Gonzalez v. USA

Filing 2

OPINION & ORDER as to William Marcos Gonzalez...Gonzalez's October 22 petition for a writ of habeas corpus is denied to the extent that it is premised on the existence of a conflict of interest. Gonzalez's claim based on the amendments to the Guidelines is converted to a petition for a reduction of sentence. The remaining claim asserting ineffective assistance in connection with Gonzalez's uncounseled prior conviction is not subject to summary dismissal. An Order accompanies this Opinion directing the U.S. Attorney's Office to respond to the claim in Gonzalez's petition. (Signed by Judge Denise L. Cote on 5/12/2015) Copies Mailed By Chambers. (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
WILLIAM MARCOS GONZALEZ,
:
Movant,
:
:
-v:
:
:
UNITED STATES OF AMERICA,
Respondent.
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:
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14cv8760 (DLC)
13cr0007 (DLC)
OPINION & ORDER

DENISE COTE, District Judge:
William Marcos Gonzalez (“Gonzalez”) filed a petition,
received on October 24, 2014, for a writ of habeas corpus
pursuant to 28 U.S.C § 2255.

Gonzalez seeks to be resentenced.

Gonzalez primarily argues that he was denied effective
assistance of counsel.

For the following reasons, Gonzalez’s

petition is denied in part.

A separate scheduling order

accompanies this Opinion.
BACKGROUND
On June 28, 2013, pursuant to a plea agreement with the
Government, Gonzalez pleaded guilty to conspiring to distribute
a controlled substance involving five kilograms of cocaine in
violation of 21 U.S.C. § 841(b)(1)(A).

This charge carried a

mandatory minimum term of imprisonment of five years.

On

October 11, Gonzalez agreed to a new plea agreement with the
Government that would permit him to plead guilty to 21 U.S.C. §
841(b)(1)(C), a narcotics distribution charge that does not

carry a mandatory minimum term of imprisonment.

Gonzalez

pleaded guilty to that count, and was sentenced, that same day.
Gonzalez was sentenced principally to 108 months in prison.

His

Guidelines range was 108 to 135 months, and as part of the plea
agreement, Gonzalez agreed not to challenge his sentence so long
as it did not exceed 135 months’ imprisonment, either by filing
a direct appeal, bringing a collateral challenge pursuant to 28
U.S.C. § 2241 or § 2255, or seeking a sentence modification
pursuant to 18 U.S.C. § 3582(c).

Gonzalez did not appeal his

conviction.
DISCUSSION
In his petition, Gonzalez asserts first that his attorney
operated under a conflict of interest in negotiating the plea
agreement since the agreement waived Gonzalez’s right to bring a
habeas petition asserting that the attorney was ineffective.

In

connection with this claim, Gonzalez asserts that the Government
interfered with his right to counsel by offering a plea
agreement that required his counsel to behave unethically; his
counsel failed to move the Court to conduct a conflict inquiry
or seek revisions to the plea agreement; and his plea was
unknowing and involuntary as a result of the conflict.

Gonzalez

also brings two other ineffective assistance claims: his
attorney failed to advise him that he was waiving the right to

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be resentenced under recently amended Guidelines 1 and failed to
investigate, or otherwise discuss, the validity of two prior
state court convictions.
Petitioner’s first claim is based on the contention that he
is precluded under the terms of the plea agreement from bringing
an ineffective assistance of counsel claim.

This claim fails

because the petitioner’s plea agreement did not waive his right
to bring an ineffective assistance of counsel claim.

“A waiver

of appellate or collateral attack rights does not foreclose an
attack on the validity of the process by which the waiver has
been procured, here, the plea agreement.”

Frederick v. Warden,

Lewisburg Correctional Facility, 308 F.3d 192, 195-96 (2d Cir.
2002).

Accordingly, petitioner may bring a collateral challenge

to the extent it claims ineffectiveness of counsel in connection
with the negotiation of a plea agreement.

Id.; see also Parisi

v. United States, 529 F.3d 134, 138-39 (2d Cir. 2008).
Gonzalez’s claim that his counsel was ineffective because
he failed to explain that the plea agreement waived defendant’s
right to seek a modification of his sentence under the new
Guidelines is denied as the petitioner’s plea agreement does not
Effective November 1, 2014, the United States Sentencing
Commission amended the United States Sentencing Guidelines
Manual to lower the guideline sentencing range for certain
categories of offenses involving drugs. The Sentencing
Commission also adopted an amendment to § 1B1.10 of the
Guidelines, effective November 1, 2014, which authorized
retroactive application of the amendment to the drug guidelines.
1

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preclude him from bringing such a motion.

This portion of the

Gonzalez’s habeas petition will be converted into a petition to
modify Gonzalez’s sentence.

A separate scheduling order

regarding the converted petition accompanies this Opinion.
The petition is also construed as asserting that defense
counsel was ineffective for failing to seek revisions to the
plea agreement that would preserve his right to reduce his
sentence by challenging prior state court convictions obtained
without counsel.

A successful challenge to any of his prior

convictions would lower his criminal history category from III
to II.

“A defendant who pleads guilty unconditionally while

represented by counsel may not assert independent claims
relating to events occurring prior to the entry of the guilty
plea.”

Parisi, 529 F.3d at 138 (citation omitted).

Because

Gonzalez pleaded guilty, he may not raise an ineffective
assistance of counsel claim to the extent that it relates to
actions his attorney should have taken prior to Gonzalez’s plea
that are independent of the plea negotiation process.
Construing the petition liberally, however, petitioner has also
raised the claim that his attorney was ineffective for failing
to advise him that he could reduce his Guidelines range by
challenging prior convictions.

This claim may not be precluded

by Gonzalez’s guilty plea.

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A defendant may collaterally attack a prior conviction as
part of the sentencing proceedings only if the prior conviction
is constitutionally infirm because it violated the defendant’s
right to counsel under Gideon v. Wainwright.
Sharpley, 399 F.3d 123, 126 (2d Cir. 2005).

United States v.
The petitioner’s

ability to succeed with this claim depends on the nature of his
uncounseled convictions.

“Where . . . a defendant is convicted

of a misdemeanor and no jail term is imposed, no sixth amendment
right to counsel attaches.”

United States v. Castro-Vega, 945

F.2d 496, 499 (2d Cir. 1991).

An uncounseled misdemeanor

conviction that resulted in no term of incarceration may also be
used to calculate the defendant’s criminal history category.
Id. at 499-500.

Accordingly, the petitioner will be unable to

show prejudice if the convictions petitioner claims were
obtained without counsel are misdemeanors where no jail term was
imposed.
CONCLUSION
Gonzalez’s October 22 petition for a writ of habeas corpus
is denied to the extent that it is premised on the existence of
a conflict of interest.

Gonzalez’s claim based on the

amendments to the Guidelines is converted to a petition for a
reduction of sentence.

The remaining claim asserting

ineffective assistance in connection with Gonzalez’s uncounseled
prior convictions is not subject to summary dismissal.
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An Order

accompanies this Opinion directing the U.S. Attorney’s Office to
respond to that claim in Gonzalez’s petition.
Dated:

New York, New York
May 12, 2015
__________________________________
DENISE COTE
United States District Judge

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