Perez v. USA

Filing 4

OPINION AND ORDER: #98429 For the reasons set forth above, Perezs § 2255 petition is denied. No hearing is necessary because the habeas record conclusively establishes that he is entitled to no relief. 28 U.S.C. § 2255; see also Chang v. Un ited States, 250 F.3d 79, 86 (2d Cir. 2001). In addition, Petitioner has not made a "substantial showing" of the denial of a constitutional right, and therefore the Court will not grant a certificate of appealability. Lucidore v. N.Y. Sta-t e Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4). Petitioner has the right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. -See 28 U.S.C. § 2255; Miller-El v. Cockrell, 537 U.S. 322 (2003). SO ORDERED. (Signed by Judge John F. Keenan on 1/5/2010) (jmi) Modified on 1/6/2010 (ajc).

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------x JOSE PEREZ : Plaintiff, : : -against: OPINION & ORDER : No. 08 Civ. 6558 (JFK) : No. 05 Cr. 441 (JFK) UNITED STATES OF AMERICA : : Defendant. : ---------------------------------x JOHN F. KEENAN, United States District Judge: Petitioner Jose Perez ("Petitioner" or "Perez") pleaded

guilty to conspiracy to distribute and possess with intent to distribute 3,4-methlyenedioxymethamphetamine (commonly known as "ecstasy"). He currently is serving a 63-month prison term He moves to vacate

imposed by this Court on December 14, 2006.

his conviction and sentence pursuant to 28 U.S.C. § 2255 on the grounds that his attorneys failed to properly explain the terms of the plea agreement and failed to raise on direct appeal

meritorious arguments concerning the propriety of Petitioner's sentence. For the reasons that follow, the motion is denied. I. BACKGROUND A. Perez testified to the Arrest following facts at his Fatico

hearing on October 11, 2006: At about 12:00 p.m. on April 12, 2005, Petitioner's a bag

brother-in-law,

Efrain

Rivera

("Rivera"),

placed

containing 5,000 pills -- 2,000 of which were ecstasy, 3,000 of which were fake -- in in Perez's Bronx, car, which was parked outside

Perez's

residence

New

York.

Rivera

subsequently

called Perez to notify him of the bag that he placed in his car and to offer him $200 to transport the pills to 174th Street and Fort Washington Avenue in Manhattan, New York, where Rivera had arranged to sell the pills to a third party. proceeding on December 1, 2005, Perez At the plea that the

acknowledged

package contained an illegal substance.

Unbeknownst to Rivera

or Perez, the third party seeking to buy the pills was in fact a confidential source ("the CS") acting under the supervision of the Drug Enforcement Agency ("DEA"). Perez agreed to transport the pills for Rivera. 4:00 p.m., Perez drove to 174th Street and Fort At around Washington

Avenue, and, upon arriving, Rivera transferred the bag of pills from Perez's car to his own vehicle. Bronx. After Perez reached the Bronx, Rivera called him again, requesting that he meet with a man named Giovanni to deliver cocaine to the same location in Manhattan. Perez maintains that Perez then returned to the

he refused to transport the cocaine, but agreed to meet with Giovanni at a for restaurant about 45 in the Bronx. and then Perez was at to the the

restaurant

minutes

returned

vicinity of his home.

Perez, Giovanni, and a third man who

-2-

Perez did not know, met near Perez's home.

Perez then drove

back to 174th Street and Fort Washington Avenue to collect from Rivera the $200 he was owed for delivering the ecstasy pills. Giovanni and the third man followed Perez in their respective vehicles to meet with Rivera. Upon Perez's arrival in Manhattan, Rivera retrieved the bag of pills and gave them to the CS. cocaine had not been delivered. the bag and called DEA the task DEA Rivera told the CS that the

The CS examined the contents of task force officer. arrested Shortly Perez and

thereafter, Rivera.

the

force

officer

B. On April 22,

Indictment and Guilty Plea 2005, Perez a grand with jury returned to a one-count and

indictment

charging

conspiracy

distribute

possess with intent to distribute, in violation of 21 U.S.C. § 846: (1) 500 grams or more of mixtures and substances containing a detectable amount of cocaine; and (2) mixtures and substances containing a detectable amount of ecstasy. On November 2, 2005, Perez entered into a written plea agreement in which Perez agreed to plead guilty with regard to the 2,000 pills that were in fact ecstasy. In the plea

agreement, the parties calculated Perez's base offense level to be 26, but agreed that Perez would be entitled to a three-level downward adjustment pursuant to United States Sentencing

