Echeverry v. USA
OPINION AND ORDER: For the foregoing reasons, Echeverrys section 2255 motion is denied in its entirety as is his Motion to Amend. The remaining issue is whether to grant a Certificate of Appealability (COA). For a COA to issue, a petitioner must make a "substantial showing of the denial of a constitutional right." A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely that "reasonable jurists could debate whet her... the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further."' Petitioner has made no such showing. Accordingly, this Court declines to iss ue a Certificate of Appealability. Furthermore, this Court finds that pursuant to 28 U.S.C. 1915(a)(3), any appeal taken from this Order would not be in good faith. The Clerk of the Court is directed to close this case and the section 2255 motion docketed in criminal case number 04 CR 1162. (Signed by Judge Shira A. Scheindlin on 10/7/2013) (rsh).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
12 Civ. 8411 (SAS)
04 CR 1162 (SAS)
UNITED STATES O~' AMERICA
SHIRA A. SCHEINDLIN, U.S.D.J.:
On September 16, 2005, petitioner Carlos Echeverry waived
indictment and pled guilty to Superseding Information S 1 04 CR 1162 (SAS ) (the
"S 1 Information"). The S 1 Information charged Echeverry with two counts: Count
One charged Echeverry with conspiring to distribute, and to possess with the intent
to distribute, (a) five or more kilograms of cocaine, (b) one or more kilograms of
heroin, and (c) 50 or more grams of cocaine base, commonly known as "crack," in
violation of Title 21, United States Code, section 846. Count Two charged
Echeverry with aiding and abetting the use, carrying, and discharge of a firearm
during and in relation to a drug-trafficking offense in violation of Title 18, United
States Code, section 924(c) ("section 924(c)"). Count One carried a statutory
mandatory minimum term of 120 months in custody while Count Two carried a
statutory mandatory minimum term of 120 consecutive months in custody.1
On June 29, 2010, this Court sentenced Echeverry to the mandatory
minimum term of 240 months imprisonment, to be followed by concurrent terms of
five years of supervised release. Echeverry appealed his sentence, and the Second
Circuit affirmed the judgment on August 19, 2011.2 Echeverry is currently serving
Now proceeding pro se, Echeverry filed the instant habeas motion
pursuant to Title 28, United States Code, section 2255 (“section 2255”) on
November 14, 2012, which he supplemented with a memorandum of law dated
April 1, 2013.3 Echeverry’s section 2255 motion states the following grounds for
relief: (1) Petitioner was denied his Sixth Amendment right to counsel and his Fifth
Amendment right against self-incrimination because he provided a proffer to the
See 21 U.S.C. § 841(b)(1)(A); 18 U.S.C. § 924(c)(1)(A)(iii).
See United States v. Echeverry, 649 F.3d 159, 160 (2d Cir. 2011) (per
curiam) (holding that Echeverry was subject to the ten-year, firearm-discharge
enhancement when he and an accomplice brandished a firearm during a
drug-related attempted robbery and the intended victim managed to grab the gun
and shoot the accomplice).
See Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (“section 2255 motion”); Petitioner’s
Memorandum in Support of Motion to Vacate.
Government without counsel present (Grounds One and Four); (2) Petitioner was
deprived of the effective assistance of counsel in connection with his plea
negotiations and hearing because counsel did not adequately explain the charges to
him (Ground Two); and (3) Petitioner was denied effective assistance of counsel
on appeal because appellate counsel did not raise the argument that Petitioner’s
admission concerning the firearm was obtained in violation of his Fifth and Sixth
Amendment rights (Ground Three). For the reasons set forth below, Echeverry’s
habeas motion is denied.
Echeverry’s Criminal Conduct and Proffer Sessions
On September 27, 2004, Echeverry handed a jacket containing 315
grams of heroin to an undercover detective and then discussed payment terms with
that detective.4 Echeverry was arrested several days later, on October 4, 2004.
That same day, he was presented before Magistrate Judge Frank Maas. Pursuant to
Rule 5 of the Federal Rules of Criminal Procedure, Echeverry was advised of his
rights and Robert M. Baum was appointed to represent him. Bail conditions were
set but Echeverry was remanded because he could not satisfy them.
See 5/22/13 Declaration of Detective John R. Salvitti (“Salvitti Decl.)
¶ 3 and Sealed Complaint, Ex. A; PreSentence Report (“PSR”) ¶¶ 8-9.
On October 19, 2004, a Grand Jury returned an Indictment charging
Echeverry with distribution, and possession with intent to distribute, of
approximately 315 grams of heroin. The evidence against Echeverry included: (1)
the testimony of the undercover detective that Echeverry handed him a jacket
containing heroin; (2) the testimony of agents conducting surveillance who
witnessed the transaction; and (3) the recovery of approximately 315 grams of
heroin. In addition, the conversation between Echeverry and the undercover
detective was recorded.
