Ramirez-Hernandez v. United States of America

Filing 5

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 USC §2255 -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, pro se petitioner's request for relief pursuant to 28 USC §2255 is denied in it s entirety. Petitioner is further denied a certificate of appealability as he fails to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Luciadore v. New York State Div. of Parole, 209 F. 3d 107, 112 (2d Cir. 2000). The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefor e, in forma pauperis status is denied for purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Memorandum and Order to pro se petitioner and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 5/21/2012. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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HERNAN RAMIREZ-HERNANDEZ, pro se, :
:
Petitioner,
:
:
-against:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
:
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DORA L. IRIZARRY, U.S. District Judge:

MEMORANDUM AND ORDER
09-CV-4107 (DLI)

Pro se 1 petitioner Hernan Ramirez-Hernandez (“Petitioner”) filed this petition for a writ
of habeas corpus, challenging his sentence pursuant to 28 U.S.C. § 2255 (“Section 2255”).
Petitioner argues he received ineffective assistance of counsel, in violation of the Sixth
Amendment of the United States Constitution, because his attorney failed to move for a
downward departure from the mandatory minimum sentence imposed by the court.

The

government opposes the petition. For the reasons set forth below, the petition for writ of habeas
corpus is denied in its entirety.
I.

Background
A. Plea Agreement and Plea Hearing
On May 13, 2008, under oath and represented by counsel, Petitioner pled guilty, pursuant

to a written plea agreement to Count One of the indictment, which charged that Petitioner
conspired to import 100 grams or more of heroin into the United States, in violation of Title 21,

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The court is mindful that, “[a] document filed pro se is to be liberally construed and a pro se
[petition], however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Accordingly, the
court interprets the petition “to raise the strongest arguments that [it] suggest[s].” Triestman v.
Fed. Bureau of Prisons, 470 F. 3d 471, 474 (2d Cir. 2006) (emphasis omitted).

United States Code, Section 963. (See 09-CV-4107, Dkt No. 3, Ex. A (“Plea Agreement”); id.,
Ex. B, May 13, 2008 Guilty Plea Transcript (“Plea Tr.”) at 25.)

The written Plea Agreement

Petitioner entered into on May 13, 2008 stated, inter alia, that the charge to which Petitioner was
pleading guilty carried a maximum sentence of forty years’ imprisonment and a mandatory
minimum sentence of five years’ imprisonment. (Plea Agreement ¶ 1.) The Plea Agreement also
stated that, as long as Petitioner had no prior convictions, the likely adjusted offense level under the
United States Sentencing Guidelines (“U.S.S.G.”) would be 24, which carried a range of
imprisonment of 51 to 63 months, and, if Petitioner pled guilty on or before May 13, 2008, the
government would move for a reduction of one point, resulting in an offense level of 23, which
carried a range of imprisonment of 46 to 57 months. (Id. ¶ 2.) However, the Plea Agreement

further stated that, because Petitioner was subject to a mandatory minimum sentence of 60
months, the effective U.S.S.G. range of imprisonment would actually be 60 to 63 months. (Id.)
Additionally, the Plea Agreement also contained an explicit appellate waiver provision (the
“Waiver Provision”) whereby Petitioner “agree[d] not to file an appeal or otherwise challenge,
by petition pursuant to 28 U.S.C. § 2255 or any other provision, the conviction or sentence in the
event that the Court imposes a term of imprisonment of 63 months or below.” (Id. ¶ 4.)
During the plea hearing, the court asked Petitioner, inter alia, whether he was satisfied
with the representation and advice given to him by his attorney and whether he had had sufficient
time to discuss his decision to plead guilty with her. (Plea Tr. at 4-5, 8-9.) Petitioner responded
affirmatively to the questions. (Id.) The court also explained to Petitioner that “by pleading
guilty and by entering into the plea agreement that is before the court today, you will have
waived or given up your right to an appeal or to collaterally attack all or part of the sentence that
I will impose if I should impose a sentence of 63 months or something below that. Do you
understand that?” (Id. at 14.) Petitioner responded that he understood. (Id.) Shortly thereafter
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the court explained the Waiver Provision again and Petitioner again stated he understood and
consented to the agreement. (Id. at 17.)
The court also explained to Petitioner that the charge to which he was pleading guilty
carried a minimum term of five years’ imprisonment. (Id. at 18.)

