Gomez v. USA
Filing
6
OPINION AND ORDER: The July 18, 2012 petition for a writ of habeas corpus is denied. In addition, the Court declines to issue a certificate of appealability. Gomez has not made a substantial showing of a denial of a federal right pursuant to 28 U.S.C . § 2253(c), and appellate review is therefore not warranted. The Court also finds pursuant to 28 U.S.C. § 1915(a) (3) that any appeal from this Order would not be taken in good faith. The Clerk of Court shall close the case. (Signed by Judge Denise L. Cote on 12/6/2012) (pl); [*** NOTE: Also docketed in related Criminal Case 08-cr-429(DLC), see Doc.#135. ***] Modified on 12/7/2012 (bw).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
ELVIS GOMEZ,
:
Petitioner,
:
-v:
:
UNITED STATES OF AMERICA,
:
Respondent.
:
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APPEARANCES:
12 Civ. 4799 (DLC)
08 Cr. 429 (DLC)
OPINION AND ORDER
For Petitioner:
Elvis Gomez
# 90552-054
FCI Bennetsville
Federal Correctional Institution
P.O. Box 52020
Bennetsville, SC 29512
PRO SE
For the United States:
Rachel P. Kovner
U.S. Attorney’s Office, SDNY
One St. Andrew’s Plaza
New York, NY 10007
DENISE COTE, District Judge
On June 18, 2012, Elvis Gomez (“Gomez” or “defendant”)
filed a timely petition for a writ of habeas corpus asserting
ineffective assistance of counsel in connection with his entry
of a plea of guilty to a charge that he conspired to distribute
heroin.
Gomez was sentenced on February 4, 2011, principally to
a term of imprisonment of 216 months.
1
His conviction was
affirmed on appeal on June 5, 2012, after appellate counsel
filed an Anders brief.
For the following reasons, the petition
is denied without a hearing.
In his petition, the defendant complains that his attorney
misled him in connection with his execution of a plea agreement
(“Agreement”) with the Government.
According to the defendant,
his attorney promised him that his maximum sentence would be ten
years if he signed the Agreement.
The attorney never told the
defendant that he would be facing a guidelines range of 262 to
327 months’ imprisonment; indeed, his attorney never explained
how the guidelines applied to the defendant, or that there would
be adjustments to the guidelines’ calculations based on his
leadership role or use of a firearm.
The petition does not explain precisely what relief the
defendant seeks.
It is assumed for purposes of this Opinion
that the defendant seeks to vacate his conviction, to withdraw
his plea of guilty, and to proceed to trial.
Because the record
created through the Agreement, the proceeding at which the
defendant entered his plea of guilty, and at his sentencing
flatly contradict the defendant’s petition, this petition may be
denied without the need for an evidentiary hearing.
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BACKGROUND
According to the Government, the defendant and his brothers
supervised a massive heroin conspiracy in the Bronx that
operated multiple heroin mills over the course of many years and
packaged over a thousand kilograms for distribution.
The
defendant assisted the enterprise by supervising several of the
mills, and during the period 2002 to 2003 he delivered drugs to
mills and helped to process the heroin.
In 2003, the defendant
returned to the Dominican Republic.
The defendant was indicted in 2008 on two counts: (1)
conspiracy to distribute and possess with intent to distribute
one kilogram or more of heroin, and (2) possession of a firearm
during and in relation to that drug trafficking crime.
The
first count carried a mandatory minimum term of imprisonment of
ten years; the second carried a mandatory consecutive term of
imprisonment of five years.
The defendant was arrested in the
Dominican Republic on March 16, 2010, and extradited on April
22, 2010.
The Agreement
On October 25, 2012, the parties executed the Agreement in
which the defendant agreed to plead to a drug conspiracy charge
carrying a mandatory minimum term of imprisonment of five years
and a maximum sentence of 40 years (“(b)(1)(B)” charge) in
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satisfaction of the Count One conspiracy charge, which carried a
mandatory minimum term of imprisonment of ten years (“(b)(1)(A)”
charge).
The defendant and Government stipulated to a
guidelines range of 262 to 327 months’ imprisonment, which
reflected a two-level firearms adjustment and a two-level role
adjustment.
They agreed that a sentence within the range would
“constitute a reasonable sentence,” but that either party could
seek a non-guidelines sentence.
The Plea
On the same day that the defendant executed the Agreement,
October 25, the defendant and his brother Sotero Gomez entered
pleas of guilty before this Court.