On March 4, 2005, Paul E. Warburgh, Jr. filed a notice of appearance
as Echeverry’s counsel. Beginning March 31, 2005, Echeverry attended a series of
proffer sessions with the Government in an effort to cooperate. These meetings
were conducted pursuant to proffer agreements.5 As indicated on the March 31,
2005 Proffer Agreement, the meeting on that date was attended by Echeverry,
Warburgh, Assistant United States Attorney (“AUSA”) Daniel Stein, and Detective
John R. Salvitti of the New York City Police Department (“NYPD”). A Spanish
interpreter was also present. Following standard practice, the Government
explained at the outset that the purpose of the meetings was for Echeverry to
See 3/31/05 Proffer Agreement, Ex. B to the Salvitti Decl. This
Proffer Agreement was signed by Echeverry, Warburgh, AUSA Stein, and
disclose all prior criminal conduct in order for the Government to evaluate his
Echeverry attended a second proffer session with the Government on
April 25, 2005, which was also conducted pursuant to a proffer agreement.6 That
meeting was attended by Echeverry, Warburgh, AUSA Stein, Detective Salvitti,
and a Spanish interpreter. Based on the March 2005 Proffer Agreement, it appears
that Echeverry may have attended a third proffer session with the Government on
August 1, 2005.7 The 8/1/05 Date of Continuation section was initialed by
Echeverry, Warburgh, AUSA Stein, and Detective Salvitti. The Government did
not submit a signed Proffer Agreement for the August 1, 2005 proffer session.
During the first two proffer sessions, Echeverry disclosed that he had
been involved in several multiple kilogram transactions involving cocaine and
heroin with various drug traffickers, as well as a transaction involving 780 grams
of crack cocaine. During the April 2005 proffer session, Echeverry further
disclosed that on one occasion in September 2002, he went with an accomplice to
See 4/25/05 Proffer Agreement, Ex. B to the Salvitti Decl. This
Proffer Agreement was signed by Echeverry, Warburgh, AUSA Stein, and
See 3/31/05 Proffer Agreement, Dates of Continuation.
collect a drug-related debt while carrying a firearm.8 Echeverry acknowledged that
he brandished the firearm but that the intended victim grabbed the gun during the
confrontation and fired it, causing non-fatal injuries to Echeverry’s accomplice.9
Defense counsel was present at the proffer sessions when Echeverry made these
Echeverry’s Waiver of Indictment and Guilty Plea
Based on the proffer session disclosures, and pursuant to a written
Cooperation Agreement, Echeverry pled guilty to the S1 Information on September
16, 2005. Echeverry’s plea hearing was conducted before United States Magistrate
Judge Kevin Nathaniel Fox, with the aid of a Spanish interpreter. Warburgh
represented Echeverry at the plea hearing. At the hearing, Echeverry waived his
right to have the Government present the charges to the Grand Jury and consented
to proceeding by Information.10 Judge Fox confirmed that Echeverry understood
See Salvitti Decl. Ex. C at 5.
Salvitti Decl. ¶ 8; PSR ¶ 11. The PSR initially stated that Echeverry
brandished a firearm in furtherance of a plan to recover stolen narcotics, which
resulted in the discharge of that firearm. See PSR ¶ 1. At the request of
Echeverry’s attorney at sentencing, I amended that portion of the report by adding
the following: “The alleged victim disarmed the accomplice. The alleged victim
then discharged the weapon. That discharge injured the accomplice.” J&C,
Statement of Reasons, page 1.
See 9/16/05 Transcript of Plea Hearing (“Tr.”) at 4-5.
the nature of the proceedings and that he was competent to enter an informed guilty
plea.11 As part of this assessment, Judge Fox asked Echeverry if he had a full
opportunity to speak with his attorney about the charges in the S1 Information, to
which he replied in the affirmative.12 Echeverry told the Court that he was satisfied
with his attorney.13
Judge Fox next reviewed the charges in the S1 Information and the
maximum and mandatory minimum terms of imprisonment associated with each. 14
Echeverry confirmed that he understood the nature of each charge and the
maximum penalties he was facing by pleading guilty.15 Judge Fox then advised
Echeverry of the rights he would waive by pleading guilty.16 Judge Fox informed
Echeverry that he had a right to: (1) plead not guilty and proceed to trial by jury;
(2) have the Government bear the burden of proving his guilt beyond a reasonable
doubt by competent evidence at trial; (3) be represented by an attorney at all stages
of the proceeding and, if necessary, an attorney would be appointed for him; (4)
See id. at 6-7.
See id. at 7.
See id. at 8-11.
See id. at 13.
See id. at 12-13.
testify if he so desired, confront and question any witness against him, and not be
forced to incriminate himself; and (5) have compulsory process used to compel
witnesses to testify in his defense.17 Echeverry affirmed that he understood each of
the rights and that he was waiving such rights by entering a plea of guilty.18 After
the Government stated the elements of the offenses charged in the S1 Information,
Echeverry stated that he still wished to plead guilty.19
Echeverry confirmed that he had discussed the application of the
Sentencing Guidelines with his attorney.20 Judge Fox thoroughly reviewed the
Cooperation Agreement with Echeverry who confirmed that: he read and reviewed
the Cooperation Agreement with his attorney before signing it; he fully understood
the Cooperation Agreement; no one had forced him to sign the Cooperation
Agreement; and the Cooperation Agreement constituted the complete and total
understanding among himself, his attorney and the Government.21 Echeverry
acknowledged that his plea was being made voluntarily and of his own free will.22
See id. at 13.