Petitioner’s counsel

represented that Petitioner wished to proffer for the safety valve exception, pursuant to 18 U.S.C.
§ 3553(f). (Id. at 23.) The court then explained to Petitioner that “what is important about the
safety valve is . . . it allows the court to impose a sentence that is less than the statutory
minimum.” (Id. at 24.) Accordingly, the court informed Petitioner that “it’s always to your
benefit to do your best at those [proffer] meetings.” (Id.) Then, based on Petitioner’s responses
to all of the court’s inquiries, the court found “that [Petitioner] is not only acting voluntarily and
that he understands his rights and the consequences of his plea but also that there is a factual
basis for the plea and I therefore accept his plea of guilty to count one of the indictment.” (Id. at
30.)
B. Sentencing Hearing
On February 19, 2009, Petitioner appeared before the court for sentencing. (See 09-CV4107, Dkt No. 3, Ex. C, February 19, 2009 Sentencing Transcript (“Sent. Tr.”).) The court
adopted the Probation Department’s calculation that Petitioner’s U.S.S.G. range was 46 to 57
months.

(Id. at 8.)

However, the court also noted that Petitioner had not satisfied the

requirements for the safety valve “although he otherwise appear[ed] to be eligible in terms of his
criminal history category[.]”

(Id.)

Accordingly, the court concluded “that the statutory

minimum of 60 months trumped the guidelines as far as the minimum is concerned.” (Id.)
Counsel for both parties agreed. (Id.) The court then asked Petitioner whether he understood
what was being discussed and Petitioner responded in the affirmative. (Id.)

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Petitioner’s counsel next informed the court that she was not seeking a downward
departure. She stated that “ordinarily, because of my client’s medical condition, I would have,
but given that the mandatory minimum is above the guideline recommendation [,] I’m not.” (Id.
at 9.) Petitioner’s counsel further stated she was “saddened that we were not able to reach an
agreement on the safety valve. I have met with Mr. Ramirez to discuss this on three occasions.”
(Id. at 9.) Petitioner’s counsel then concluded that “given his age, the fact that this is his first
conviction, and given his medical condition he’s asked me to ask the Court to be as merciful as
possible.” (Id. at 9-10.)
Before the court imposed sentence, the court made the following statement:
This was not an overly complicated case with excessive
computations. In some ways the sentencing here is difficult,
nevertheless, because of Mr. Ramirez-Hernandez’ reluctance to
follow up on the opportunity to qualify for the safety valve. This is
[the] kind of a case where commonly the safety valve is granted,
especially considering the fact that this is Mr. Ramirez-Hernandez’
first arrest.
(Id. at 10-11.) The court continued by addressing Petitioner’s counsel:
I don’t envy you your position, Ms. Whalen, because by not
following up with the safety valve [Petitioner] has, in effect, tied
your hands in terms of being able to make either a downward
departure motion or a non-guidelines motion under 3553(a) in light
of the life threatening illness that Mr. Ramirez-Hernandez is
coping with.
(Id. at 11.) The court then continued by noting:
Although the progress [of Petitioner’s illness] seems not to be at an
elevated state, nevertheless, that’s something that could change at
any given time, and so, while the Court also has to consider the
3553(a) factors, and certainly, the Court has looked at them, but
the fact of the statutory minimum almost makes that an exercise in
futility because, based on the facts and circumstances here and
certainly, the history and characteristics of Mr. RamirezHernandez and his age -- he is 60 years old, I believe, and that
certainly puts him in the class of defendants who are less likely to
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recidivate, the fact that he does suffer from a life threatening
illness, as I said, which relates to the Court’s consideration of
providing medical -- appropriate medical treatment to the
defendant, is in many ways just taken out of my hands, and
certainly, those are factors that I would have considered and
entertained a motion for in this case.
(Id. at 11-12.) The court then imposed the statutory minimum 60 months’ sentence. (Id. at 12.)
C. Appeal and Habeas Petition
Despite the Waiver Provision in the Plea Agreement, Petitioner filed a Notice of Appeal
to the Second Circuit Court of Appeals on February 25, 2009, challenging his conviction. (See
08-CR-155, Dkt No. 46.)