-3-

Guidelines ("U.S.S.G.") § 3E1.1 "assuming the defendant clearly demonstrates acceptance of responsibility to the satisfaction of the Government." (Gov't Ex. C, at 2.) This would produce an

adjusted offense level of 23, which, combined with his Criminal History Category of I, yields a recommended term of imprisonment of 46 to 57 months under the that sentencing the guidelines. could The "seek

agreement

further

provides

Government

denial of the adjustment for acceptance of responsibility . . . and/or imposition of an adjustment for obstruction of justice . . . should it be determined that the defendant has . . .

committed another crime after signing this agreement." (Id. at 3.) On December 1, 2005, Perez appeared before the Court and, through the assistance of an interpretor, pleaded guilty to

conspiring to distribute and possess with intent to distribute ecstasy. At the outset of the Rule 11 hearing, counsel affirmed

that he had explained the plea agreement to Perez and that it had been translated for him. and admonished him, among The Court placed Perez under oath other things, that: (1) it was

important to tell the truth because any false statements could lead to future prosecution or otherwise "get [him] in more

trouble" (Plea Tr., Gov't Ex. B, at 4.); (2) he had a right to a trial in which he would be presumed innocent until proven

guilty; (3) the

charge to which he was pleading guilty carried

-4-

a

statutory

maximum

sentence

of

twenty

years;

and

(4)

the

Government calculated his applicable guideline sentencing range to be 46 to 57 months, but that the sentencing guidelines are not binding on the Court. Perez told the Court that he

understood his rights and was willing to waive them by pleading guilty. Perez further stated that he was satisfied with the

representation he received by counsel and that he was pleading guilty on his own free will, without any threat of force or promise of leniency, because, in fact, he was guilty. Perez then explained the circumstances of his crime, the Court accepted the guilty plea. C. The Fatico Hearing and

On February 10, 2006, the Probation Office prepared a presentence report, in which it recommended a sentence that

comported with the terms of the plea agreement. On August 9, 2006, defense counsel wrote the Court,

requesting a Fatico hearing to determine his eligibility for safety valve credit, pursuant to U.S.S.G. § 5C1.2, under which Perez would receive an additional two-level reduction of his offense satisfied level. the The first Government four criteria stipulated for that Perez of had the

qualification

saftey valve, but disputed the fifth criteria, i.e., that "not later than the time of the sentencing hearing the defendant has truthfully provided to the Government all information and

-5-

evidence the defendant has concerning the offense." 18 U.S.C. § 3553(f)(5). The Fatico hearing was held on October 11, 2006. Perez's

testimony at the hearing contradicted his previous statements to the DEA task force officers following his arrest and to the Government in the safety valve proffer session. For example,

Perez testified that he lived near Monroe Avenue in the Bronx. However, on cross-examination, he admitted that he previously had told the DEA agents that he resided on 174th Street in Manhattan, Perez also near the location on of the and narcotics transaction. that

testified

direct

cross-examination

although he had refused to deliver the cocaine to Rivera, he met with Giovanni and a third man "out of curiosity" and led them in their respective vehicles to Manhattan to meet with Rivera.

However, on cross-examination, Perez admitted that he had never mentioned Giovanni or the third man during the safety valve proffer session. Moreover, Perez's testimony on cross-examination On

contradicted the assertions he made on direct examination.

direct examination, he testified that Rivera told him to look inside the bag that Rivera had put in his car. However, on

cross-examination, Perez testified that Rivera did not tell him to check the contents of the bag. Perez's testimony also was On

inconsistent with regard to when he first met the third man.

-6-

direct examination, Perez testified that the third man arrived at the restaurant while Perez was there with Giovanni. on cross-examination, Perez stated that, when he However, left the

restaurant, the third man had not yet arrived. On October 13, 2006, at the continuation of the Fatico hearing, sentencing counsel informed the Court that Perez wished to withdraw his application and asked to terminate the

proceeding. pursue the

The Government consented, but noted that it would "consequences" for what it considered to be

perjurious testimony by Perez. D. Sentencing and Appeal

In its sentencing memorandum, the Government asserted that, based on his perjurious testimony at the Fatico hearing, Perez should lose the three-level downward adjustment for acceptance of responsibility and should be assessed a two-level enhancement for obstruction of justice. Defense counsel maintained that