See id. at 14.
See id. at 15-18.
See id. at 15.
Judge Fox then asked Echeverry if he had committed the offenses in
the S1 Information.23 With respect to Count One, Echeverry responded in the
Your Honor, I, with other people, possessed for sale
narcotics, crack cocaine, in Westchester and Manhattan.
Cocaine, crack cocaine, and heroin. And I agreed to do so
and I knew it was unlawful.24
Echeverry confirmed that from 2001 to the date of his arrest, he had conspired to
distribute more than five kilograms of cocaine, more than 50 grams of crack, and
more than one kilogram of heroin.25 With respect to Count Two of the S1
Information, Echeverry stated: “In September 2002, I was in a car in Manhattan
with other people, and one of those people fired a gun. I was there to collect some
money for the sale of drugs.”26
When Judge Fox asked defense counsel and the Government whether
they were aware of any reason why the defendant should not plead guilty, both said
no.27 Based on the allocution, Judge Fox recommended that this Court accept
See id. at 18.
See id. at 18-20.
Id. at 20.
See id. at 21.
Echeverry’s guilty plea.28 At the conclusion of the plea hearing, Echeverry was
released on bail so that he could cooperate with law enforcement.29
Echeverry’s Breach of the Cooperation Agreement
On February 8, 2007, Echeverry was arrested and charged in New
York State Supreme Court, New York County, with possession and sale of a
controlled substance.30 The Government construed this as a breach of Echeverry’s
Cooperation Agreement, a provision of which required him to commit no further
crimes. The Government notified this Court that it would not be making a 5K1.1
motion for a reduction in sentence based on Echeverry’s cooperation.
In advance of sentencing, Echeverry’s newly appointed counsel,
George Goltzer,31 argued that the conduct underlying Count Two of the S1
Information – the brandishing of a firearm which was fired by Echeverry’s
See id. at 21-22.
See Salvitti Decl. ¶ 9.
See PSR ¶¶ 36-37. On January 19, 2010, Echeverry pled guilty in
New York Supreme Court, New York County, to criminal sale of a controlled
substance in the third degree. On July 12, 2010, after this Court imposed sentence,
he was sentenced to time served.
On May 1, 2008, Warburgh was relieved as Echeverry’s counsel and
Goltzer was appointed to represent him.
intended victim – should not result in the discharge enhancement set forth in
section 924(c)(1)(A)(iii). Echeverry argued that because neither he nor his
accomplice had possession of the firearm at the time of discharge, the discharge
did not occur during the offense, thus making the enhancement inapplicable.
Citing Dean v. United States,32 the Government argued that the language of section
924(c)(1)(A)(iii) does not require an intentional discharge and that the
enhancement applies even if the discharge was accidental.
At sentencing, which took place on June 29, 2010, this Court agreed
with the Government’s argument that Dean controlled and that the discharge
enhancement applied. In light of that ruling, the Court concluded that Echeverry
was subject to a mandatory minimum term of imprisonment of 240 months,
comprising a 120-month term on Count One and a mandatory consecutive
120-month term on Count Two. Although the Guidelines called for a somewhat
higher sentence of 288 to 330 months imprisonment, the Court concluded that the
mandatory minimum sentence was sufficient, but not greater than necessary, in
light of the various factors set forth in Title 18, United States Code, Section
556 U.S. 568, 577 (2009) (“Section 924(c)(1)(A)(iii) requires no
separate proof of intent. The 10–year mandatory minimum applies if a gun is
discharged in the course of a violent or drug trafficking crime, whether on purpose
or by accident.”).
Echeverry appealed his conviction and sentence, arguing that the
guilty plea allocution was legally insufficient to warrant the “discharge”
enhancement under 18 U.S.C. § 924(c)(1)(A)(iii) because Echeverry and his
accomplice were disarmed when the victim grabbed the gun and shot Echeverry’s
accomplice. On August 19, 2011, the Second Circuit affirmed the judgment,
finding that Echeverry was subject to the firearm discharge enhancement.33
“Because collateral challenges are in tension with society’s strong
interest in the finality of criminal convictions, the courts have established rules that
make it more difficult for a defendant to upset a conviction by collateral, as
opposed to direct, attack.”34 Section 2255 allows a convicted person held in
federal custody to petition the sentencing court to vacate, set aside or correct a
See Echeverry, 649 F.3d at 160 (“Hence, the statute [18 U.S.C. §
924(c)(1)(A)] provides that the ten-year mandatory minimum applies ‘if the
firearm is discharged,’ and it does not require that the firearm be discharged by the
defendant. Here, as Echeverry possessed a firearm in furtherance of a drug-related
crime and the firearm was discharged during the course of that crime, by its plain
terms the statute applies.”).
Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010)
(quotation marks and citations omitted).
sentence. Specifically, “[s]ection 2255 provides that a prisoner sentenced by a
federal court may move to have that sentence vacated, set aside or corrected if he
or she claims that the court, in sentencing him or her, violated the Constitution or
the laws of the United States, improperly exercised jurisdiction, or sentenced him
or her beyond the maximum time authorized by law.”35
A properly filed motion under section 2255 must allege that: (1) the
sentence was imposed in violation of the Constitution or laws of the United States;
(2) the sentencing court was without jurisdiction to impose such a sentence; (3) the
sentence was in excess of the maximum authorized by law; or (4) the sentence is
otherwise subject to collateral attack.36 Thus, collateral relief under section 2255 is
available “only for a constitutional error, a lack of jurisdiction in the sentencing
court, or an error of law or fact that constitutes ‘a fundamental defect which
inherently results in a complete miscarriage of justice.’”37 A motion under section
2255 must set forth “the facts supporting each ground” for relief.38
Thai v. United States, 391 F.3d 491, 493 (2d Cir. 2005).
See 28 U.S.C. § 2255.
United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v.
United States, 368 U.S. 424, 428 (1962)).
Rule 2(b)(2) of the Rules Governing Section 2255 Proceedings for the
United States District Courts. Accord LoCascio v. United States, 395 F.3d 51, 57
(2d Cir. 2005) (“‘The petitioner must set forth specific facts which he is in a
A petitioner is entitled to a hearing on a motion filed under section
2255 “[u]nless the motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief.”39 To warrant a hearing on a motion under
section 2255, a petitioner’s “application must contain assertions of fact that [the]
petitioner is in a position to establish by competent evidence.”40 The court must
then determine whether, viewing the record “in the light most favorable to the
petitioner, the petitioner, who has the burden, may be able to establish at a hearing
a prima facie case for relief.”41
However, “[a]iry generalities, conclusory assertions and hearsay
statements will not suffice because none of these would be admissible evidence at
a hearing.”42 Nor is a court required to presume the credibility of factual assertions
“where the assertions are contradicted by the record in the underlying
position to establish by competent evidence.’” (quoting Dalli v. United States, 491
F.2d 758, 760 (2d Cir. 1974)) (alteration omitted)).
28 U.S.C. § 2255(b). See also Pham v. United States, 317 F.3d 178,
184-85 (2d Cir. 2003).
United States v. Aiello, 814 F.2d 109, 113 (2d Cir. 1987).
Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009).
Aiello, 814 F.2d at 113-14. Accord Haouari v. United States, 510
F.3d 350, 354 (2d Cir. 2007).
proceeding.”43 Moreover, if it “plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving party is not entitled to
relief, the judge must dismiss the motion.”44
Depending on the allegations in a section 2255 motion, a “court may
use methods under [§] 2255 to expand the record without conducting a full-blown
testimonial hearing.”45 Potential methods available to a court to supplement the
record include “‘letters, documentary evidence, and, in an appropriate case, even
Ineffective Assistance of Counsel
To establish his claim of ineffective assistance of counsel, a petitioner
must show that his attorney’s performance fell below “an objective standard of
reasonableness” under “prevailing professional norms” and that he suffered
prejudice as a result of the representation that he received.47 A court considering
an ineffective assistance claim must apply a “strong presumption” that counsel’s
Puglisi, 586 F. 3d at 214.
Id. at 213.
Chang v. United States, 250 F.3d 79, 86 (2d Cir. 2001) (citing
Blackledge v. Allison, 431 U.S. 63, 81-82 (1977)).
Id. (quoting Raines v. United States, 423 F.2d 526, 529-30 (4th Cir.
Strickland v. Washington, 466 U.S. 668, 687-88, 693-94 (1984).
representation was within the “wide range” of reasonable professional assistance.48
The petitioner’s burden is to show “‘that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.’”49 “Strategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable.”50 In evaluating
counsel’s performance, the reviewing court must make every effort to “eliminate
the distorting effects of hindsight.”51
A defendant is entitled to the effective assistance of counsel in
connection with plea negotiations because one of the basic duties of a defense
attorney is to provide clients with the benefit of his advice on whether to plead
guilty.52 “As part of this advice, counsel must communicate to the defendant the
terms of the plea offer, and should usually inform the defendant of the strengths
Id. at 689. Accord Bell v. Cone, 535 U.S. 685, 698 (2002).
Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (quoting Strickland,
466 U.S. at 687).
Strickland, 466 U.S. at 690. Accord United States v. Kirsh, 54 F.3d
1062, 1071 (2d Cir. 1995).
