Morales Perez v. USA
Filing
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MEMORANDUM OPINION & ORDER as to Marleny Morales-Perez... Morales July 7 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 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). The Clerk of Court shall close the case. (Signed by Judge Denise L. Cote on 10/30/2014) Copies Mailed By Chambers To Manleny Morales Perez. (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
MANLENY MORALES PEREZ,
:
Movant,
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-v:
:
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UNITED STATES OF AMERICA,
Respondent.
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14cv6133(DLC)
11cr881 (DLC)
MEMORANDUM
OPINION & ORDER
DENISE COTE, District Judge:
Manleny Morales Perez (“Morales”) has filed a timely
petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2255.
Morales contends that her sentencing guidelines range
should be recalculated to include a minor role adjustment and
that she should be resentenced.
For the following reasons, the
petition is denied.
BACKGROUND
Morales was indicted on narcotics charges and extradited
from Colombia.
She first appeared in the Southern District of
New York on November 19, 2012.
At a conference on November 26,
a trial date of April 22, 2013 was set.
A superseding
indictment was filed against Morales on December 3, 2012.
It
charged her with participating in a conspiracy to distribute
heroin and cocaine, and in a conspiracy to launder drug money.
On March 26, 2013, Morales entered a plea of guilty to the
drug conspiracy charge in the superseding indictment pursuant to
a written plea agreement with the Government.
In that
agreement, Morales waived her right to appeal or collaterally
challenge any sentence at or below 135 months’ imprisonment.
Morales served as the Colombia-based broker of three multikilogram drug sales in New York.
The Presentence Report calculated Morales’ sentencing
guidelines range as 108 to 135 months’ imprisonment.
The base
offense level was determined to be 36 based on criminal activity
involving over 10 kilograms of heroin and over 6 kilograms of
cocaine.
She was given a two level adjustment pursuant to the
safety valve provision of the law and a three level adjustment
for acceptance of responsibility.
On June 28, Morales was sentenced principally to 84 months’
imprisonment.
2013.
The judgment of conviction was filed on July 2,
The defendant did not appeal her conviction.
On July 7, 2014, Morales filed this petition.
The petition
is dated June 27 and argues that Morales is entitled to a minor
role adjustment.
It seeks to collaterally attack and vacate the
sentence.
DISCUSSION
There are several reasons why this petition must be denied.
First, any challenge to the procedural or substantive
reasonableness of the sentence had to made through a direct
appeal.
See Graziano v. United States, 83 F.3d 587, 590 (2d
2
Cir. 1996).
Morales did not appeal her sentence, despite being
advised of her right to file an appeal.
Second, through her plea agreement, Morales waived her
right to appeal a sentence of imprisonment at or below 135
months’ imprisonment.
Morales has identified no reason to find
that that waiver is not effective.
Since her sentence was 84
months’ imprisonment, Morales may not challenge her term of
imprisonment for this additional reason.
Third, even if it were appropriate to reach the merits of
the issue raised by Morales, her petition would be denied.
Morales served as a broker for multi-kilogram sales of
narcotics.
Her role in the offense of conviction does not
warrant a minor role adjustment.
CONCLUSION
Morales’ July 7 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 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
October 30, 2014
__________________________________
DENISE COTE
United States District Judge
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