The defendant was placed
under oath and represented that he had had a sufficient
opportunity to discuss with his attorney the charge to which he
was pleading guilty, any defenses to that charge, and the
consequences of the plea.
He stated that he was satisfied with
the representation his attorney was giving him.
The Court
advised the defendant of his right to proceed to trial, and all
the rights set forth in Rule 11, and the defendant acknowledged
that he understood those rights.
The Court then advised the defendant of the charge against
him contained in Count One, including that he was charged with
managing the production of thousands of packages of heroin,
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possessing kilogram quantities of heroin and possessing guns to
protect the heroin and narcotics proceeds, from 2002 until the
summer of 2003.
The Court then explained in detail the
statutory sentencing provisions that applied to the crime
charged in Count One, including that while Count One contained a
(b)(1)(A) charge, the Agreement provided that the Government
would accept a plea to a (b)(1)(B) charge in satisfaction of the
Indictment.
The Court also described the safety valve provision
of the law, which would permit the Court to impose a sentence
below the mandatory minimum term of imprisonment that would
otherwise apply.
The defendant acknowledged that he had
discussed this provision of the law with his attorney.
At this
point, the following colloquy occurred:
Q: Now, do you understand that if your attorney or
anyone else has attempted to predict to you what your
sentence will be that their prediction could be wrong?
. . . Do you understand that, Mr. Elvis Gomez?
A:
Yes.
Q: No one, not your attorney, not the government’s
attorney, no one can give you any assurance of what
your sentence will be because I am going to decide
your sentence but I am not going to do it now. I am
going to wait until I get a Pre-Sentence Report
prepared by the Probation Department, do my own
calculation of what your sentencing guidelines range
is, decide whether I should depart up or down from
that range, and look at all the other factors and
facts before me, and only then will I decide what a
reasonable sentence is for you. . . . Do you
understand that, Mr. Elvis Gomez?
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A:
Yes.
Q: Do you understand that even if your sentence is
different from what your attorney or anyone else has
told you it might be, even if it’s different from what
is calculated in a written agreement that you have
with the government, you are still going to be bound
by your plea of guilty and cannot withdraw your plea
of guilty. . . . Do you understand that, Mr. Elvis
Gomez?
A:
Yes.
After this discussion, the Court reviewed the Agreement
with the defendant.
The defendant told the Court that the
Agreement had been translated to him, that he had discussed it
with his attorney and that he thought that he understood the
document when he signed it.
The Court reviewed several terms of
the Agreement with the defendant, including the (b)(1)(B)
penalties, and the parties’ agreement that the guidelines range
is 262 to 327 months.
The defendant acknowledged that he had
given up his right to litigate his sentence so long as his
sentence did not exceed 327 months in prison.
During his allocution, the defendant admitted selling
heroin from 2002 to 2003 in the Bronx.
The Court accepted the
plea as knowingly and voluntarily entered by the defendant.
The PSR
The Pre-Sentence Report (“PSR”) advised the defendant that
his guidelines range was 262 to 327 months’ imprisonment.
recommended a sentence of 262 months’ imprisonment.
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It
The Sentence
The two brothers were sentenced on February 4, 2011.
The
Court confirmed that the defendant was not objecting to the
PSR’s calculation of a guidelines range of 262 to 327 months’
imprisonment, which the Court explained included adjustments for
his role in the offense and for his use of firearms, and which
the Court also noted was identical to the range calculated in
the Agreement.
The Court summarized the arguments in the
defendant’s written sentencing submissions, which included his
rehabilitation, the prison conditions in the Dominican Republic
where he was incarcerated prior to extradition, and his close
connections with family members.
Defense counsel requested a five year sentence.
The
defendant spoke and emphasized his religious conversion and
family.
The Court imposed a non-guidelines sentence of principally
216 months’ imprisonment.
The Court explained that the
defendant had been fortunate in being outside the country when
the conspiracy was brought to an end by the Government.
After
noting that it had no reason to believe the defendant would have
left the enterprise otherwise, the Court added that there was
also no evidence of the defendant’s continued involvement in
drug activity since the time the Government arrested his co7
conspirators.
Thus, while “this is not a typical rehabilitation
case, . . . it is nonetheless a rehabilitation case.”
The
defendant’s brother was sentenced to 240 months’ imprisonment.
DISCUSSION
The defendant contends that his attorney lied to him about
the sentence that he faced.