Strickland, 466 U.S. at 689. Accord Harrington, 131 S. Ct. at 788
(stating that “the standard for judging counsel’s representation is a most deferential
See Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012); Purdy v. United
States, 208 F.3d 41, 44-45 (2d Cir. 2000).
and weaknesses of the case against him, as well as the alternative sentences to
which he will most likely be exposed.”53 An attorney’s failure to communicate a
plea offer to his client or advise his client adequately about the decision to plead
guilty, may constitute constitutionally deficient performance.54 To establish a
Sixth Amendment violation, the petitioner must establish that his attorney failed to
communicate a plea offer or failed to provide objectively reasonable advice about
the decision to plead guilty.55
In addition to proving that counsel’s performance was objectively
deficient, a petitioner must also prove that counsel’s errors actually prejudiced his
case. “It is not enough ‘to show that the errors had some conceivable effect on the
outcome of the proceeding.’”56 Rather, “[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome.”57 To prove actual prejudice in
Purdy, 208 F.3d at 45. Accord Missouri v. Frye, 132 S. Ct. 1399,
1408 (2012) (“defense counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be favorable to the
See, e.g., Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999);
United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998); Boria v. Keane, 99
F.3d 492, 496-97 (2d Cir. 1996).
See Gordon, 156 F.3d at 380; Boria, 99 F.3d at 496-98.
Harrington, 131 S. Ct. at 787 (quoting Strickland, 466 U.S. at 693).
Strickland, 466 U.S. at 694.
plea proceedings, a petitioner must demonstrate “‘a reasonable probability, that but
for counsel’s errors, he would not have pleaded guilty, and would have insisted on
going to trial.’”58 This burden is particularly difficult to meet where a defendant
was aware of the “actual sentencing possibilities” and nevertheless decided to
plead guilty.59 The Second Circuit has held that the statement regarding the
petitioner’s claim that he would have accepted or rejected the plea had he been
properly advised must be “directly attributable to the habeas petitioner, whether it
be through sworn testimony in the main proceeding or by a sworn affidavit in
support of the motion.”60
A claim that appellate counsel was ineffective can succeed only if
“counsel omitted significant and obvious issues while pursuing issues that were
clearly and significantly weaker” and “there was a reasonable probability that the
Premo v. Moore, 131 S. Ct. 733, 743 (2011) (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985)).
See Ventura v. Meachum, 957 F.2d 1048, 1058 (2d Cir. 1992). See
also United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005) (stating that where a
defendant’s specific claim is that counsel misled him as to the possible sentence
which might result from his guilty plea, the issue is whether the defendant was
aware of the actual sentencing possibilities, and if not, whether accurate
information would have made any difference in his decision to enter a plea).
Puglisi, 586 F. 3d at 216-17.
[omitted claim] would have been successful.”61 “To prove ineffective assistance
of appellate counsel, ‘it is not sufficient for the habeas petitioner to show merely
that counsel omitted a nonfrivolous argument, for counsel does not have a duty to
advance every nonfrivolous argument that could be made.’”62 Moreover, “[i]t is
well established that ‘[t]he failure to include a meritless argument does not fall
outside the wide range of professionally competent assistance to which [a
defendant is] entitled.’”63
Echeverry argues that he received ineffective assistance of counsel
because: (1) his attorney (Warburgh) did not attend a proffer session with the
Government where he admitted to significant criminal conduct; and (2) his
attorney failed to explain the criminal charges and terms of his Cooperation
Agreement to him. In order to prevail on these claims, Echeverry must
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quotation marks
Cuoco v. United States, 208 F.3d at 27, 32 (2d Cir. 2000) (quoting
Mayo, 13 F.3d at 533).
Forbes v. United States, 574 F.3d 101, 106 (2d Cir. 2009) (alteration
in original) (quoting Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (internal
quotation marks omitted)).
demonstrate that his counsel’s performance was objectively unreasonable and that
he was prejudiced as a result of that representation. Echeverry fails to establish
either prong of the Strickland test.
Echeverry claims that on the evening before his fourth proffer session,
Warburgh’s secretary visited him in prison and told him that Warburgh was not
available for the proffer session due to an accident but that Echeverry should attend
anyway and tell the Government everything he knew.64 However, the claim that
Warburgh was not present at the proffer session where Echeverry admitted to the
discharge of a firearm is factually incorrect. Detective Salvitti states in his
Declaration that Echeverry’s counsel was, in fact, present during the pre-plea
proffer sessions at which Echeverry disclosed his past criminal conduct, including
the firearm incident.65 Detective Salvitti’s statements are supported by the March
31, 2005 and April 25, 2005 Proffer Agreements, both of which are signed by
Warburgh states that he does not recall this incident. See 5/14/13
Declaration of Paul E. Warburgh (“Warburgh Decl.”), submitted in connection
with the instant motion, ¶¶ 3-4. The documentary record contradicts Echeverry’s
claim. The record indicates that there were only three proffer sessions before
Echeverry’s guilty plea, that the admission at issue was made at the April 25, 2005
proffer, and that Warburgh was present at that proffer session. See Salvitti Decl. ¶¶
5-8 and Exs. B, D).
See Salvitti Decl. ¶¶ 5-8.