Perez should still receive the three-level downward adjustment for acceptance of responsibility because he truthfully admitted to the relevant conduct in the narcotics transaction. Counsel

claimed that Perez was confused about the whole process, and therefore did not have the specific intent to commit perjury or obstruct justice. He stated that Perez believed, despite

repeated warnings from sentencing counsel, the Government, and

-7-

the Court, that there were no possible adverse consequences from the Fatico hearing beyond the denial of safety valve credit. The Government contested Perez's claim of confusion. asserted that Perez's testimony was purposely perjurious It in

order to convince the Court that he played a much more minor role in the offense than the evidence overwhelmingly showed. The Court agreed with the Government, determing that Perez was not confused at either the Fatico hearing or the proffer session. The Court specifically found that Perez did "not

testify truthfully" regarding: (1) whether Rivera had asked him to look at the contents of the bag that he placed in Perez's car; and (2) whether the "mysterious third man" was present at his meeting with Giovanni. (Sent. Tr., Gov't Ex. E, at 8-10.) The Court also believed that Perez was "not credible and his testiony is not worthy of belief," pointing out that it made no sense that Perez purportedly wanted no part in the cocaine

transaction, but still went to meet with Giovanni. (Id. at 910.) which justice The Court therefore determined the offense level to be 28, included and of did a two-level not include enhancement the for obstruction reduction of for

three-level with

acceptance

responsibility.

Paired

Perez's

criminal

history level of I, the sentencing guidelines provides for a sentencing range of 78 to 97 months of imprisonment.

-8-

Before the Court announced Perez's sentence, it provided him an opportunity to address the Court. He apologized for his

crime and expressed remorse for his "mistake" of providing false testimony, telling the Court that he lied "out of stupidity and ignorance." (Id. at 20.) The Court departed from the guideline range of 78 to to 97 months, finding Perez to that a it would have period been of

inequitable

sentence

higher

incarceration than his co-defendant, Rivera.

It imposed a 63-

month term of imprisonment -- the same amount of time Rivera received -- to be followed by three years of supervised release. Perez filed a timely notice of appeal and was appointed new counsel. Appellate counsel submitted a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), asking to be relieved as counsel because, based on his review of the record, there were no non-frivilous issues to be raised on appeal. The Anders

brief thoroughly detailed the circumstances surrounding Perez's arrest, forth plea, and sentence. for Morover, that appellate there counsel no set non-

his

reasons

concluding

were

frivoulous issues on appeal, namely:

(1) Petitioner's guilty

plea was knowing and voluntary; (2) the Court had a valid basis for withholding the acceptance of responsibility reduction and mandating an obstruction of justice enhancement; (3) the Court adequately considered the § 3553 factors and all mitigating

circumstances in determining a reasonable sentence; and (4) he

-9-

had no basis to argue that Perez was denied effective assistance of counsel. The Government agreed with appellate counsel and moved for summary affirmance, representing that there were no non-

frivolous issues.

On August 8, 2007, the Court of Appeals found

as such and granted summary affirmance. United States v. Efrain Rivera & Jose Perez, No. 06-5802-cr (2d Cir. Aug. 8, 2007). II. DISCUSSION

Petitioner now moves to vacate his sentence pursuant to 28 U.S.C. § 2255, claiming that (1) trial counsel failed to ensure that the Petitioner understood the terms of the plea agreement, and (2) appellate counsel failed to argue that Petitioner's

sentence was unreasonable pursuant to 18 U.S.C. § 3553 and that Petitioner enhancement. To prevail on an ineffective assistance of counsel claim, a petitioner must satisfy the two-part inquiry set forth in was improperly issued an obstruction of justice

Strickland v. Washington, 466 U.S. 668, 687 (1984).

First, the

petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 688. The court

"`must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' bearing in mind that `there are countless ways to provide

effective assistance in any given case' and that `even the best

- 10 -

criminal defense attorneys would not defend a particular client in the same way.'" United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689). Second, petitioner must "affirmatively prove prejudice,"

demonstrating that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 693-94. "[E]ven professionally unreasonable errors

by defense counsel will not warrant setting aside the judgment in a criminal proceeding unless those errors were prejudicial." Urena v. United States, No. 06 Civ. 6050, 2007 WL 2319136, at *3 (S.D.N.Y. Aug. 8, 2007). A. Trial Counsel

