Opinion
03 Cr. 317 (SWK), 05 Civ. 9893 (SWK).
July 12, 2006
OPINION ORDER
Pro se petitioner Joel Lopez ("Lopez" or "Petitioner") moves to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255. Lopez contends that he was denied his right to appeal because his trial counsel failed to file a notice of appeal, contrary to Lopez's explicit request that he do so. In addition, Lopez moves for an order granting discovery and appointing counsel for his § 2255 petition. For the reasons set forth below, the motions are denied.
BACKGROUND
Lopez was charged with conspiring to distribute and possess with intent to distribute 500 grams and more of cocaine and 100 grams and more of heroin. Pursuant to a plea agreement entered into with the Government (the "Plea Agreement"), Lopez waived indictment and pleaded guilty to an information (the "Information"), which charged him with a violation of 21 U.S.C. §§ 846, 812, 841(a) (1) 841(b) (1) (B). The Plea Agreement stipulated that Lopez's offense level and criminal history category produced a Sentencing Guidelines range of 51 to 63 months imprisonment. However, because 21 U.S.C. § 841(b) (1) (B) imposes a mandatory minimum sentence of 60 months imprisonment, the parties agreed that Lopez's Sentencing Guidelines range was 60 to 63 months. Additionally, the Plea Agreement contained an appeal waiver provision, in which Lopez stipulated that he would not appeal or seek post-conviction relief for a sentence at or below the stipulated sentencing range.
On June 11, 2003, Lopez appeared before the Court and pleaded guilty to Count One of the Information. At the plea hearing, the Court ascertained that Lopez understood the rights which he was waiving by pleading guilty, and that he was willing to waive them. The Court described the nature of the charge and ensured that Lopez understood the elements of the offense. Lopez then specifically allocuted to the elements of the offense, explaining the weight and type of drugs with which the conspiracy was involved. On September 2, 2003, the Court sentenced Lopez to 60 months incarceration, the minimum sentence permissible under the statute. At sentencing, the Court advised Lopez of his right to appeal. Pursuant to the Plea Agreement, Lopez did not file a notice of appeal.
Lopez now moves to vacate, set aside, or correct his sentence, arguing that he was denied his right to appeal, because his trial attorney, Telesforo Del Valle, Jr. ("Del Valle"), failed to file a notice of appeal after Lopez explicitly instructed him to do so. The sole evidence supporting Lopez's claim is his own affidavit. (Lopez Aff. ¶¶ 2-4 Nov. 3, 2005.) At the Government's request, Del Valle has also submitted a sworn, notarized affidavit concerning the facts at issue. In it, Del Valle affirms that he consulted with Lopez regarding his right to appeal, but "at no point in time did [Lopez] instruct me to file a Notice of Appeal." (Del Valle Aff. ¶ 4, Apr. 20, 2006.) In addition, shortly after filing his § 2255 petition, Lopez moved the Court for discovery, pursuant to Rule 6 of the Rules Governing Section 2255 Proceedings, and the appointment of counsel.
Lopez grounds his request for appointment of counsel on 21 U.S.C. § 848(q) (4) (B), which mandates appointment of counsel to defendants seeking to vacate or set aside a death sentence. As that statute is inapplicable to the instant case, Lopez's request for counsel is properly evaluated by reference to the "interests of justice" standard described in 18 U.S.C. § 3006A.
DISCUSSION
The sole issue on the face of the habeas petition is whether trial counsel failed to follow Lopez's instruction to file a notice of appeal, thus denying Lopez his right to appeal. The disposition of this issue requires a factual investigation. More than two years ago, Lopez pleaded guilty to Count One of the Information pursuant to a plea agreement, which contained an explicit appeal waiver provision. Shortly thereafter, he was sentenced to the minimum term mandated by statute. Lopez now asserts that he specifically requested that his attorney file a notice of appeal, but that his request was ignored. Petitioner's assertion is contradicted by his trial counsel's sworn affidavit. Del Valle affirms that following the sentencing he explained to Lopez the effect of the appeal waiver provision, that Lopez indicated that he understood he had waived his right to appeal, and that Lopez never instructed Del Valle to file a notice of appeal. (Del Valle Aff. ¶¶ 3-4.)It is well-established that in cases considering postconviction relief, "allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner." Machibroda v. United States, 368 U.S. 487, 495 (1962), cited in Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001). In Chang, the Second Circuit held that is within the district court's discretion to forego an evidentiary hearing when a defendant's "self-serving and improbable assertions" are countered by his former attorney's detailed description of the events. 250 F.3d at 86. Courts may properly consider an affidavit containing trial counsel's description of the events at issue. Id.