Warburgh.66 Furthermore, Special Agent Acheson’s handwritten notes of the April
25, 2005 proffer session indicate that Echeverry discussed the firearm incident at
that proffer.67 Finally, Warburgh states that he does not recall missing any of
Echeverry’s proffer sessions and that it was his longstanding practice that if he
could not attend a proffer meeting, he would reschedule it.68
In sum, the documentary evidence – including signed Proffer
Agreements, contemporaneous handwritten notes, and a Declaration from defense
counsel – clearly shows that counsel was present at the proffer session where
Echeverry disclosed the discharge of a firearm. Accordingly, Echeverry’s claim
that his constitutional rights were violated because of counsel’s alleged absence
from a purported fourth proffer session is without merit. Ground One is therefore
Echeverry also claims that his Fifth Amendment rights were violated
because the Government allegedly went forward with the proffer sessions without
counsel being present (Ground Four). Echeverry argues that he should have been
given Miranda warnings at the proffer session where his counsel was allegedly
See id., Ex. B.
See id., Ex. D at 4-5.
See Warburgh Decl. ¶ 4.
absent. This claim fails because, as noted above, it is factually inaccurate. In any
event, under Federal Rule of Criminal Procedure 5, the magistrate judge presiding
over a defendant’s initial presentment is required to advise the defendant of his
right not to make statements to the authorities and to have counsel present at all
meetings with the authorities. Echeverry does not assert that Magistrate Judge
Maas failed to comply with these requirements at his presentment on October 4,
2004. Because there is every reason to believe that Echeverry had already been
formally advised of his rights, his fourth ground for relief is also rejected.
Echeverry’s claim that counsel provided inadequate advice in
connection with his guilty plea is contradicted by the sworn statements he made at
his plea allocution on September 16, 2005. At his guilty plea hearing, Echeverry
voluntarily and knowingly consented to the filing of the S1 Information which
contained the 924(c) gun charge . Echeverry told Judge Fox that he was guilty of
that crime, stating: “In September 2002 I was in a car in Manhattan with other
people, and one of the people fired a gun. I was there to collect some money from
the sale of drugs.” 69 Moreover, contrary to his present assertions, Echeverry told
Judge Fox that: (1) he had a full opportunity to speak with his attorney about the
Tr. at 20.
charges in the information and how he wishes to plead to them; (2) he was satisfied
with the assistance that his attorney had rendered; and (3) that he read and
reviewed the Cooperation Agreement with his attorney before signing it, that he
fully understood the Cooperation Agreement, that no one had forced him to sign
the Cooperation Agreement, and that the Cooperation Agreement constituted the
complete and total understanding among himself, his attorney, and the
Government.70 “Such ‘[s]olemn declarations in open court carry a strong
presumption of verity.’”71 Echeverry has not alleged any facts that would justify
overturning that strong presumption.72
Moreover, Echeverry’s statements at the guilty pea hearing are
consistent with Warburgh’s Declaration, in which he states that in his many years
as a defense attorney it has always been his practice to “painstakingly explain
everything to a defendant prior to any guilty plea proceeding” and that he is sure
See id. at 15-18.
Castillo v. United States, Nos. 01 Civ. 6671, 99 CR 513, 2006 WL
2621081, at *2 (S.D.N.Y. Sept. 13, 2006) (quoting Blackledge v. Allison, 431 U.S.
63, 74 (1977)).
See Ventura, 957 F.2d at 1058 (observing that a district court’s
explanation of actual sentencing possibilities at a plea allocution may be sufficient
to cure any misrepresentation by counsel regarding the defendant’s probable
that is what happened here.73 Given the sworn statements he made at his plea
allocution, and Warburgh’s Declaration, Echeverry’s ineffective assistance claim
must be rejected because his contentions are wholly incredible.74
Echeverry cannot establish that his counsel’s conduct was objectively
unreasonable. His claim that his attorney failed to attend the relevant proffer
session is simply untrue and his claims that he did not understand the nature of the
charges against him or his Cooperation Agreement are belied by his sworn
statements at his plea allocution. Nor does Echeverry satisfy the prejudice prong
of the Strickland test. Echeverry does not assert in a sworn affidavit that had he
been advised differently, he would not have pled guilty pursuant to a cooperation
agreement and would have insisted on going to trial. This deficiency is fatal to this
ineffective assistance claim.75 In light of the overwhelming evidence against
Echeverry, the likelihood of conviction at trial, and of a severe sentence, was
extremely high. It follows that Echeverry has failed to demonstrate that he was
Warburgh Decl. ¶ 5.
See Blackledge, 431 U.S. at 74. See also Adames v. United States,
171 F.3d 728, 732 (2d Cir. 1999) (“A criminal defendant’s self-inculpatory
statements made under oath at his guilty plea proceeding carry a strong
presumption of verity and are generally treated as conclusive in the face of a
defendant’s later attempt to contradict them.”) (quotation marks and citations
See Puglisi, 586 F.3d at 217.
prejudiced by the representation that Warburgh provided.76 Echeverry’s second
ground for relief is therefore rejected.
