Jose Ramon Gonzalez v. United States of America

Filing 12

OPINION AND ORDER...Gonzalezs January 23 petition for a writ of habeas corpus is denied. In addition, a certificate of appealability shall be not granted. The petitioner has not made a substantial showing of a denial of a federal right and appellat e review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990). Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Opinion and Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall close the case. (Signed by Judge Denise L. Cote on 7/31/2015) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
JOSE RAMON GONZALEZ,
:
:
Petitioner,
:
:
-v:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
:
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14cv1973 (DLC)
11cr1072-24(DLC)
OPINION
AND ORDER

DENISE COTE, District Judge:
On January 23, 2015, Jose Ramon Gonzalez (“Gonzalez”) filed
this petition for a writ of habeas corpus pursuant to 28 U.S.C.
2255.

For the following reasons, the petition is denied.
BACKGROUND

Indictment 11cr1072 charged scores of defendants with
illegal activity in connection with a multistate scheme to
divert prescription drugs and resell them.

The diverted drugs

included drugs used to treat HIV/AIDS, and resulted in millions
of dollars of loss to federal health care benefit programs.
Gonzalez was in the Dominican Republic at the time the
charges were first made public.

He surrendered on September 17,

2012, and entered a plea of guilty before Magistrate Judge Frank
Maas on July 29, 2013.

As of that date, trial was scheduled to

begin on September 16, 2013.
August 13, 2013.

This Court accepted the plea on

The plea was entered pursuant to a plea agreement with the
Government (“Agreement”), in which the parties stipulated to a
sentencing guidelines range of 46 to 57 months’ imprisonment.
Pursuant to the Agreement, Gonzalez waived the right to
challenge a sentence at or below 57 months’ imprisonment by
appeal or through a collateral attack.

At the plea allocution,

Gonzalez acknowledged the waiver.
On January 17, 2014, this Court imposed sentence on
Gonzalez.

He was sentenced principally to a term of

imprisonment of 46 months.
In advance of the sentence, defense counsel submitted a
five page letter requesting a sentence of six months home
confinement.

The letter stressed the defendant’s work history,

his large family, his self-surrender, and his effort to assist
the Government in connection with the arrest of co-defendants.
The submission included more than fifteen letters of support for
the defendant, including from the defendant’s employer and a
member of the New York City Council.
The Presentence Report (“PSR”) had recommended a sentence
of 46 months’ imprisonment.

The Report had been translated to

the defendant and defense counsel discussed each page with
Gonzalez.

The PSR recited the defendant’s self-surrender,

family circumstances and efforts to assist the Government, among
many other things.
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During the proceedings in the district court, including at
the entry of the plea and at sentence, Gonzalez was represented
by retained counsel Conway Martindale II.

Gonzalez indicated

during his plea allocution that he was satisfied with his
counsel and the advice his counsel had given him.

Gonzalez made

no complaint to the Court about counsel during the sentencing
proceeding or at any time prior to sentence.
Attorney Carlos Gonzalez requested on February 12, 2014,
that this Court extend the time for Gonzalez to file an appeal.
His letter explained that Martindale had sought assistance from
attorney Gonzalez in contacting defendant Gonzalez regarding the
This Court granted the request on February

filing of an appeal. 1
14.

On February 24, 2014, attorney Gonzalez filed a notice of
appeal for Gonzalez.

On April 4, while that appeal was pending,

attorney Gonzalez filed a habeas petition on behalf of Gonzalez
that is virtually identical to the one at issue here.

On April

9, this Court dismissed the petition without prejudice in light
of the pending appeal.

Gonzalez filed a motion with the Court

of Appeals on June 18, 2014, to withdraw his notice of appeal.
That motion was granted on January 12, 2015.

Attorney Gonzalez represented co-defendant Jessica Jimenez.
Jimenez was sentenced on October 11, 2013, principally to five
years’ probation.
1

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On January 23, 2015, Gonzalez filed the instant petition.
It is also signed by attorney Carlos Gonzalez of Gonzalez Law
Associates.
The petition seeks to have Gonzalez resentenced due to
ineffective assistance of counsel in connection with the
sentence.

It does not seek to vacate the plea or conviction.
DISCUSSION

“[I]t is well-settled that a defendant’s knowing and
voluntary waiver of his right to appeal a sentence within an
agreed upon guideline range is enforceable.”

United States v.

Lee, 523 F.3d 104, 106 (2d Cir. 2008) (citation omitted).

“An

ineffective assistance of counsel claim survives the guilty plea
or the appeal waiver only where the claim concerns the advice
the defendant received from counsel” regarding a waiver of
appeal rights.

Parisi v. United States, 529 F.3d 134, 138 (2d

Cir. 2008) (citation omitted).

“Thus, although challenging the

attorney’s role in shaping the defendant’s bargaining position
cannot avoid the waiver, challenging the attorney’s advice about
that bargaining position, by connecting the knowing and
voluntary nature of the defendant’s plea decision with the
attorney’s conduct, does.”

Id. at 138-39.

Accordingly, where

there is a knowing and voluntary waiver of the right to appeal
at the time a defendant enters a plea of guilty, that waiver
precludes a habeas challenge to the sentence even where that
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challenge concerns the quality of an attorney’s representation
of the defendant at sentencing.

See United States v. Monzon,

359 F.3d 110, 118 (2d Cir. 2004).
All of the claims in Gonzalez’s habeas petition relate to
acts of alleged ineffective assistance of counsel.