Under the circumstances of this case, the Court is able to make a finding regarding Lopez's factual assertion without a hearing. Here, the Court presided over the trial court proceedings and has considered the written submissions of both Lopez and his trial counsel. On the basis of the waiver appeal provision in the Plea Agreement, Lopez's subsequent sentencing to a statutory minimum term of imprisonment, and Del Valle's sworn affirmation that Lopez did not ask him to file an appeal, the Court holds that Lopez has not carried his burden. Numerous courts in the Second Circuit have reached this conclusion in similar circumstances.See Davila-Bajana v. United States, No. 01 Civ. 7329(RR), 2002 WL 2022646, at *4 (E.D.N.Y. Jun. 26, 2002); Adama v. United States, No. 01 Civ. 5539(JSM), 2001 WL 1568809, at *1 (S.D.N.Y. Dec. 7, 2001); Guiterrez-Fernandez v. United States, No. 99 Civ. 4484, 2000 WL 1559945(DAB), at *4 (S.D.N.Y. Oct. 18, 2000).
The Second Circuit's recent decision in U.S. v. Campusano, 442 F.3d 770 (2d Cir. 2006), does not compel a different conclusion. That case considered whether "an attorney who fails to file a notice of appeal requested by his client is constitutionally ineffective when the client waived appeal in his plea agreement." Id. at 771. The Second Circuit answered that question in the affirmative, concluding that the Supreme Court created a per se rule in Roe v. Flores-Ortega, 528 U.S. 470 (2000), "that failure to file a requested notice of appeal constitutes ineffective assistance" of counsel. Campusano, 442 F.3d at 772.
Of course, this rule only applies where the court determines that trial counsel failed to file a requested notice of appeal. Where the court determines that the client did not request an appeal, the Flores-Ortega rule is not triggered. Although the district court is required to engage in factfinding to determine if an appeal was requested, Campusano specifically recognizes that "the district court has discretion to determine if a testimonial hearing will be conducted" in order to make this finding. Campusano, 442 F.3d at 776 (citing Chang, 250 F.3d at 85-86). As indicated above, a testimonial hearing here "would add little or nothing to the written submissions." Chang, 250 F.3d at 86. Because Lopez has not demonstrated that trial counsel ignored his request to file a notice of appeal, theFlores-Ortega rule is simply inapplicable.
As Lopez's § 2255 petition is based solely on his assertion that trial counsel ignored his request to file a notice of appeal, and the circumstances of this case belie that assertion, the petition is denied. Because Lopez has not shown good cause for why he should be given leave to conduct discovery, his requests for discovery and appointment of counsel to further develop his claim are also denied. Finally, as Lopez has not made a substantial showing of the denial of a constitutional right, the Court declines to issue a certificate of appealability. See 28 U.S.C. § 2253(c); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997).
Lopez's affirmation in support of discovery contains several allegations raised for the first time on his discovery request. For instance, and again in contradiction of the record, Lopez alleges that he was unaware of the Government's burden of proof for establishing certain factors of the charges to which he pleaded guilty, and that subsequent to his plea in this case he was improperly prosecuted for conduct related to the offense conduct underlying his plea. (Lopez Aff. ¶¶ 8-14, Dec. 22, 2005.) Presumably, these are the issues that Lopez would raise if the Court was to find that he had been denied his right to appeal and was now entitled to a direct appeal. Campusano explicitly holds that the district court is not to assess the merits of the requested appeal when the sole issue before the court is whether the client requested the appeal. 422 F.3d at 776. Accordingly, these claims are not properly before the Court, and will not be addressed.
SO ORDERED.