Echeverry also argues that his appellate counsel, Goltzer, was
constitutionally ineffective for failing to argue on appeal that his Fifth and Sixth
Amendment rights were violated when his previous attorney failed to attend the
proffer session in which he admitted to the discharge of a firearm without the
benefit of a Miranda warning. On appeal, Goltzer raised the same argument that
he advanced at sentencing, namely, that the discharge enhancement set forth in
section 924(c)(1)(A)(iii) did not apply to the facts of this case. This was a
substantial issue addressed in multiple submissions prior to sentencing and this
Court gave it serious consideration. Ultimately, this Court was persuaded that the
Supreme Court’s decision in Dean compelled application of the discharge
enhancement. Given the significance of the firearm discharge issue to Echeverry’s
sentence, appellate counsel’s decision to focus on this issue was a valid exercise of
counsel’s strategic discretion. Indeed, part of an appellate attorney’s duty is to
separate the stronger arguments from the weaker arguments and focus on the
stronger arguments. That is exactly what Goltzer did.
See Hill, 474 U.S. at 59.
Moreover, in his Declaration, Goltzer states that Echeverry never told
him about any issue concerning the absence of counsel from proffer sessions or
that he wanted an ineffective assistance claim to be raised on appeal.77 Goltzer
correctly points out that this particular ineffective assistance claim could not have
been raised on direct appeal because the facts in support of that claim were outside
the record.78 Accordingly, Echeverry cannot establish that “counsel omitted
significant and obvious issues while pursuing issues that were clearly and
significantly weaker.”79 Indeed, the opposite is true. Counsel correctly focused on
the more significant issue and omitted weaker issues. In any event, given that
Echeverry’s present arguments are devoid of merit, he cannot establish that there
was a reasonable probability that the omitted claim would have been successful.
Thus, Echeverry’s ineffective assistance of appellate counsel claim (Ground Three)
must be rejected.
See 5/12/13 Declaration of George R. Goltzer ¶ 3 (“During the course
of representation, I was never told of any potential issue concerning the absence of
counsel from meetings with the prosecution. I was not aware that Mr. Echeverry
wanted to raise such an issue on appeal.”).
Mayo, 13 F.3d at 533.
Leave to Amend
Echeverry seeks to amend his motion to vacate80 so that he can avail
himself of the Supreme Court’s decision in Alleyne v. United States.81 Because
Alleyne is not retroactively applicable for the reasons discussed below, Echeverry’s
proposed amendment would be futile. Leave to amend is therefore denied on the
ground of futility.
Alleyne in General
In Alleyne, the Supreme Court held that:
Any fact that, by law, increases the penalty for a crime is an
“element” that must be submitted to the jury and found
beyond a reasonable doubt. Mandatory minimum sentences
increase the penalty for a crime. It follows, then, that any
fact that increases the mandatory minimum is an “element”
that must be submitted to the jury.82
See Motion to Amend the Motion to Vacate.
133 S. Ct. 2151 (2013). In Alleyne, the district court found, by a
preponderance of the evidence, that the defendant “brandished” a firearm,
subjecting him to a seven-year mandatory sentence under 18 U.S.C. §
924(c)(1)(A)(ii), despite the jury’s finding that the defendant merely used or
carried a firearm, which would have subjected him to a five-year mandatory
sentence. The issue addressed in Alleyne was whether the finding of brandishing
was an element of the 924(c) count which had to be submitted to the jury and
found beyond a reasonable doubt. See id. at 2163-64. The Supreme Court
answered this question in the affirmative. See id.
Id. at 2155 (citation omitted).
In so holding, the Supreme Court overruled Harris v. United States, 536 U.S. 545
(2002), which held that “judicial factfinding that increases the mandatory
minimum sentence is permissible under the Sixth Amendment.”83 Harris limited
the holding of Apprendi v. New Jersey84 to instances where judicial factfinding
increases the statutory maximum sentence.85 In overruling Harris, the Supreme
Court found that “there is no basis in principle or logic to distinguish facts that
raise the maximum from those that increase the minimum.”86 The Supreme Court
explained its holding as follows:
The touchstone for determining whether a fact must be
found by a jury beyond a reasonable doubt is whether the
fact constitutes an “element” or “ingredient” of the charged
offense. In Apprendi, we held that a fact is by definition an
element of the offense and must be submitted to the jury if
it increases the punishment above what is otherwise legally
prescribed. While Harris declined to extend this principle
to facts increasing mandatory minimum sentences,
Apprendi’s definition of “elements” necessarily includes
not only facts that increase the ceiling, but also those that
increase the floor. Both kinds of facts alter the prescribed
range of sentences to which a defendant is exposed and do
530 U.S. 466 (2000).
See 133 S. Ct. at 2158.
Id. at 2163. See also id. at 2160 (“While Harris limited Apprendi to
facts increasing the statutory maximum, the principle applied in Apprendi applies
with equal force to facts increasing the mandatory minimum.”).
so in a manner that aggravates the punishment. Facts that
increase the mandatory minimum sentence are therefore
elements and must be submitted to the jury and found
beyond a reasonable doubt.87
Echeverry argues that Alleyne should apply retroactively to cases on
collateral review.88 In general, a new rule of law decided after a defendant’s
conviction becomes final may not be applied to the defendant’s case on collateral
review.89 In Teague v. Lane, the Supreme Court recognized the following two
exceptions to the general rule of non-retroactivity:
(1) new rules that “place an entire category of primary
conduct beyond the reach of the criminal law, or new rules
that prohibit imposition of a certain type of punishment for
a class of defendants because of their status or offense”; or
(2) “new watershed rules of criminal procedure that are
necessary to the fundamental fairness of the criminal
Id. at 2158 (citations omitted).
