Opinion
01 Civ. 1987 (HB)
August 30, 2001
OPINION ORDER
Pro se petitioner Jose Alcantara ("Alcantara") brings this petition for a writ of habeas corpus pursuant to 29 U.S.C. § 2255 for relief from his conviction entered on July 20, 2000 alter he pled guilty to being an accessory after the fact to a murder in violation of of U.S.C. § 3. Petitioner contends that this Court should grant relief on the grounds that: (1) he entered into the plea agreement involuntarily and unknowingly and (2) he had ineffective assistance of counsel as his counsel failed to file a notice of appeal. For the following reasons, the petition is dismissed.
BACKGROUND
On April 13, 2000, petitioner plead guilty to being an accessory after the fact of a murder in violation of 18 U.S.C. § 3. in his plea agreement, petitioner waived his right to appeal or "otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated Sentencing Guidelines range set forth above." At the plea hearing, the Court first instructed the Deputy to read Court 3 and 4 of the indictment into the record. Then the Court confirmed that the petitioner had confidence in his attorney's abilities and had discussed the plea agreement with his court-appointed counsel:
Petitioner was also charged, in Count Four of the indictment, with unlawfuily, intentionally and knowingly conspiring to distribute heroin and cocaine, pursuant to 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(c). In accordance with the terms of the terms of the plea agreement.. the Government dismissed this Count at sentencing.
A Spanish interpreter present at the plea.
COURT: Have you full confidence in [your attorney's] counsel and advice?
DEFENDANT: Yes.
COURT: Does your willingness to offer to plead guilty at this time result from discussions between you and your lawyer and your lawyer and the government so as to produce this Court Exhibit 2 [the Plea Agreement] that you executed yesterday or today?
DEFENDANT: Yes.
Id. at 12. The Court then asked the Assistant United States Attorney ("AUSA") to state the terms of the plea agreement and specifically advised the petitioner. "Please listen very carefully, Mr. Alcantara, because if it doesn't accord with your recollection, we will have to talk more about it." The AUSA then set forth the terms of the plea agreement, including the fact that the defendant had waived his right to appeal:
As your Honor alluded to earlier, under this agreement the defendant agrees not to appeal or collaterally attack any sentence within or below the stipulated sentencing guidelines range of 87 to 108 months, and the government agrees not to appeal any sentence within or above that stipulated sentencing guidelines range.
After the AUSA completed his exposition of the terms of the agreement, the Court asked. "Is that all in accordance with your understanding, Mr. Alcantara?," and the defendant responded, "Yes."
On July 20, 2000, the Court sentenced Petitioner to 100 months incarceration, within the stipulated guideline range of 87 to 108 months, to be followed by 3 years supervised release. During the sentencing. the Court asked the petitioner if he had read the pre-sentence report and whether or not his attorney had discussed any questions that the petitioner had about the report. Id at 2. Petitioner responded in the affirmative to both of these questions. Id. Although the Court informed the petitioner that he had a right to appeal, the AUSA stated that petitioner had in fact waived that right stating, "Your honor, the defendant has waived his right to appeal in the plea agreement," id at 26, and, in fact, no notice of appeal was filed. On February 16, 2001, Petitioner filed the instant petition pursuant to 28 U.S.C. § 2255.
A Spanish interpreter was also present at the sentencing.
DISCUSSION
I. Standard of Review
Section 2255 provides in pertinent part,
A prisoner in custody . . . 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 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.
Thus, Section 2255 does not provide a remedy for every claim of error. See United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995). Rather, collateral relief under § 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect . . ." Id. at 12.
II. Petitioner's Claims That His Plea Was Not Knowing and Voluntary
First, petitioner claims that his waiver of his right to appeal was not effective as his plea was not knowingly and voluntarily made.
It is well-established that "[k]nowing and voluntary waivers of a defendant's right to appeal a sentence within an agreed Guidelines range are enforceable." United States v. Salicido-Contreras, 990 F.2d 51 (2d Cir. 1993), cert. denied, 509 U.S. 931 (1993); see also Pardi v. United States, No. 95-2553, 1996 U.S. App. Lexis 2890 (2d Cir. Feb. 20, 1996) (holding that a waiver of a right to appeal in a plea agreement is enforceable). The Second Circuit explained the rationale for enforcement of these agreements in Salicido-Contreras:
In no circumstance, however, may a defendant, who has secured the benefits of a plea agreemenr 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.Salicido-Contreras, 990 at 53.
Here, it is clear that petitioner knowingly and voluntarily waived his right to appeal in his plea agreement. First, the waiver in the plea agreement is clear. Furthermore, at the plea, the Court instructed the government's attorney to describe in detail the terms of the plea agreement, including the waiver of petitioner's right to appeal, and specifically instructed the petitioner to listen carefully. The court then confirmed that the petitioner understood the terms. This clearly is in compliance with the requirement of Rule 11(c) of the Federal Rules of Criminal Procedure that governs the court's obligation to inform the defendant of the terms of the plea agreement. See United States v. Arias, No. 97-1613, 1998 WL 852740 (2d Cir. Dec. 8. 1998) ("Absent credible reasons for rejecting appellant's statements [at the plea that he understood the terms of his plea agreement], they establish that the plea was entered knowingly and voluntarily."). Thus, the record is clear that the petitioner did, in fact, enter into his pica agreement fully informed about its terms, and his claim on this ground must be dismissed.
III. Petitioner's Claim of Ineffective Assistance of Counsel
Petitioner also claims that his counsel was ineffective in that he failed to tile a notice of appeal.
When a petitioner has knowingly waived his right to appeal, he cannot prevail on a § 2255 petition grounded on his attorney's having failed to file a notice of appeal. See Collier v. United States, No. 99-2244, 2001 WL 540793 (2d Cir. May 21, 2001). In Collier, the petitioner attacked his sentence on the grounds that "his waiver of his right to appeal was invalid because he was not informed of that waiver by the district court, and as a consequence, his attorney's failure to file an appeal constituted constitutionally ineffective assistance of counsel." Id. at *2. The Second Circuit summarily rejected petitioner's claims. The court held that "[g]iven that Collier had made an effective waiver of his right to appeal . . . we think it self-evident that his attorney did not act unreasonably in failing to appeal." Id. at *3.
Here, petitioner's claim fails on this ground as well as the fact that the petitioner's plea was knowing and voluntary. Therefore, petitioner cannot succeed on his petition on the ground that his counsel did not file the notice of appeal. See id.; see also United States v. Checo, 205 F.3d 1325 (2d Cir. 1999) ("We have expressly rejected attempts by defendants to circumvent the waiver of the right to appeal by claiming ineffective assistance of counsel.").
As to Petitioner's somewhat confused claim that count four of the indictment never existed, it is without merit as the evidence clearly shows that petitioner was indicted under count four but that the count was dismissed on motion of the government according to the terms of the plea agreement. Sentence Tr. at 24-25.
CONCLUSION
For the above reasons, the petition for habeas corpus is denied, and the Clerk of the Court is directed to close the case.SO ORDERED