Velez-Paulino v. United States of America

Filing 6

OPINION & ORDER. Paulino's petition for habeas corpus is denied. Since Paulino has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253. The Clerk of Court is directed to enter judgment and close this case. (Signed by Judge Paul A. Crotty on 7/6/2015) Copies Mailed By Chambers. (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------)(
BEETHOVEN VELEZ-PAULINO,

Petitioner,
-against-

15 Civ. 219/13 Cr. 382 (PAC)

UNITED STATES OF AMERICA,

OPINION & ORDER

Respondent.

------------------------------------------------------------)(
UNITED STATES OF AMERICA,

-againstBEETHOVEN VELEZ-PAULINO,

Defendant.

------------------------------------------------------------)(
HONORABLE PAUL A. CROTTY, United States District Judge:

Prose Petitioner Beethoven Velez-Paulino ("Paulino") moves, pursuant to 28 U.S.C. §
2255, to vacate his conviction under 21 U.S.C. § 841 for conspiracy to distribute and possess
with intent to distribute heroin and cocaine. Paulino argues that 21 U.S.C. § 841 is not a duly
enacted federal law, that defense counsel provided him with ineffective assistance, and that his
appeal waiver is invalid. Paulino's motion is denied.

BACKGROUND
On May 22,2013, Paulino was charged with violations of21 U.S.C. § 841(b)(1)(B) and§
841 (b )(1 )(C) for conspiracy to distribute 100 grams or more of heroin and less than 500 grams of
cocaine. Dkt. 6, 13 Cr. 382. On September 23, 2013, pursuant to a plea agreement, he pled
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guilty to a lesser included offense of conspiracy to distribute less than 100 grams of heroin and
less than 500 grams of cocaine, a violation of28 U.S.C. §§ 841(b)(l)(C) and 846. Plea Tr. The
plea agreement, dated August 26, 2013, calculated the Offense Level at 23, with a Criminal
History Category of2. Plea Agreement at 3. Accordingly, the Guidelines range was 51 to 63
months' imprisonment. Id. The plea agreement further stipulated that Paulino would "not file a
direct appeal; nor bring a collateral challenge, including but not limited to an application under
Title 28, United States Code, Section 2255 ... , of any sentence within or below the Stipulated
Guidelines Range." Id. at 4.
At his plea on September 23, 2013, Paulino was sworn in and acknowledged signing the
plea agreement voluntarily. Plea Tr. at 6:25-7:4. He also stated that he understood the rights he
was giving up by entering into the plea. Id. at 4:10-9:17. With regard to the waiver of appeal
and collateral attack, the following colloquy occurred:
THE COURT:

In addition, Mr. Velez-Paulino, to giving up your right to a
trial you're also agreeing not to file a direct appeal or
challenge in a collateral attack any sentence imposed upon
you which is at the guidelines range of 51 to 63 months or
below that range. Do you understand?

THE DEFENDANT: Yes.
Id. at 9:1-6. He also acknowledged that he understood the charges against him and that he was

satisfied with his attorney's representation. Id. at 4:10-16. He then admitted that he had "agreed
with others to possess and distribute substances that contain heroin and cocaine. I knew that by
doing this I was doing something illegal." Id. 11 :8-11.

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On March 5, 2014, the Court sentenced Paulino to 38 months' imprisonment. 1
Sentencing Tr. 13:10-14, 14:19-22. This sentence fell below the Stipulated Guidelines Range
set out in the plea agreement. !d. at 13 :10-11 ("Mr. Velez-Paulino is going to receive a belowthe-guidelines sentence, but it can't be time served."). Consistent with the plea agreement,
Paulino did not appeal the sentence.

