.S. 52, 57 (1985) (holding that the Strickland standard applies to "ineffective-assistance claims arising out of the plea process").

In evaluating the first prong of the Strickland analysis, the reviewing court must determine whether counsel provided "reasonably effective assistance" to the defendant, "indulg[ing] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," given that effective assistance can come in many forms and "[e]ven the best criminal defense attorneys would not defend a particular client in the same way." Strickland, 466 U.S. at 689.

The second prong requires a showing that "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. The Supreme Court emphasized that "the vast majority of criminal convictions result from [guilty] pleas," therefore "new grounds for setting aside" such pleas "inevitably delay and impair the orderly administration of justice." Hill, 474 U.S. at 58 (quoting United States v. Timmreck, 441 U.S. 780, 784 (1979) (quoting United States v. Smith, 440 F.2d 521, 528-29 (7th Cir. 1971) (Stevens, J., dissenting))). Thus, in order to establish ineffective assistance of counsel in connection with a guilty plea, a defendant must show both that his counsel's performance was objectively unreasonable and that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill 474 U.S. at 59; see also Panuccio v. Kelly, 927 F.2d 106, 108 (2d Cir. 1991) (finding that although counsel failed to inform defendant of a possible intoxication defense, defendant's Sixth Amendment right to effective assistance of counsel was not violated "because his plea was knowing and voluntary and his counsel served adequately in negotiating the plea").

B. Petitioner's Claim Does Not Satisfy the Strickland Standard

1. Counsel's Performance Was Objectively Reasonable

Petitioner sets forth numerous claims to support his contention that Mr. Singer provided ineffective assistance of counsel. The Court will address each of them in turn, and ultimately reject them on the merits.

First, Feliz claims that Mr. Singer failed to seek a mitigating role reduction on behalf of Petitioner. This claim lacks merit because the Complaint clearly indicates that Feliz agreed to the robbery, knew that his co-conspirator was carrying a gun to be used in the commission of the robbery, and participated in forcing the victim to relinquish the proceeds of his business. Given these uncontested facts, Mr. Singer's failure to seek a mitigating role reduction for his client cannot be considered ineffective assistance.

Second, Feliz claims that Mr. Singer failed to advise the Court that Feliz attempted to cooperate. Petitioner was unable to provide the Government with information of value, and the Government informed Mr. Singer that it did not intend to enter into a cooperation agreement with Petitioner. Mr. Singer had no obligation to inform the Court of Feliz's futile attempts to cooperate.

Third, Feliz claims that Mr. Singer did not investigate the victim's business to determine if it was legitimate, presumably for purposes of the Hobbs Act. The Hobbs Act prohibits conduct that affects commerce "in any way or degree". 18 U.S.C. § 1951(a). Thus, "it is well established that the burden of proving such a nexus is 'de minimis.'" United States v. Farrish, 122 F.3d 146, 148 (2d Cir. 1997), cert. denied, 522 U.S. 1118 (1998). Indeed, the "possibility or potential of an effect on interstate commerce, not an actual effect," is all that is necessary to prosecute under the Hobbs Act. United States v. Jones, 30 F.3d 276, 285 (2d Cir.), cert. denied, 513 U.S. 1028 (1994). Given the "de minimis" standard and the facts of this case, it is indisputable that the Government could have successfully satisfied the interstate commerce element of the Hobbs Act, and Mr. Singer was not ineffective for failing to challenge the Government's ability to do so.

Fourth, Feliz claims that Mr. Singer failed to object to the Court's alleged refusal to allow Feliz to speak at the time of sentencing. This claim is directly contradicted by the record. The sentencing minutes indicate that Petitioner did speak at the time of his sentencing.

Fifth, Feliz claims that Mr. Singer's failure to protect Petitioner's rights during the plea negotiations resulted in an involuntary plea. The plea transcript indicates that the Court insured that Feliz was competent to enter a guilty plea, understood the Indictment, and understood the plea agreement. Feliz indicated that he had no questions, and confirmed that he was pleading voluntarily and not as a result of any promises or threats. He has no basis for now claiming that his plea was involuntary, and entered into due to ineffective assistance of counsel.

Sixth, Feliz claims that Mr. Singer failed to object under 21 U.S.C. § 851(c)(1) to the use of Petitioner's prior convictions to enhance his sentence. Mr. Singer did not refer to the statute because the statute only applies to the use of prior felony information to increase the mandatory minimum sentences in narcotics offenses.

