Opinion
04 Civ. 7985 (KMW).
December 20, 2007
OPINION AND ORDER
Petitioner Samuel W. Lindsey brings this pro se petition, pursuant to 28 U.S.C. § 2255, asking the Court to vacate, set aside, or correct his sentence. Petitioner asserts that (1) his guilty plea to the underlying indictment is invalid, and (2) he was denied effective assistance of counsel. For the reasons set forth below, the petition is denied.
BACKGROUND
On August 6, 2001, Petitioner was charged in five counts of a sixteen count indictment with violations of 18 U.S.C. §§ 1202, 1203, 1951, 1952, 922, and 924(c). These charges relate to the armed robbery and hostage-taking of Roman and Bertha Sosinsky in May 1998. On July 22, 2003, Petitioner entered into a plea agreement ("Plea Agreement") in which the parties agreed that Petitioner would plead guilty to Count Eight of the indictment, and the Government would dismiss any open Counts against Petitioner. The parties also stipulated to a sentencing range of 78-97 months imprisonment. The Plea Agreement also contained a waiver provision, whereby Petitioner explicitly agreed that he would "not file a direct appeal from, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Sentencing Guidelines Range of 78-97 months." (Plea Agreement 5.)
On July 24, 2003, and pursuant to the Plea Agreement, Petitioner pleaded guilty before Magistrate Judge Michael H. Dolinger to Count Eight of the indictment, which charged him with conspiracy to rob the Sosinskys in violation of 18 U.S.C § 1951. On December 2, 2003, the Court sentenced Petitioner to 78 months imprisonment. Petitioner did not appeal his sentence. On or about September 22, 2004, Petitioner timely filed this pro se petition pursuant to 28 U.S.C. § 2255 ("Section 2255").
DISCUSSION I. THE SECTION 2255 STANDARD
Section 2255 allows a convicted person being held in federal custody to petition the sentencing court for an order vacating, setting aside, or correcting his sentence. 28 U.S.C. § 2255 (2007). Relief under Section 2255 is available "only for constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a `fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). As Petitioner is proceeding pro se, the Court shall construe his submissions to raise the strongest arguments suggested. See Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995).
Petitioner seeks relief under Section 2255, arguing that (1) his guilty plea is unenforceable because he did not understand the nature of the charges filed against him and consequences of his plea, and (2) he was denied effective assistance of counsel during pretrial proceedings and sentencing.
Petitioner also claims that his sentence is unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004) because certain facts upon which his sentence was based were not found by a jury beyond a reasonable doubt. (Pet. 5-6.) But Blakely addressed the constitutionality of Washington State's sentencing scheme, and not the United States Sentencing Guidelines ("Sentencing Guidelines"). Blakely is therefore inapplicable to Petitioner's case. To the extent that Petitioner's arguments can be construed as making a claim under United States v. Booker, 543 U.S. 220 (2005), which did address the constitutionality of the Sentencing Guidelines, the Second Circuit has made clear that Booker does not apply retroactively to cases such as Petitioner's on collateral review. See United States v. Guzman, 404 F.3d 139, 144 (2d Cir. 2005).
II. PETITIONER WAIVED HIS RIGHT TO CHALLENGE HIS SENTENCE PURSUANT TO SECTION 2255
The waiver provision contained in the Plea Agreement, by which Petitioner waived his right to challenge his sentence pursuant to Section 2255, forecloses Petitioner's claims of relief. A defendant's knowing and voluntary waiver of his right to bring a petition pursuant to Section 2255 is generally enforceable. See Frederick v. Wardon, Lewisburg Corr. Facility, 308 F.3d 192, 195-96 (2d Cir. 2007); Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001) (per curiam). Such a waiver is unenforceable, however, where defendant was denied effective assistance of counsel in connection with the negotiation and execution of the plea agreement containing the waiver. See United States v. Muniz, 360 F. Supp. 2d 574, 577 (S.D.N.Y. 2005) (citing United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001)). Moreover, such a waiver does not preclude claims that the proceedings were jurisdictionally defective, or that they suffered from structural error. See Sapia v. United States, 433 F.3d 212, 216 (2d Cir. 2005); United States v. Rogue, 421 F.3d 118, 123 (2d Cir. 2005).
Here, because the record demonstrates that (1) Petitioner's waiver was knowing and voluntary, (2) Petitioner received effective assistance of counsel in connection with the Plea Agreement, and (3) the proceedings were free of jurisdictional defects and structural errors, Petitioner's waiver should be enforced. See, e.g., Muniz, 360 F. Supp. 2d at 577.