DISCUSSION
A petitioner may collaterally attack a final judgment in a federal criminal case pursuant to
28 U .S.C. § 2255 where there has been "a constitutional error, a lack of jurisdiction in the
sentencing court, or an error oflaw or fact that constitutes a fundamental defect which inherently
results in a complete miscarriage of justice." Cuoco v. US., 208 F.3d 27, 30 (2d Cir. 2000)
(internal citations and quotation marks omitted). Paulino argues that his sentence must be
vacat ed because (1) 28 U.S.C. § 841 is not a duly enacted federal statute; (2) he received
ineffective assistance of counsel because his attorney failed to inform him of this fact; and (3) his
waiver of the right to appeal was not made knowingly and voluntarily because it was made
without the knowledge that section 841 was not valid. Pet. Mem.2 Because Paulino's argument
that section 841 was not duly enacted fails for the following reasons, his ineffective assistance
claim and his challenge to the waiver of appeal also fails.
Paulino asserts that 28 U.S.C. § 841 is invalid because "it has not been processed through
the proper congressional channels to become validated." Pet. Mot. at 10. He provides no
support for this assertion. Similar arguments regarding other statutes "ha[ve] evidently been

1 The

Government asserts that Paulino received a sentence of 36 months. Gov. Mem. at 4. This is incorrect. See
Sentencing Tr. 14:19; Dkt. 50, at 2.
2

The Court is interpreting Paulino's claims "so as to raise the strongest arguments that they suggest." Triestman v.
Fed. Bureau ofPrisons, 470 F.3d 471 ,471 (2d Cir. 2006) (internal citation and quotation marks omitted).

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circulating among inmates in federal correctional institutions, and ha[ve] been presented in other

prose briefs." US. v. Farmer, 583 F.3d 131, 151 (2d Cir. 2009). Due to the Second Circuit's
application of the enrolled bill doctrine to this argument, these similar claims have failed. See,

e.g., Paredes v. US., 2011 WL 837139, at *2 (E.D.N.Y. Mar. 2, 2011) (citing cases). This is
because "[a]n enrolled bill, 'thus attested,' ' is conclusive evidence that it was passed by
Congress,"' Pub. Citizen v. US. Dist. Ct.forDist. a/Columbia, 486 F.3d 1342, 1350 (D.C. Cir.
2007) (citing Marshall Field & Co. v. Clark, 143 U.S . 649,672-73 (1892)), and the '" enrolledbill rule' precludes a court from looking beyond the signatures of House and Senate leaders in
determining the validity of a statute," Farmer, 583 F.3d at 151.
Section 841 comprises part of Public Law 91-513, the Comprehensive Drug Abuse and
Prevention Control Act of 1970, which was signed by President Nixon on October 27, 1970.
Section 841 makes it illegal to knowingly or intentionally "manufacture, distribute, or dispense,
or possess with intent to manufacture, distribute, or dispense, a controlled substance." The
Government has provided a certified copy of the enrolled version of the Act from the National
Archive and Records Administration. See Gov. Mem., Ex. D. While Paulino asserts that this
copy "is a fabricated and falsified document" and that it "does not have a BILL which indicates
that it has gone through processes to become law," Reply at 2, there is no merit to these
arguments. See U.S. v. Rodriguez, 2003 WL 139252, at *I (S.D.N.Y. Jan. 16, 2003) (challenge
to the validity of section 846 rejected where Defendant "present[ed] no evidence to support his
contention that the President did not sign the Comprehensive Drug Abuse Prevention and
Control Act of 1970, and in light of the hundreds of thousands of examples of situations where §
846 has been applied and implicitly upheld"). The existence of the enrolled bill precludes the
Court from examining the validity of the statute.

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Because no challenge to the validity of section 841 can survive, Paulino' s argument that
defense counsel was ineffective because he failed to inform him that section 841 was not duly
enacted is rejected. Paulino' s argument that his waiver is invalid because it was not made with
the knowledge that section 841 was not duly enacted also fails . Accordingly, Paulino has failed
to make any showing that he is entitled to relief under 28 U.S.C. § 2255.
CONCLUSION
Paulino' s petition for habeas corpus is denied. Since Paulino has not made a substantial
showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28
U.S.C. § 2253. The Clerk of Court is directed to enter judgment and close this case.

Dated: New York, New York
July 6, 2015

SO ORDERED

;J
!

,
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pAUL A. CROTTY
United States District Judge

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Copy Mailed By Chambers To:
Beethoven Velez-Paulino
92035-054
Rivers Correctional Institution
P.O. Box 630
Winton, NC 27986

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