On May 28, 2009, Petitioner signed a stipulation voluntarily

withdrawing his appeal. (See 09-CV-4107, Dkt No. 3, Ex. D (“Stipulation”).) On June 11, 2009,
the Second Circuit entered the stipulation. (See id.) On September 15, 2009, Petitioner filed the
instant petition, arguing his counsel rendered ineffective assistance because she failed to seek a
downward departure of his sentence on the grounds that: 1) Petitioner showed remorse; 2)
Petitioner is a deportable alien; 3) the condition of Petitioner’s pre-trial confinement was below
standard; 4) Petitioner’s family will suffer undue hardship because of the incarceration; and 5)
when considering all the grounds together, a downward departure was warranted. (See 09-CV4107, Dkt No. 1, Pet’rs’ Br. at 5.) Accordingly, Petitioner moves the court to apply a downward
departure to the sentence he is currently serving. For the reasons discussed below, Petitioner’s
claim is denied.
II.

Discussion
A. Petitioner Waived His Right to Seek Habeas Relief
In general, the Second Circuit rejects attempts to challenge a conviction where a

petitioner waived that right pursuant to a written plea agreement. See Garcia-Santos v. United
States, 273 F. 3d 506, 508-09 (2d Cir. 2001) (per curiam); United States v. Pipitone, 67 F. 3d 34,
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39 (2d Cir. 1995). Courts have also enforced such waivers when a petitioner agrees, pursuant to
a written plea agreement, not to challenge a sentence within a stipulated U.S.S.G. range. See
Garcia-Santos, 273 F. 3d at 507-09 (holding a petitioner’s waiver of appeal and collateral attack
binding in a Section 2255 proceeding where the imprisonment term was within the stipulated
guideline range); Pipitone, 67 F. 3d at 39 (holding a petitioner’s “explicit undertaking in the
[Plea] Agreement not to appeal a sentence that fell within [the] guideline range,” within which he
was ultimately sentenced, precluded him from both directly appealing or collaterally challenging
his sentence).
Here, the record is clear that Petitioner signed the written Plea Agreement, and
knowingly and voluntarily waived his right to seek habeas relief. (See Plea Tr. at 8-9, 14-17,
31.) By entering into the Plea Agreement, Petitioner explicitly agreed to “not file an appeal or
otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, the
conviction or sentence in the event that the Court imposes a term of imprisonment of 63 months
or below.” (Plea Agreement ¶ 4.) Notably, Petitioner stated to the court, under oath, that he
understood that agreement. (Plea Tr. at 14, 16.) As Petitioner ultimately received a sentence of
60 months of imprisonment, which was below the waiver of appeal threshold stipulated in his
Plea Agreement, Petitioner waived his right to challenge his conviction and sentence.
B. Petitioner’s Claim of Ineffective Assistance of Counsel is Without Merit
Petitioner seeks to circumvent the waiver of his right to appeal by raising claims of
ineffective assistance of counsel. The Second Circuit has held that “a plea agreement containing
a waiver of the right to appeal is not enforceable where the defendant claims that the plea
agreement was entered into without effective assistance of counsel.”

United States v.

Hernandez, 242 F. 3d 110, 113-14 (2d Cir. 2001) (citing United States v. Djelevic, 161 F. 3d

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104, 107 (2d Cir. 1998)). Therefore, a waiver is not enforceable if a petitioner can demonstrate
that he unknowingly or involuntarily agreed to the plea directly owing to the ineffective
assistance of his counsel. See Hernandez, 242 F. 3d at 113-14.
Here, Petitioner does not claim that he unknowingly or involuntarily entered into the Plea
Agreement because of the ineffective assistance of his counsel, as he must to overcome the
Waiver Provision. (See generally Pet’r’s Br.); see also Hernandez, 242 F. 3d at 113-14. Instead,
Petitioner asserts his counsel was ineffective because she did not seek a downward departure of
his sentence. (Pet’r’s Br. at 5.) Petitioner thus fails to properly allege an ineffective assistance
of counsel claim that would render the Waiver Provision unenforceable. Moreover, as discussed
supra, in Part II.A, the record of this matter, including Petitioner’s withdrawal of his appeal,
establishes that Petitioner’s decision to enter the Plea Agreement was knowing and voluntary.
(See Plea Tr. at 8-9, 14-17, 30.) Accordingly, the Waiver Provision is enforceable and the court
need not reach Petitioner’s ineffective assistance of counsel claim as presently alleged. See
United States v. Monzon, 359 F. 3d 110, 116 (2d Cir. 2004) (“Where the record clearly
demonstrates that the defendant’s waiver of her right to appeal a sentence within an agreed
Guidelines range was knowing and voluntary, that waiver is enforceable.”). Nevertheless, in
light of Petitioner’s pro se status, the court will address the merits of Petitioner’s claim.
Petitioner asserts that his counsel was ineffective because she did not move for a
downward departure from his mandatory minimum sentence. (Pet’r’s Br. at 5.) The court
evaluates Petitioner’s claim of ineffective assistance of counsel under the framework set forth in
Strickland v. Washington, 466 U.S. 668 (1984). The petitioner “must show that counsel’s
representation fell below an objective standard of reasonableness . . . under prevailing
professional norms.” Strickland, 466 U.S. at 687-88. If that burden is overcome, the petitioner