A. PETITIONER'S WAIVER WAS KNOWING AND VOLUNTARY
A defendant's waiver of his right to file a Section 2255 petition is knowing and voluntary where the defendant "fully understood the consequences of the waiver," and his decision was not "the product of actual or threatened physical harm, mental coercion overbearing the defendant's will, or the defendant's sheer inability to weigh his options rationally." Rogue, 421 F.3d at 122 (internal quotations and citations omitted).
The record establishes that Petitioner's waiver was knowing and voluntary. During the plea allocution, Petitioner stated that he read the waiver provision, reviewed it with counsel, fully understood its terms, and pleaded guilty uninfluenced by any threats. (Plea Tr. 8:2 — 9:17). Magistrate Judge Dolinger specifically asked Petitioner whether he understood that by agreeing to the waiver provision, he was "giving up his right to complain." (Plea Tr. 10:14 — 10:19.) Petitioner responded, "Yes, sir." (Plea Tr. 10:20.) The Court may rely on Petitioner's on-the-record statements regarding his understanding of the waiver provision. Sharpley v. United States, 499 F. Supp. 2d 208, 210 (N.D.N.Y. 2007); Muniz, 360 F. Supp. 2d at 577. Thus, the Court concludes that Petitioner's waiver of his right to file a Section 2255 petition was knowing and voluntary.
B. PETITIONER RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL IN CONNECTION WITH THE PLEA AGREEMENT
To prove that Petitioner was denied effective assistance of counsel in connection with the Plea Agreement, Petitioner must show that (1) his lawyer's performance fell below an "objective standard of reasonableness," and (2) he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 688, 692 (1984);see also Kieser v. New York, 56 F.3d 16, 18 (2d Cir. 1995). The Court need not "address both components of the [Strickland] inquiry if the defendant makes an insufficient showing on one."Strickland, 466 U.S. at 697. Liberally construed, Petitioner's submissions can be read to assert that he was denied effective assistance of counsel because his lawyer failed to (1) properly evaluate the evidence supporting his guilt, and (2) object to the inclusion of certain sentencing enhancements in the Plea Agreement. Petitioner's arguments are unavailing.
First, counsel's evaluation of the evidence against Petitioner was reasonable. Petitioner contends that counsel failed to comprehend that testimony given by the Sosinskys in the separate criminal trial of Petitioner's co-conspirators shed doubt on Petitioner's guilt. However, even assuming that Petitioner's interpretation of the Sosinskys' testimony is correct, there was still ample evidence on record supporting Petitioner's guilt. Testimony from another co-conspirator provided specific, detailed information linking Petitioner to the planning and execution of the offenses charged. (Opp'n 48-52.) Moreover, additional testimony from the Sosinskys, and recorded conversations between other co-conspirators independently corroborate Petitioner's role in the conspiracy. (Opp'n 51-52.) On this evidence, it was reasonable for counsel to conclude that the Government had a strong case against Petitioner. Therefore, far from being ineffective, counsel acted appropriately in negotiating a plea agreement, which afforded Petitioner many tangible benefits. See Jimenez v. United States, No. 00 Civ. 7114, 2001 WL 699060, at *5 (S.D.N.Y. Jun. 20, 2001) (noting that courts have refused to find ineffective assistance of counsel where the defendant received "tangible benefits from the plea agreements negotiated by counsel") (citing Panuccio v. Kelly, 927 F.2d 106, 109 (2d Cir. 1998)).
Second, counsel's decision to refrain from objecting to the sentencing enhancements included in the Plea Agreement was similarly reasonable. The sentencing enhancements at issue include the use of a firearm, the abduction of a victim, and the amount of the loss. (Plea Agreement 2.) As with the evidence supporting Petitioner's guilt, there was more than enough evidence on record to support the inclusion of these sentencing enhancements in the Plea Agreement. (Opp'n 52-58.) Counsel's decision to forgo objecting to their inclusion was therefore reasonable. See Flores v. Demski, 215 F.3d 293, 297 (2d Cir. 2000) (finding that counsel's performance may not be deemed ineffective "merely because he did not pursue a concededly frivolous substantive claim"); cf. Strickland, 466 U.S. at 689 (affording performance of counsel a "strong presumption" of reasonableness in the context of strategic decisions).
