Opinion
01 Civ. 224 (DLC) 99 Cr. 343 (DLC)
June 27, 2001
Jose Vincente de la Cruz, Pro Se.
Roberto Finzi Assistant United States Attorney.
OPINION AND ORDER
On December 12, 2000, Jose Alfredo Vicente de la Cruz ("Cruz") filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, alleging principally that his plea of guilty to illegal reentry into this country following deportation was invalid and that his attorney provided ineffective assistance of counsel in connection with his sentence. For the following reasons, the petition is dismissed.
BACKGROUND
Cruz was deported on October 2, 1997. On October 21, 1998, he was arrested in New York City. He was paroled into federal custody on March 29, 1999.
On April 7, 1999, Cruz was indicted for illegal reentry. He was represented by the Federal Defenders Office and entered a plea of guilty on July 2, 1999, following receipt of a Pimentel letter advising him that the Government computed his guidelines range at 70 to 87 months based on an offense level of 21 and a Criminal History Category of V. Prior to entering the plea, Cruz advised the Court that the Pimentel letter had been translated to him and that he was aware of the 70 to 87 months' calculation in the letter. The presentence report prepared by the Probation Office arrived at an identical computation and recommended a sentence of 70 months.
The defendant made a motion for a departure on the ground that the Criminal History Category of V over-represented the seriousness of the defendant's criminal history and his likelihood of recidivism. On November 19, 1999, the Court declined to depart, but agreed to impose a partially concurrent sentence. It sentenced Cruz principally to a term of imprisonment of 62 months and 10 days pursuant to Sentencing Guideline 5G1.3.
Cruz appealed his conviction and Cruz's counsel, appointed by this Court for Cruz's appeal, filed an Anders brief. On November 6, 2000, the conviction was summarily affirmed.
DISCUSSION
Cruz argues in his petition that the indictment was defective, that his guilty plea was invalid based upon a variety of errors, that he received ineffective assistance of counsel at the time of sentence, and that the Court made several errors at the time of sentence. None of these contentions are correct or require relief.
Cruz asserts that the indictment was not signed by the Grand Jury foreperson or the United States Attorney and did not contain a date. The original indictment bears these signatures and is endorsed with the date it was filed.
Cruz next asserts that he was not advised at the time he entered his plea that he could not withdraw the plea even if the sentence was different than what he expected to receive, and that he was not advised that his sentence would be affected by his prior convictions. The indictment recited certain prior convictions, which were described by the Court during the allocution, and the Pimentel letter, which was translated to Cruz prior to his plea, also listed the prior convictions which were the basis of the Government's computation of Criminal History Category of V. The Court specifically advised Cruz that his sentencing guidelines range would be computed in part from his criminal history record. Finally, Cruz acknowledged during the allocution that he understood that he could not withdraw his plea of guilty even if the sentence imposed on him was different from what his attorney or anyone else had told him it might be and even if it were different from what had been computed in the Pimentel letter.
In connection with his attorney's performance at sentence, Cruz contends that he did not review his presentence report because his attorney did not inform him of the importance of reviewing it, that the attorney failed to notify the Court of errors in the report, and that the attorney disregarded the fact that Cruz did not understand the proceedings because of some unidentified strong medication that he asserts he was taking at the time. At the end of the plea allocution the Court specifically advised Cruz of the importance of the presentence report and told him to read it, discuss it with his attorney, and point out any errors in it to the attorney. Cruz agreed to do so. At the sentence, the defense attorney advised the Court that she and her client had read the report, discussed it with each other, and had no objections to it. A certified interpreter translated the proceeding for Cruz. Cruz agreed to advise the Court if he had any problem understanding what was being said through the interpreter. Cruz never indicated any such problem and never contradicted his attorney's description of their review of the presentence report. Moreover, Cruz has not identified in this petition the error or errors in the report that he contends should have been brought to the Court's attention. Finally, Cruz addressed the Court at sentence and was entirely coherent and articulate. There was and is no basis to believe that he was unable to participate at the sentence in a meaningful way because of the effects of any medication.
The final series of attacks on his conviction also relates to the sentencing proceeding. Cruz asserts that the Court had an obligation to inquire into the validity of the prior convictions from which his criminal history category was computed, that the Court never explicitly found that his Criminal History Category should be V, and that the Court erred in rejecting his motion for a departure. The Court was entitled to presume that Cruz's prior convictions were valid, and Cruz did not and has not identified any basis for a successful attack on any prior conviction. Daniels v. United States, 121 S.Ct 1571, 1583(2001). The Court did specifically identify Category V during the sentencing proceeding as the defendant's Criminal History Category, and acted well within its discretion in refusing to depart from that category.
CONCLUSION
Cruz' petition is denied. The Clerk of Court shall close the case.
I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). Should the petitioner seek to appeal in forma pauperis, I find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED: