ZELAYA v. UNITED STATES OF AMERICA

Filing 16

OPINION. Signed by Judge Joel A. Pisano on 7/24/2013. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_____________________________________
GUEVARA ZELAYA
:
Petitioner,

:
Civil Action No. 12-3213 (JAP)

v.

:
OPINION

UNITED STATES OF AMERICA

:

Respondent.
:
_____________________________________

PISANO, District Judge:
This matter is before the Court pursuant to a Petition to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Guevara Zelaya (“Guevara”).
Petitioner challenges his 2009 conviction in the District Court for the District of New Jersey,
alleging ineffective assistance of counsel, and asserting that his plea agreement was not
knowingly and intelligently made. On May 21, 2012, Guevara filed a Motion for Appointment of
Counsel and a Motion for Evidentiary Hearing. For the reasons set forth below, the Motion for
Appointment of Counsel and Motion for Evidentiary Hearing will be denied, and the Court will
dismiss the petition because it finds no merit to Petitioner’s allegations of ineffective assistance
of counsel and that he did not knowingly and intelligently enter into his plea agreement.
Background
Guevara is a citizen of Honduras and first came to the United States in 1994. From 1996
to 2009 Guevara was arrested in the United States twenty times for receiving stolen property,
hindering apprehension, resisting arrest, trespassing, obstruction of justice, bail jumping,

domestic violence, child molestation, assault and drug related offenses. As a result of these
charges he acquired a criminal history category of VI.
On March 12, 2004, Guevara was convicted in the New Jersey Superior Court for
possession of Cocaine with the intent to dispense or distribute within 1,000 feet of a school and
sentenced him to four years imprisonment. The offense was an aggravated felony. In 2006 he
was deported to Honduras.
At some point after being deported in 2006, Guevara reentered the United States. In
October 2009, Guevara was arrested for a traffic violation in Jersey City, New Jersey. He was
later charged on a federal indictment by the United States Government for the crime of illegal reentry because he had not obtained the consent of U.S. Attorney to reenter the United States, in
violation of 18 U.S.C. 1326 (a) and (b)(2).
In November 2009, Assistant Federal Public Defender Kevin Carlucci was appointed to
represent Guevara on the charge of illegal re-entry. The Government offered the Petitioner a
written offer to plead guilty to the crime of illegal re-entry with an offense level of 21 with no
ability to argue for a downward variance or departure. In response to the Government’s plea
offer, Mr. Carlucci asked the Government to make a plea offer that contained stipulations of fact,
which would allow him to argue for a downward variance or departure. The Government agreed
to Mr. Carlucci’s counteroffer to make a fact-stipulated plea agreement. Mr. Carlucci then met
with the Petitioner at the Essex County Jail and twice at Monmouth County jail to discuss and
explain both plea agreements (the fact-stipulated plea agreement and the fully-stipulated plea
agreement). Neither agreement specifically stated anything about a time served sentence or
being deported. Guevara ultimately ended up accepting the fact stipulated plea agreement.

Mr. Carlucci advised Guevara that his sentence would most likely be 77 to 96 months
based on his current crime and criminal history. Mr. Carlucci stated that he made no promises to
Guevara that he would receive any specific sentence. Mr. Carlucci filed a sentencing
memorandum arguing that Guevara deserved a variance application plea agreement.
At sentencing in May 2011, the presiding Judge Garrett Brown reiterated what Mr.
Carlucci had told Guevara, that the sentence to be imposed on Guevara was within the sole
discretion of the sentencing judge, and that the plea agreement did not bind the sentencing judge.
Judge Brown then informed Guevara that the sentencing guidelines ranged from 77 to 96
months. Ultimately, Judge Brown sentenced Guevara to 77 months.
Thereafter, Mr. Carlucci filed a notice of appeal on Petitioner’s behalf, which argued that
the court did not properly weigh the Petitioner’s admittance of guilt and the reasons why he
returned to the United States, and that the sentence was too harsh for the crime committed. The
Third Circuit affirmed the judgment of the lower court and stated that Judge Brown’s sentence
met the sentencing guidelines and the court did not see any abuse that would warrant a reversal
of the lower court’s sentence.
On May 30, 2012, the Petitioner filed this Habeas Corpus Petition, claiming that when
Mr. Carlucci informed him of a potential plea agreement that he had negotiated with the U.S.
Attorney, he told Guevara that if he pled guilty he would receive a sentence of time served and
be deported.1 Therefore, Guevara claims that Mr. Carlucci was constitutionally ineffective
because counsel failed to bargain with the Government to his satisfaction and broke off
communication with Guevara to his detriment at the close of his sentencing. Additionally,
Guevara claims he did not knowingly and intelligently enter into his plea agreement because Mr.

