REPORT AND RECOMMENDATION TO THE HONORABLE JED S. RAKOFF

FRANK MAAS, United States Magistrate Judge

I. Introduction

Petitioner Amado Perez ("Perez") brings this pro se proceeding pursuant to 28 U.S.C. § 2255 in an effort to set aside the sentence imposed by Your Honor following Perez's plea of guilty to a charge of conspiracy to distribute "crack" cocaine. The Respondent has now moved to dismiss the proceeding on several grounds. For the reasons set forth below, the Respondent's motion should be granted and this proceeding dismissed.

II. Background

On July 28, 1998, Perez was named in Indictment 98 Cr. 808. The indictment charged him with conspiring to distribute cocaine and "crack" cocaine (Count One), as well as the distribution of "crack" cocaine (Count Eight). (See Docket No. 74). Thereafter, on December 11, 1998, in accordance with a written agreement, Perez entered a plea of guilty to the conspiracy charge on the understanding that the second count against him would be dismissed at the time of sentencing. (Pet. Attach. at 3).

The plea agreement between Perez and the Government contained a detailed Sentencing Guidelines stipulation pursuant to which Perez agreed not to appeal or otherwise contest any sentence within or below the range of 121 to 151 months. (Id. at 4-5; Gov't Mem. at 2). This stipulated Guidelines range was based upon the parties' agreement that Perez's offense "involved the distribution of at least 50 grams but less than 150 grams of `crack' cocaine;" that he was a "supervisor" of criminal activity involving "five or more participants," which required a three-level enhancement of the base offense level; and that his timely plea and acceptance of responsibility entitled him to a reduction of three levels. (Pet. Attach. at 4-5). Perez further agreed that he would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated sentencing Guidelines range." (Gov't Mem. at 3).

During the course of the allocution, Perez's counsel indicated that the plea agreement had been translated for Perez "several times . . ., including partially today." (P. 9). In addition, Perez acknowledged that he had discussed the agreement with his counsel and that he agreed to its "binding" terms. (Id. at 17-18).

On April 23, 1999, Your Honor sentenced Perez to 121 months in prison, which sentence was at the bottom of the stipulated Guidelines range and was recommended by the Probation Department. (S. 2, 5). The judgment of conviction was filed on April 26, 1999. (Docket No. 143). At the conclusion of the sentencing, Your Honor advised Perez that he had the right to appeal his sentence, provided that he filed a notice of appeal within ten days. (Id. at 7). Perez never filed such a notice. (Pet. ¶ 9).

Although Perez's motion is undated, the attached memorandum of law bears the date August 10, 2001. (See Docket No. 1). Perez's motion papers were stamped by the Court's Pro Se Office as having been received on January 7, 2002. (Id.). Thereafter, the papers were filed with the Clerk of the Court on January 28, 2002. (Id.).

Liberally construed, Perez's motion papers suggest that he was sentenced improperly on the basis of "the entire drug amount in the case," and received an enhanced sentence as a "manager" without any specific findings of fact by the Court. (Pet. Attach. 1, 13-17). Perez also alleges that his appointed counsel was ineffective because he failed to object to these sentencing errors or file an appeal. (Id. at 11-13, 18-20). Perez contends, without explanation, that he first learned of these errors on June 20, 2001. (Id. at 8).

On March 22, 2002, the Respondent moved to dismiss this proceeding as: (a) time-barred under 28 U.S.C. § 2255(1); (b) procedurally barred by Perez's failure to raise his objections on direct appeal; and (c) violative of an express waiver of appeal in the plea agreement. (Docket No. 258). On July 2, 2002, Perez filed a reply. (Docket No. 262).

III. Discussion

A. Statute of Limitations

Insofar as relevant, Section 2255 provides that:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —

(1) the date on which the judgment of conviction becomes final;

. . . .

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

Pursuant to Rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure, Perez had ten calendar days from the entry of the judgment of conviction to file a notice of appeal. Having failed to file any notice within that period, his conviction became final on May 6, 1999. See, e.g., Moore v. United States, No. 00 Civ. 4560, 2001 WL 253432, at *8 (S.D.N.Y. Mar. 15, 2001) (Peck, Mag. J.); Martinez v. United States, No. 00 Civ. 1214, 2000 WL 863121, at *1 (S.D.N.Y. June 28, 2000) (Cote, J.). Accordingly, to be timely, Perez's motion under Section 2255 had to be filed by May 6, 2000. Perez obviously failed to meet this statutory deadline.

Perez maintains that his petition should not be treated as time-barred because his counsel failed to inform him that he had entered into a stipulation that subjected him to an enhanced sentence. (Perez Reply Mem. at 1). Under Section 2255(4), the one-year limitation period is extended when a movant could not have discovered the facts upon which his claim is based "through the exercise of due diligence." Accordingly, the Court must determine "when a duly diligent person in [Perez's] circumstances" would have discovered the relevant facts. Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000).

During his plea, Perez was present when his counsel represented to the Court that the plea agreement had been translated into Spanish for him on several occasions. (P. 9). Moreover, Perez himself stated under oath that he was aware that the agreement contained a Guidelines calculation and that he had discussed both the agreement and that calculation with his counsel. (Id. at 16-17). He also acknowledged his awareness that the agreement "calculate[d] a range of 121 months to 151 months" for his sentence. (Id. at 19). Finally, Perez has conceded that the basis for this calculation was set forth in his plea agreement. (Pet. Attach. at 4-5). Given these facts, Perez unquestionably was aware by the date of his plea that the Government alleged, and his counsel agreed, that the conspiracy charged in Count One of the indictment "involved the distribution of at least 50 grams but less than 150 grams of `crack' cocaine" and that he was a "supervisor" of criminal activity "involving five or more participants." (Id. at 4). It follows that Perez had all of the information necessary to file his present motion prior to his sentencing. His effort to extend the one-year statute of limitations on the theory that he was unaware of the true facts for an extended period of time is therefore unavailing.

B. Waiver of Appeal

In his plea agreement, Perez also promised not to appeal or litigate under Section 2255 "any sentence within or below the stipulated sentencing Guidelines range." (See Gov't Mem. at 2). Such an agreement is plainly enforceable. See, e.g., Pena v. United States, 201 F. Supp.2d 231, 233-34 (S.D.N.Y. 2002) (Leisure, J.) (citing United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001)). As the Second Circuit explained in United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993) (per curiam),

[i]n 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.

As the Court previously found, Perez was competent to enter a plea of guilty and did so knowingly and voluntarily. (P. 9, 25). Perez also stated under oath during his allocution that he would be bound by the terms of his plea agreement. (Id. at 18). Finally, he did not dispute his counsel's representation that the agreement had been read to him a number of times. (Id. at 9). In these circumstances, it is clear that Perez has waived the right to institute this proceeding.

IV. Conclusion

Perez's present motion is untimely and barred by the terms of his plea agreement. The Respondent's motion therefore should be granted and this proceeding dismissed.