Seventh, Feliz claims that Mr. Singer failed to advise Petitioner that entering the plea agreement constituted a waiver of the right to appeal under certain circumstances. This claim is directly contradicted by the minutes of the plea proceeding, during which Feliz affirmed to the Court that he understood that he was waiving his right to appeal. See Plea Trans. at 13.

Eighth, Feliz claims that Mr. Singer did not obey his instruction to challenge the gun charge under 18 U.S.C. § 924(c). At his plea allocution, Petitioner acknowledged that he knew that his co-conspirator brought a gun to the robbery, and that the gun was used to assault one of the victims. See id. at 15-16. Thus, there was no basis for a challenge of the gun charge, and the failure to bring the challenge cannot be offered as evidence of ineffective assistance of counsel.

Ninth, Feliz claims that Mr. Singer did not move for a downward departure based upon coercion and duress. The plea agreement, knowingly and voluntarily entered into by the Petitioner, clearly precludes Mr. Singer from making any downward departure motions. See Plea Agreement at 4.

Tenth, Feliz claims that Mr. Singer left Petitioner alone with his co-defendant, who coerced Petitioner into entering the plea agreement. Again, the plea transcript indicates that the Court ensured that Feliz understood the plea agreement. Feliz indicated that he had no questions, and confirmed that he was pleading voluntarily and not as a result of any promises or threats. He has no basis for now claiming that his plea was involuntary, and entered into due to coercion by his codefendant.

Last, Feliz claims that Mr. Singer failed to appeal after his suppression motion was denied. However, Mr. Singer did file a timely notice of appeal in the Second Circuit on May 8, 2001. Mr. Singer subsequently submitted a brief, pursuant to Anders v. California, 386 U.S. 738 (1967), stating that based on a review of the record, there are no non-frivolous issues to be raised on this appeal, and requesting that he be relieved as counsel. The Court granted this motion. See United States v. Feliz, 286 F.3d 118, 118 n. 1 (2d Cir. 2002).

Because none of Petitioner's ineffective assistance claims meet the first prong of the Strickland standard for proving ineffective assistance of counsel, Petitioner's § 2255 motion is denied.

2. Feliz Was Not Prejudiced

Assuming that Feliz' counsel's performance fell below an objective standard of reasonableness, which it did not as discussed above in detail, his claim still must fail because he cannot demonstrate that he suffered any prejudice.

When a defendant has pleaded guilty and later alleges ineffective assistance of counsel, he must demonstrate that, but for counsel's ineffectiveness, he would have plead not guilty and gone to trial. See Hill., 474 U.S. at 59; Panuccio, 927 F.2d at 108.

As the Second Circuit has noted, "an evaluation of ineffective assistance of counsel usually begins with an examination of the strength of the Government's case." United States v. Helgesen, 669 F.2d 69, 71 (2d Cir. 1982). As described in the Complaint, the evidence against Feliz included (1) testimony of the victims themselves; (2) witnesses who saw the robbers drive up to the building located at 1840 Phelan Place, Bronx, New York, park their car, and then flee shortly thereafter; (3) the results of fingerprint analysis from the car used by the robbers revealing that fingerprints belonging to an individual by the name of "Anthony Felix," later identified as Feliz, were on the car; (4) the victim's identification of a photograph of "Anthony Felix" as one of the robbers; and (5) the defendant's own post-arrest confession. The Second Circuit has further held that when the evidence of guilt is overwhelming, it is not necessary for the Court to address the merits of an ineffective assistance of counsel claim. See Strouse v. Leonardo, 928 F.2d 548, 556 (2d Cir. 1991); United States v. Simmons, 923 F.2d 934, 956 (2d Cir. 1991); United States v. Reiter, 879 F.2d 639, 645 (2d Cir. 1990). The evidence against Feliz was clearly overwhelming.

Further, by pleading guilty Feliz received significant benefits, including a three-point reduction for acceptance of responsibility and no enhancement for obstruction. No prejudice exists when a plea agreement lessens the severity of the sentence the defendant would face if convicted at trial. See Moran v. United States, No. 96 Civ. 3657, 1998 WL 54616, at *5 (S.D.N.Y. Feb. 10, 1998). The Court holds that Feliz was not prejudiced and his ineffective assistance of counsel claim fails.

CONCLUSION

Petitioner's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his conviction and sentence is hereby denied. Because the Petitioner has not made a substantial showing of denial of a constitutional right, a certification of appealability will not issue. United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997) . 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. See Coppedge v. United States, 369 U.S. 438 (1962)

This case is closed, and the Court directs the Clerk of Court to remove this case from the Court's active docket.