Opinion
02 Civ. 5603 (SWK)
May 15, 2003
OPINION AND ORDER
Petitioner pro se Melbin Garcia pled guilty to one count of participating in a conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846. He was sentenced to a term of imprisonment of 135 months. Garcia now moves pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence on the ground that he was denied effective assistance of counsel. For the reasons set forth below, Garcia's motion is denied.
I. BACKGROUND
A. Garcia's Offense Conduct
On or about August 17, 1999, a federal grand jury sitting in the Southern District of New York returned a three-count indictment against Garcia and several others. Garcia was only charged in Count One, which accused him of Participating in a conspiracy to distribute and possession with intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846.
The prosecution arose out of the transportation of 170 kilograms of cocaine by truck from New Orleans to the New York City area. Garcia was one of two drivers who drove the truck to the New York City area.
B. Plea Proceedings
Garcia's guilty plea was entered pursuant to a written plea agreement. In the plea agreement, the parties stipulated that Garcia's base offense level was thirty-eight pursuant to U.S.S.G. § 2D1.1(c)(1). The parties also stipulated that two separate reductions in the offense level were warranted. First, a two-level reduction was warranted because Garcia satisfied the "safety-valve" provision set forth in U.S.S.G. § 5C1.2. Second, an additional three-level reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility was agreed to by the parties. The parties further stipulated that Garcia could seek a two-level reduction on the basis that he was a minor participant pursuant to U.S.S.G. § 3B1.2(b). The Government, however, reserved the right to argue that Garcia was not entitled to such a reduction. The parties further agreed that Garcia could seek a downward departure pursuant to U.S.S.G. § 5K2.0 based upon the allegedly aberrant nature of his conduct. The Government again reserved the right to oppose such a motion. The parties thus agreed that the applicable Sentencing Guidelines offense level was either thirty-one or thirty-three, depending on whether the Court deemed Garcia a minor participant pursuant to U.S.S.G. § 3B1.2. Finally, the parties stipulated that Garcia had a criminal history category of I. Based upon these agreements, the parties agreed that Garcia's stipulated Sentencing Guidelines range was 108 to 168 months. Garcia stipulated that he would he would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the Stipulated Guidelines Range of 108 to 168 months." Plea Agreement, dated October 10, 2000, at 5.
On October 13, 2000, Garcia plead guilty to Count One of the indictment, conspiring to sell more than five kilograms of cocaine in violation of 21 U.S.C. § 846. During the plea proceeding held before Magistrate Judge Kevin Nathaniel Fox, Garcia withdrew his prior plea of not guilty as to Count One and entered a plea of guilty as to that count. At that time, Magistrate Judge Fox informed Garcia of the nature of the charge to which Garcia was offering to plead guilty and of the possible penalties associated with this offense. Magistrate Judge Fox advised Garcia, among other things, that he had the right to continue to plead not guilty and that if he did so, he would have a right to trial by jury in which he was represented by counsel and where he had the opportunity to confront and cross-examine witnesses on his own behalf. Magistrate Judge Fox sought and received assurances from Garcia that he understood and appreciated the nature and content of the plea agreement and that he entered it knowingly and voluntarily. Magistrate Judge Fox confirmed that Garcia wished to plead guilty because he was, in fact, guilty of the charged offense, and that Garcia understood by doing so he was waiving his to appeal a sentence within or below the stipulated Guidelines range or file a petition for collateral relief pursuant to 28 U.S.C. § 2255.
C. Sentencing Proceedings
Garcia's sentencing hearing was held before this Court on July 18, 2001. At the hearing, Garcia acknowledged that he had reviewed the Presentence Report and spoken with his attorney about it. The Court also heard argument from the parties with respect to Garcia's motion for a downward departure based on the allegedly aberrant nature of his conduct pursuant to U.S.S.G. § 5K2.0, and Garcia's motion for a two-level reduction based upon his alleged minor role in the drug conspiracy pursuant to U.S.S.G. § 3B1.2. The Court then provided Garcia with an opportunity to speak on his own behalf. Following Garcia's statement, the Court recognized that it had the authority to depart on the basis of aberrant conduct and to reduce Garcia's offense level based upon his purported minor participation in the offense. The Court determined, however, that neither a downward departure nor a reduction for Garcia's role in the offense was warranted. The Court then ordered Garcia to serve a sentence of 135 months, followed by a five-year term of supervised release.
Garcia now moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence on the ground that he received ineffective assistance of counsel.
II. DISCUSSION
A. Waiver of Rights
The Court finds that the instant motion is procedurally barred because Garcia knowingly and voluntarily waived his appellate rights and § 2255 rights as to any sentence that did not exceed 168 months. Because the Court imposed a sentence of 135 months, Garcia may not proceed on the instant motion. The Second Circuit has repeatedly stated that a defendant who "knowingly and voluntarily" waives his right to appeal in a plea agreement "and obtains the benefits of such an agreement is bound by the waiver provision." United States v. Difeaux, 163 F.3d 725, 728 (2d Cir. 1998); see also United States v. Djelevic, 161 F.3d 104, 106-07 (2d Cir. 1998). The same analysis applies to a § 2255 motion. See Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001) (upholding the effectiveness of plea agreement's waiver provision of the right to attack conviction by petition under Section 2255).