In order to

succeed on a claim of ineffective assistance of counsel, a
claimant must meet the two-pronged test established by
Strickland v. Washington, 466 U.S. 668 (1984): “(1) he must show
that counsel’s performance was deficient, so deficient that, in
light of all the circumstances, the identified acts or omissions
were outside the wide range of professionally competent
assistance; and (2) he must show that the deficient performance
prejudiced the defense, in the sense that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”

Gonzalez

v. United States, 722 F.3d 118, 130 (2d Cir. 2013) (citation
omitted).
The petition is a ten page document.

After its opening

paragraphs, it is largely structured as a form questionnaire.
It contains a list of bullet points that capture various ways in
which any trial counsel might provide ineffective assistance to
a defendant.

Several bullet points have no relevance to

Gonzalez or his complaints about Martindale.
are followed by explanatory material.
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The bullet points

As described below,

several passages relate to the petition’s request for
resentencing.
The petition essentially identifies four ways in which
Martindale’s assistance to Gonzalez was deficient in connection
with the representation provided for sentencing.

In his plea

agreement with the Government, Gonzalez waived his right to
challenge his sentence so long as it did not exceed 57 months’
imprisonment.

Since Gonzalez received a sentence below 57

months, and does not seek to set aside his plea, his waiver of
his right to collaterally attack his sentence bars these
complaints about his defense attorney’s alleged failings in
connection with the sentence.
In any event, Gonzalez fails to show that the complaints
are valid or that he was prejudiced by the alleged failures.
The petition asserts most prominently that trial counsel failed
to investigate mitigating factors that could have affected the
sentence, but does not identify any argument in mitigation of
sentence that was not identified by Martindale in his presentence submission and discussed explicitly during the
sentencing proceeding.

The only mitigating factors mentioned in

the petition are the defendant’s self-surrender and his futile
efforts to arrange the surrender of co-defendants.

Besides

being discussed in defense counsel’s written submission, these
two factors were also discussed in the PSR.
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Gonzalez himself

described his self-surrender when he addressed the Court during
the sentencing proceeding.

During the sentencing proceeding the

Court noted as well that Gonzalez had self-surrendered and
attempted to get codefendants to surrender as well.
Gonzalez next asserts that his counsel did not request any
letters in support of Gonzalez for the sentence, and that it was
Gonzalez who submitted the letters to his attorney for
submission to the Court.

There were over fifteen letters

submitted by defense counsel to the Court in advance of the
sentencing proceeding.

Gonzalez does not identify any

additional letter that he wished had been included in the
submission.
Gonzalez also asserts that his attorney did not adequately
prepare him for the interview by the Probation Department or for
the sentence and that they had limited communication before the
sentence.

He complains in particular that defense counsel did

not advise Gonzalez of the sentencing date.

For this reason,

Gonzalez appeared late and came to Court from work “in a
disheveled” manner.

Gonzalez has not shown any prejudice for

any of these alleged lapses.
Gonzalez does not identify any additional information that
he believes should have been included in the PSR.

As is

typical, on the advice of counsel Gonzalez did not discuss his
involvement in the conspiracy with the Probation Department, but
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restricted the interview to more personal matters.

The PSR was

detailed and presented every factor on which Gonzalez now relies
in arguing that a shorter sentence was warranted.
Similarly, Gonzalez has not identified any argument in
mitigation of sentence that his attorney failed to present to
the Court.

His attorney presented those arguments in his

written submission and orally at the time of sentence.

In

addition, at the sentencing proceeding the attorney listed
several corrections to be made to the PSR, and Gonzalez has not
suggested that the attorney overlooked any errors that should
also have been mentioned at that time.
The transcript from the sentencing proceeding does reveal
that some scheduling “mix-up” occurred and that the sentencing
proceeding began at 12:35 p.m., instead of 11:30 a.m. as
originally scheduled.

But, there is no basis to conclude that

that mix-up resulted in the imposition of a longer sentence than
Gonzalez would have otherwise received.

Indeed, it did not have

any impact on the length of the sentence imposed on the
defendant.
Finally, Gonzalez argues that counsel should have made a
motion to challenge the calculation of the loss amount.

The

Agreement and the PSR reflected a loss amount of more than $2.5
million, but not more than $7 million, which resulted in an
increase of 18 levels to the calculation of the offense level
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under the Guidelines.

Gonzalez has not shown that any challenge

to the calculation would have been successful.
As the Government’s sentencing submission reflected, it had
evidence that, although a low-level aggregator of prescription
drugs who obtained the medication illegally on the street,
Gonzalez engaged in massive repeated sales of those drugs to
higher level aggregators from at least April 2011 to January
2012.

Its evidence included receipts for 17 transactions

involving hundreds of bottles each largely of expensive AIDs
medication.

Gonzalez was paid tens of thousands of dollars for

each transaction.

The Medicaid value of the bottles was over

$2.5 million.
CONCLUSION
Gonzalez’s January 23 petition for a writ of habeas corpus
is denied.
not granted.

In addition, a certificate of appealability shall be
The petitioner has not made a substantial showing

of a denial of a federal right and appellate review is,
therefore, not warranted.

Tankleff v. Senkowski, 135 F.3d 235,

241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d 24, 24 (2d
Cir. 1990).

Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from

this Opinion and Order would not be taken in good faith.
Coppedge v. United States, 369 U.S. 438, 445 (1962).

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The Clerk

of Court shall close the case.
Dated:

New York, New York
July 31, 2015
__________________________________
DENISE COTE
United States District Judge

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