A guilty plea is valid if it is a knowing and voluntary act "done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970). A plea is "knowing" if the defendant is fully aware

of and appreciates its potential consequences. See United States v. Ready, 82 F.3d 551, 557 (2d Cir. 1996). It follows,

therefore, that ineffective assistance of counsel can invalidate a guilty plea "to the extent that the counsel's deficient

performance undermines the voluntary and intelligent nature of defendant's decision to plead guilty." U.S. v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005). Where "defendant's specific claim is

that counsel has misled him as to the possible sentence which

- 11 -

might result from a plea of guilty . . . the issue is whether the defendant was aware of actual sentencing possibilities, and if not, whether accurate information would have made any

different in his decision to enter a plea." Ventura v. Meachum, 957 F.2d 1048, 1058 (2d Cir. 1992). Petitioner claims he received ineffective assistance of

counsel in that trial counsel failed to explain to him (1) that the Government could seek the denial of the acceptance of

responsibility reduction and the imposition of an obstruction of justice enhancement, and (2) that statements he made at the Fatico hearing could negatively affect his sentence. He

maintains that he would not have pleaded guilty had he known that the stipulated sentencing range was not binding. The sworn statements Petitioner made at the time he entered his guilty plea belie his present claim. First, Petitioner

stated that the plea agreement was translated for his review, explained to him by his attorney, and that he fully understood its terms. acceptance granted so The plea agreement provides that the reduction for of responsibility as Perez was not definite, but would be of

long

clearly

demonstrated

acceptance

responsibility to the satisfaction of the Government in his plea allocution and subsequent conduct prior to sentencing. agreement expressly reserved the Government's right The plea to seek

denial of the three-level downward adjustment for acceptance of

- 12 -

responsibility

and

the

imposition

of

a

two-level

upward

adjustment for obstruction of justice, pursuant to U.S.S.G. § 3C1.1. The Court also repeatedly admonished Perez -- and he

confirmed that he understood -- that the sentencing range set forth in the plea agreement was not binding on the Court and that the Court alone would determine his sentence. The Government and the Court also apprised Perez several times of the potential ramifications of providing false

testimony.

The Court explained to him at the Rule 11 hearing on "I have placed you under oath Now, you're charged with

December 1, 2005, for example:

because I want you to tell the truth.

a serious crime, as you know, but you could get yourself in more trouble if you were to lie to me because you are under oath." (Plea. Tr., Gov't Ex. B, at 3.) The Government reminded Perez

at the Fatico hearing of how the Court warned him that he could be prosecuted further if he lied under oath. said that he understood. Furthermore, Petitioner confirmed that he was pleading Each time, Perez

guilty of his own free will, because, in fact, he was guilty. "These statements create a presumption that his plea was knowing and voluntary, a presumption that is not overcome by vague and unsupported assertions that his attorneys failed to properly advise him." United State v. Tremblay, No. 08 Civ. 7030, 2009 WL 1055007, at *7 (S.D.N.Y. Apr. 20, 2009). The

- 13 -

petition is thus rejected. See United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001) (holding that a "district court is entitled to rely upon the defendant's sworn statements, made in open court with the assistance of a translator, that he

understood the consequences of his plea, had discussed the plea with his attorney . . . and had been made no promises except those contained in the plea agreement"); United States v. Soler, 124 F. App'x 62, 64 (2d Cir. 2005) (rejecting defendant's

ineffective assistance claim that he was unaware of sentencing consequences of his plea where, during the plea colloquy,

defendant stated that he understood the consequences); see also Blackledge v. Allison, 431 U.S. 63, 73 (1977) ("Solemn

declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations

unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly

incredible."). For establish counsel. B. Although the United Appellate Counsel States Supreme Court originated the the that reasons he was set forth above, Petitioner assistance of cannot trial

denied

effective

two-part test in Strickland to evaluate the effectiveness of trial counsel, it is equally applicable to a claim of

- 14 -

ineffectiveness

of

appellate

counsel.

See,

e.g.,

Smith

v.

Robbins, 528 U.S. 259, 285 (2000); McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). The duty of appellate counsel is to "support his client's appeal to the best of his ability." Anders, 386 U.S. at 744. If, however, after a "conscientious examination" of the record counsel believes the appeal is "wholly frivolous," he may

request permission to withdraw as counsel and submit a brief "referring to anything that might arguably support the appeal." Id. after "[T]he [Court of Appeals] -- not counsel -- then proceeds, a full examination of all the proceedings, to decide

whether the case is wholly frivolous. . . . [I]f it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." Id. Petitioner alleges that his appellate counsel erred by

failing to challenge Petitioner's sentence on the grounds that (1) the sentence was unreasonable pursuant to 18 U.S.C. §