According to Gomez, his attorney
promised him that the maximum sentence that he faced was ten
years, and never told him that his guidelines range was 262 to
327 months’ imprisonment or how the guidelines would be applied
to his case.
Indeed, his attorney represented that he had a
“good chance” of receiving a sentence of only five years.
Finally, the attorney did not discuss with Gomez his option of
proceeding to trial.
Before addressing the substance of these contentions, it is
important to observe that in his Agreement, the defendant waived
his right to collaterally attack a sentence that did not exceed
327 months’ imprisonment.
enforceable.
Such an agreement is presumptively
United States v. Arevalo, 628 F.3d 93, 98 (2d Cir.
2010); Garcia-Santos v. United States, 273 F.3d 506, 509 (2d
Cir. 2001) (per curiam).
The Second Circuit has explained the
importance of enforcing such waivers:
In no circumstances . . . may a defendant, who has
secured the benefits of a plea agreement and knowingly
and voluntarily waived the right to appeal a certain
sentence, then appeal the merits of a sentence
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conforming to the agreement. Such a remedy would
render the plea bargaining process and the resulting
agreement meaningless.
United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.
2003) (per curiam).
Nonetheless, a claim of ineffective assistance of counsel
will survive a waiver if the claim relates to advice counsel
gave with regard to entering the plea or the process by which
the defendant agreed to plead guilty.
See Parisi v. United
States, 529 F.3d 134, 138-39 (2d Cir. 2008).
Thus, a waiver of
the right to challenge a sentence will not be valid where “the
waiver was not made knowingly, voluntarily, and competently.”
United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000).
In determining that a waiver of the right to file a Section
2255 petition was knowing and voluntary courts have considered
factors such as: (1) whether the petitioner signed the plea
agreement; (2) whether the petitioner stated during the plea
colloquy that he had read and understood the plea agreement; (3)
whether the petitioner, having been advised of the right to
appeal, failed to take a direct appeal from the sentence; and
(4) whether the petitioner failed to assert in his Section 2255
petition that he did not understand the plea agreement’s waiver
clause.
See Garcia-Santos, 273 F.3d at 508.
Each of these
factors supports enforcement of the Agreement in this case.
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Nor may Gomez escape the consequences of the waiver of his
right to file this petition by framing his claim as an
ineffective assistance of counsel claim.
Each of the assertions
he makes against his attorney for either failing to give him
certain advice, or misleading him about his sentencing exposure,
is directly and fully contradicted by the record.
During his plea allocution, the defendant was fully advised
of his right to proceed to trial, and acknowledged understanding
that he had that right.
The Agreement which Gomez executed
unambiguously states his stipulated guidelines range.
At his
plea, the defendant acknowledged that the Agreement had been
translated for him, that it provided for a sentencing guidelines
range of 262 to 327 months, and that by executing the Agreement
he had waived his right to challenge his sentence so long as it
did not exceed 327 months’ imprisonment.
Moreover, the Court
advised the defendant during the allocution of his sentencing
exposure, which included a maximum term of imprisonment of 40
years.
The defendant acknowledged that he understood this.
The
Court informed the defendant that if his attorney or anyone else
attempted to predict the defendant’s sentence that such a
prediction could be wrong, and that the Court would decide the
sentence.
Gomez again acknowledged that he understood.
10
The
PSR, which was translated for the defendant, also described
these same sentencing guidelines.
A defendant's factual assertions in his petition which are
contradicted by his statements under oath to the Court may be
disregarded.
See Puglisis v. United States, 586 F.3d 209, 214
(2d Cir. 2009).
Gomez has not shown, when the record of his
plea allocution and sentencing proceeding are considered, that
he is entitled to a hearing on his ineffective assistance of
counsel claim or that his petition should be granted.
CONCLUSION
The July 18, 2012 petition for a writ of habeas corpus is
denied.
In addition, the Court declines to issue a certificate
of appealability.
Gomez has not made a substantial showing of a
denial of a federal right pursuant to 28 U.S.C. § 2253(c), and
appellate review is therefore not warranted.
413 F.3d 192, 195 (2d Cir. 2005).
Love v. McCray,
The Court also finds pursuant
to 28 U.S.C. § 1915(a) (3) that any appeal from this Order would
not be taken in good faith.
438, 445 (1962).
Coppedge v. United States, 369 U.S.
The Clerk of Court shall close the case.
SO ORDERED:
Dated:
New York, New York
December 6, 2012
United Stiates District Judge
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