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must also show “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. “[C]ounsel is
strongly presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Id. at 690. Petitioner has failed to establish that
his attorney provided ineffective assistance.
Counsel’s decision not to seek a downward departure from Petitioner’s mandatory
minimum sentence did not fall below an objective standard of reasonableness. A district court
may sentence a defendant below a statutory minimum only where: 1) the defendant provides
“substantial assistance” and the government moves, pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C.
§ 3553(e) for a reduction below the statutory minimum or; 2) where the safety valve exception
applies. 2 See United States v. Oliveras, 359 F. App’x 257, 258 n.1 (2d Cir. 2010).
Here, Petitioner affirmed he understood the charge to which he was pleading guilty
carried a mandatory minimum sentence of five years’ imprisonment and the court explained to
him that he needed to qualify for the safety valve exception before the court could consider
imposing a sentence below the statutory minimum. (Plea Tr. at 18-19, 23-24.) Counsel, acting
as a zealous advocate for her client, attempted, on three occasions, to assist Petitioner in
satisfying the safety valve requirements, but Petitioner was reluctant to cooperate. (Sent. Tr. at
8-11.) Thus, as a consequence of Petitioner’s own inaction, he failed to meet the safety valve
exception and he therefore became ineligible to receive a sentence below the statutory minimum.
See Oliveras, 359 F. App’x at 258 (“[D]istrict courts generally lack the authority to impose a
sentence below the statutory minimum.” (citing Kimbrough v. United States, 552 U.S. 85, 108
(2007))). Accordingly, counsel’s decision not to move the court to downwardly depart when
2

In the instant case the government did not move for a reduction below the statutory minimum
pursuant to Section 3553(e) or U.S.S.G. § 5K1.1.
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imposing the sentence was not unreasonable as the court had no authority to grant the motion.
See id. (“[T]he district court manifestly erred in sentencing defendant to a term below the
statutory minimum” where the defendant did not qualify for the safety valve exception and the
government did not move for a reduction based on defendant’s substantial assistance).
Moreover, Petitioner was not prejudiced by counsel’s decision. Even if counsel had
moved for a downward departure, the motion would have been denied because Petitioner’s
failures to satisfy the safety valve exception foreclosed the possibility that he could have
received a sentence lower than the statutory minimum.

See id.; see also Jerez v. United

States, 2012 WL 473490, at *2 (S.D.N.Y. Feb. 14, 2012) (counsel not ineffective for failing to
move for a downward departure from mandatory minimum because petitioner could not have
received a sentence lower than the mandatory minimum sentence he had received).
Accordingly, as Petitioner has failed to make a showing of ineffective assistance of
counsel under the Strickland standard, his claim is denied.

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III.

Conclusion
For the reasons set forth above, Petitioner’s request for relief pursuant to Section 2255 is

denied in its entirety. Petitioner is further denied a certificate of appealability as he fails to make
a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Fed.
R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Luciadore v. New York State
Div. of Parole, 209 F. 3d 107, 112 (2d Cir. 2000). The court certifies pursuant to 28 U.S.C. §
1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in
forma pauperis status is denied for purpose of any appeal. Coppedge v. United States, 369 U.S.
438, 444-45 (1962).

SO ORDERED.
Dated: Brooklyn, New York
May 21, 2012
_______________/s/_____________
DORA L. IRIZARRY
United States District Judge

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