Petitioner's argument that these sentencing enhancements are invalid because they are based on "dismissed counts" of the underlying indictment is a non-sequitur. (Pet. 19.) Although Petitioner is correct that Count Eight — the Count to which he pleaded guilty — charged him only with conspiracy to rob, Petitioner can be held accountable at sentencing for the acts of his co-conspirators where the acts were "within the scope of the defendant's agreement" and "they were foreseeable to the defendant." United States v. Studley, 47 F.3d 569, 574 (2d Cir. 1995). In this case, there was ample evidence that the conduct underlying the sentencing enhancements at issue was both within the scope of the conspiracy and foreseeable to Petitioner. (Opp'n 52-58.)
The Court therefore concludes that Petitioner received effective assistance of counsel in connection with the Plea Agreement.
C. THE PROCEEDINGS WERE FREE OF JURISDICTIONAL DEFECTS AND STRUCTURAL ERRORS.
The waiver contained in Petitioner's Plea Agreement does not waive claims that the proceedings were jurisdictionally defective, or that they suffered from structural error. Jurisdictional defects "deprive the court of its power to act,"United States v. Macklin, 523 F.3d 193, 196 (2d Cir. 1975), and therefore cannot be waived as a general matter. See United States v. Calderon, 243 F.3d 587, 590 (2d Cir. 2001) (noting that jurisdictional defects "affect the basic authority of a court to hear and decide a case"). Structural errors are errors that "so fundamentally undermine the fairness or the validity of the [proceedings] that they require voiding [the] result regardless of identifiable prejudice." Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir. 1996). Claims based on structural errors also cannot be waived.
Structural errors recognized by the Supreme Court include the complete deprivation of counsel, a biased trial judge, racial discrimination in the selection of a grand jury, denial of self-representation at trial, denial of a public trial, and a defective reasonable doubt instruction. See Neder v. United States, 527 U.S. 1, 8 (1999).
Petitioner contends that the proceedings were jurisdictionally defective, or otherwise suffered from structural error because (1) the sentencing enhancements included in his Plea Agreement were based on "dismissed counts" of the underlying indictment, (2) the indictment was not signed by the grand jury foreperson, and (3) the Court failed to accept his guilty plea, which was taken by Magistrate Judge Dolinger. Assuming arguendo that these allegations assert claims of jurisdictional defect or structural error, Petitioner's arguments are nonetheless meritless.
First, as discussed above, the sentencing enhancements included in Petitioner's Plea Agreements were based on Petitioner's conduct and the conduct of his co-conspirators. Petitioner can be held accountable at sentencing for the acts of his co-conspirators where the acts were "within the scope of the defendant's agreement" and "they were foreseeable to the defendant." United States v. Studley, 47 F.3d 569, 574 (2d Cir. 1995). There was ample evidence that the conduct underlying the sentencing enhancements in the Plea Agreement were both within the scope of the conspiracy and foreseeable to Petitioner. (Opp'n 52-58.) Therefore, it was within the Court's power to include those enhancements in Petitioner's sentence.
Second, the record indicates that the indictment was properly signed by the grand jury foreperson. (Gov't Letter, Aug. 25, 2005, Ex. B.) There is no evidence to support Petitioner's self-serving, post hoc allegation that the signature is a forgery.
Third, by Order, dated August 1, 2003, the Court confirmed that it had accepted Petitioner's guilty plea after reviewing the transcript of Petitioner's plea allocution, and finding that the plea had been entered "knowingly and voluntarily." (Gov't Letter, Aug. 25, 2005, Ex. A.) Therefore, Petitioner's claim that the Court did not properly accept his guilty plea is simply incorrect.
To the extent that Petitioner argues that the Court, as opposed to Magistrate Judge Dolinger, should have personally conducted his Rule 11 allocution, Petitioner is wrong; a magistrate judge has the authority to administer the Rule 11 allocution with the defendant's consent. United States v. Williams, 23 F.3d 629 (2d Cir. 1994). It is uncontested that Petitioner consented to proceed before Magistrate Judge Dolinger with respect to his guilty plea. (Plea Tr. 3:11-18.)
CONCLUSION
For the reasons stated above, Petitioner's Section 2255 motion is DENIED. A certificate of appealability will not issue because Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c) (2007). The Clerk of Court is hereby directed to close this case; all pending motions are moot.
In a submission styled a "Motion to Amend," dated June 10, 2005, Petitioner asserted an additional ground for the relief under Section 2255: that he is factually innocent of the crime to which he pleaded guilty. Assuming arguendo that this claim sufficiently relates back to Petitioner's original petition to be considered by the Court, Mavle v. Felix, 545 U.S. 644, 655 (2005), it would nonetheless be waived by the waiver provision in Petitioner's Plea Agreement for the reasons set forth above.
SO ORDERED.