The instant record reflects that Garcia knowingly and voluntarily waived the right to appeal or otherwise contest under § 2255 any sentence that did not exceed 168 months. The plea agreement was explicit and unambiguous: Garcia stipulated that he would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the Stipulated Guidelines Range of 108 to 168 months." Plea Agreement, dated October 10, 2000, at 5. In addition, at the plea allocution, Magistrate Judge Fox confirmed that Garcia had read and signed the agreement, discussed it with his counsel and understood its terms. Garcia attested that he understood that the plea agreement barred him from contesting any sentenced imposed by the Court that was within or below the stipulated Guideline sentence on appeal or pursuant to § 2255.
In sum, the Court finds that Garcia was fully apprised of his rights; understood the consequences of his actions; and thoughtfully entered his plea. Accordingly, because the Court sentenced Garcia to 135 months, a sentence within the stipulated range of 108 to 168 months, Garcia has waived his right to bring the instant petition:
B. Ineffective Assistance of Counsel
Even if Garcia had not voluntarily waived his right to appeal or proceed pursuant to § 2255, the Court finds that his claim for ineffective assistance of counsel is without merit. To prevail on a claim of ineffective assistance of counsel, the petitioner must show (1) "that counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms" and (2) that there is a reasonable probability that but for counsel's unprofessional performance, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 693-94 (1984). With respect to the first prong of Strickland, there is a strong presumption that counsel's conduct falls within the "wide range of reasonable professional assistance." Clark v. Stinson, 214 F.3d 315, 321 (2d Cir. 2000) (quotation omitted). Although this presumption can be overcome, the burden of proving that counsel's performance was unreasonable lies with the petitioner. See Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
1. Knowing and Voluntary Waiver of Appellate Rights
Garcia asserts that he did not make a knowing and voluntary waiver of his appellate rights. The Court finds that this assertion is without merit. Magistrate Judge Fox conducted a thorough plea allocution, during which Garcia — with the assistance of an interpreter — indicated that he understood his rights, had discussed the plea agreement and sentencing guidelines with his attorney, and was pleading guilty of his own free will. Transcript of Plea Hearing held on October 13, 2000, at 9-15. Specifically as to the waiver of appellate rights, Garcia responded "Yes" to Magistrate Judge Fox's specific question of "Do you understand that among other things, the letter indicates that you have restricted your ability to appeal from or collaterally attack in the judgment of conviction or sentence that might be imposed upon you in connection with your tender of a plea of guilty?" Id. at 15. The Court is convinced that Garcia's plea was knowing and voluntary, and no prejudice has been shown. Garcia has therefore failed to establish an ineffective assistance of counsel claim based upon his claim that he did not knowingly and voluntarily waive of his appellate rights.
2. Failure to File Notice of Appeal
Garcia claims that counsel's failure to file an appeal, despite his request, constitutes ineffective assistance. While such may be true under certain circumstances, see Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), the facts of this case dictate a different result.
Garcia waived his right to an appeal and is therefore precluded from asserting an ineffective assistance claim based upon counsel's failure to file a notice of appeal. See Lopez v. United States, No. 01 Civ. 7398, 2002 WL 1471540, at *3 (E.D.N.Y. May 15, 2002); see also Polonio v. United States, 01 Civ. 11817, 2002 WL 31627978, at *5 (S.D.N.Y. Nov. 21, 2002) (finding failure to appeal not ineffective where petitioner had waived right to appeal); Rosa v. United States, 170 F. Supp.2d 388, 408 (S.D.N.Y. 2001) (finding petitioner's trial counsel "was not ineffective in failing to file a notice of appeal because no appeal could be pursued under the Plea Agreement"); Castro v. United States, No. 00 Civ. 1191, 2000 WL 1373134, at *1 (N.D.N.Y. Sept. 19, 2000) ("Because Petitioner waived his right to file an appeal, he cannot claim ineffective assistance of counsel for failure to file such an appeal."). Because Garcia was sentenced within the stipulated sentencing range and he had expressly waived his right to appeal, counsel's failure to file a notice of appeal was not objectively unreasonable. See Lopez, 2002 WL 1471540, at *3. Additionally, Garcia has suffered no prejudice, as he had already forfeited his right to such an appeal. Id.
3. Sentencing Motions
Garcia also claims that his counsel was ineffective because the Court did not grant the two motions Garcia advanced prior to sentencing. This claim is also without merit. The plea agreement permitted Garcia to argue for a minor role adjustment and for a downward departure based on the allegedly aberrant nature of his conduct. Counsel, both in writing and orally, argued vigorously and effectively on behalf of Garcia. The Court's decision not to grant either motion does not render such performance constitutionally deficient. Furthermore, Garcia has not established that he was prejudiced by counsel's conduct. Accordingly, the Court finds that Garcia has failed to sustain his burden that he received ineffective assistance of counsel.
III. CONCLUSION
For the reasons set forth above, Garcia's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence is denied.
The Court further declines to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of federal right and appellate review is, therefore, not warranted. See 28 U.S.C. § 2853; Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). Should the petitioner seek to appeal in forma pauperis, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal of this Order would not be taken in good faith. See Coppege v. United States, 369 U.S. 438, 444 (1962).
SO ORDERED.