Motion to Amend the Motion to Vacate (“Motion to Amend”) ¶ 3.
See Teague v. Lane, 489 U.S. 288, 310 (1989) (“Unless they fall
within an exception to the general rule, new constitutional rules of criminal
procedure will not be applicable to those cases which have become final before the
new rules are announced.”).
United States v. Mandanici, 205 F.3d 519, 525 (2d Cir. 2000)
(quoting Sawyer v. Smith, 497 U.S. 227, 241-42 (1990)). Accord United States v.
Becker, 502 F.3d 122, 129 (2d Cir. 2007).
Alleyne does not fall within either exception. Alleyne did not place any individual
conduct beyond the Government’s power to punish, nor did it prohibit the
imposition of any type of punishment. Nor does the rule in Alleyne qualify as a
watershed rule of criminal procedure. Furthermore, as explained by the Seventh
Alleyne is an extension of Apprendi v. New Jersey, 530 U.S.
466 (2000). The Justices have decided that other rules
based on Apprendi do not apply retroactively on collateral
review. See Schriro v. Summerlin, 542 U.S. 348 (2004).
This implies that the Court will not declare Alleyne to be
retroactive. See also Curtis v. United States, 294 F.3d 841
(7th Cir. 2002) (Apprendi itself is not retroactive).91
Hence, the general rule against retroactivity applies to the Alleyne decision.
Echeverry is thus foreclosed from relying on Alleyne in support of the instant
motion. Accordingly, Echeverry’s motion for leave to amend his section 2255
motion is denied because the proposed amendment would be futile.
Echeverry moves for sanctions on the ground that the Government
allegedly failed to produce the handwritten notes of Detective Salvitti for all of the
Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013) (parallel
citations omitted). The Second Circuit has not yet addressed the retroactivity of
proffer sessions he attended.92 As detailed above, Warburgh was present at the
first two proffer sessions, on March 31, 2005 and April 25, 2005, both of which
have been substantiated with documentary evidence. Moreover, it was at the April
25th proffer session that Echeverry disclosed the discharge of the firearm. Thus, it
is irrelevant whether the third and fourth proffer sessions even took place, much
less the Government’s alleged failure to produce handwritten notes of those
sessions. Echeverry’s motion for sanctions is therefore denied.93
For the foregoing reasons, Echeverry’s section 2255 motion is denied
in its entirety as is his Motion to Amend. The remaining issue is whether to grant a
Certificate of Appealability (“COA”). For a COA to issue, a petitioner must make
See 7/14/13 Motion Asking for Sanctions ¶ 3 (“The notes are
incomplete since only two of the meetings notes were submitted.”).
The only reasonable sanction requested by Echeverry is to “not allow
U.S. government to rely on evidence and documents not submitted to defendant.”
Motion Asking for Sanctions at 2, ¶ (c). This sanction is unnecessary as the
Government did not rely on anything it did not submit to Echeverry in its
opposition papers. In one way or another, the remaining sanctions sought by
Echeverry involve a summary ruling of the habeas motion in his favor. See id. ¶
(a) (“Eliminate all the evidence submitted by the U.S. government with its answer
to defendant’s motion.”); ¶ (b) (“Admit the facts submitted by defendant in [his] §
2255 motion and brief.”); (d) (“Admit the fact that defendant’s attorney failed to
assist defendant on several proffer meetings specially the ones where defendant
talked about the firearm that lead [to] Count 2 of his sentence and superseding
information.”). Thus, even if the Government had engaged in misconduct, the
proposed sanctions would not be appropriate.
a "substantial showing of the denial of a constitutional right."94 A "substantial
showing" does not require a petitioner to demonstrate that he would prevail on the
merits, but merely that "reasonable jurists could debate whether ... the petition
should have been resolved in a different manner or that the issues presented were
'adequate to deserve encouragement to proceed further. ",95 Petitioner has made no
such showing. Accordingly, this Court declines to issue a Certificate of
Appealability. Furthermore, this Court finds that pursuant to 28 U.S.C. §
19l5(a)(3), any appeal taken from this Order would not be in good faith.96 The
Clerk of the Court is directed to close this case and the section 2255 motion
docketed in criminal case number 04 CR 1162.
New York, New York
28 U.S.C. § 2253(c)(2).
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 & n.4 (1983) (quotation marks and citations omitted)).
Accord Middleton v. Attorneys Gen. ofthe States ofNew York and Pennsylvania,
396 F .3d 207, 209 (2d Cir. 2005) (denying COA where reasonable jurists could not
debate whether the district court's dismissal of the petition was correct).
See Coppedge v. United States, 369 U.S. 438,445 (1962).
- Appearances Petitioner (Pro Se):
P.O. Box 1000
White Deer, PA 17887
John J. O’Donnell
Assistant United States Attorney
One St. Andrew’s Plaza
New York, NY 10007
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