Government submitted a sworn affidavit of Mr. Carlucci who denies ever having discussed
with Guevara a plea agreement made with the U.S. Attorney promising a time served sentence.
1 The

Carlucci had promised him a time served plea agreement. The Petitioner is seeking specific
performance to enforce the terms of the time served plea agreement that he believed he was
accepting at the time of his plea of guilty and to be deported.
Motion for Evidentiary Hearing
Guevara filed this Motion for Evidentiary Hearing. A motion for an evidentiary hearing
may only be granted if the defendant’s counsel caused him to be prejudiced. United States v.
McCoy, 410 3d Cir. 124 (2005). Therefore, the Court will evaluate the substance of Guevara’s
petition to conclude whether the Petitioner was indeed prejudiced by his counsel.
Motion for Appointment of Counsel
Guevara was represented by counsel in his initial hearing and sentencing and has now
moved for Appointment of Counsel. He alleges that he is seeking new counsel because his
original counsel, Mr. Carlucci, provided ineffective counsel and thus, the Petitioner was
prejudiced in the proceedings. The court will only grant a Motion for Appointment of Counsel if
it is satisfied the action is not frivolous or malicious. Tabron v. Grace, 6 F.3d 3d Cir. 147 (1993).
Here, Petitioner alleges that he should have received a time served sentence and been
immediately deported. Instead he was sentenced to 77 months. Therefore, this Court will
evaluate whether the Petitioner’s action is frivolous.
Analysis
The Petitioner raises two grounds for relief in his habeas corpus petition: (1) ineffective
assistance of counsel, (2) and plea was not knowingly and intelligently made.
A. Ineffective Assistance of Counsel
The Petitioner asserts that he received ineffective assistance of counsel because he was
led to believe by his attorney that he was receiving a plea agreement that was negotiated with the

U.S. Attorney. This alleged plea agreement stipulated that if Petitioner pled guilty he would
receive a time served sentence and be immediately deported. However, when Petitioner pled
guilty, he received a sentence of 77 months. Thus, the Petitioner asserts that he did not
knowingly or intelligently enter into the plea agreement since he only accepted the plea under the
belief that he would receive no jail time.
In order to establish ineffective assistance of counsel, the petitioner must show that his
counsel’s representation fell below a standard of reasonableness, and because of such failure, the
petitioner was prejudiced, i.e., the outcome of the proceeding was affected by the counsel’s
inadequate representation. Strickland v. Washington, 466 U.S. 688 (1984). The burden is on the
Petitioner to prove that the attorney’s representation was ineffective because there is a
presumption of attorney competency. Id.
Here, the fact that the Petitioner did not receive a time served sentence and get
immediately deported does not demonstrate that Mr. Carlucci provided ineffective counsel. The
Petitioner presents no evidence that Mr. Carlucci and the U.S. Attorney ever entered into any sort
of plea agreement to that effect. Mr. Carlucci has sworn that he never promised the Petitioner a
time served sentence or that he entered into any agreement regarding a time served sentence with
the U.S. Attorney. In addition, we presume that Mr. Carlucci adequately explained the plea
agreements that were available to Guevara and did not lead Guevara to believe that another plea
agreement was being negotiated, because we presume that the attorney competently provided
representation. Id. In conclusion, the Petitioner has failed to prove that he received ineffective
assistance of counsel. Thus, the Court finds that it is unnecessary to hold an evidentiary hearing
because the Petitioner has not proven that he had ineffective assistance of counsel.

B. Knowingly and Intelligently Made
Under United States v. Larkin, the Court is required to closely look at the plea bargain
that the defendant entered into because when an individual enters into a plea bargain, that person
is giving up their constitutional right to trial by jury. United States v. Larkin, 629 F.3d. Cir.
(2010). In this case, the Petitioner clearly signed a plea agreement that did not include any
mention of a time served sentence or immediate deportation. Furthermore, when Judge Brown
asked the Petitioner if he had read and understood the plea agreement and if he had been
promised a specific sentence, he replied under oath that he had read and understood the
agreement and that he had not been promised a specific sentence. Therefore, after reviewing the
plea agreement as it is required to do under Larkin, the Court finds that the Petitioner was aware
of the bargain he was entering into and the Constitutional rights he was relinquishing. Thus, his
argument that he did not knowingly or intelligently enter into his plea agreement is rejected.
Further, the Petitioner argues that the sentence he received was too high for the crime
committed. Under Larkin, deference is given to the district court judge’s sentence because the
district court judge has heard and reviewed all the facts, and looked into the character and
background of the individual. Id. Factors that are taken into consideration when sentencing are
promoting respect for the law, proper deterrence to criminal conduct and protecting the public
from future crimes by the defendant. Id. Here the Petitioner has a level 6 criminal record, which
clearly demonstrates that he does not have any respect for the law of the United States or
remorse for his criminal conduct. Additionally, the Petitioner’s long history of criminal conduct
will have made him well versed in court proceedings and plea agreements. Accordingly, the
Court finds that the sentence was appropriate.

C. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253 (c)(1)(b), unless a circuit justice or judge issues a certificate
of appealability, appeal may not be taken from a final order in a proceeding under 28 U.S.C. §
2255. A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. (c)(2). “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
Here, Petitioner has failed to make a substantial showing of the denial of a constitutional
right. Accordingly, no certificate of appealability shall issue.
Conclusion
For the reasons set forth above, the Court dismisses the Petition for lack of evidence of
ineffective assistance of counsel and for knowingly entering into the plea agreement. It further
denies the Motion for an Evidentiary Hearing and Motion for Appointment of Counsel.

/s/ Joel A. Pisano
JOEL A. PISANO, U.S.D.J.

Dated: July 24, 2013