Jimenez v. United States of America

Filing 6

OPINION & ORDER: For the reasons set forth above, Jimenez's petition to vacate, set aside, or correct his sentence under 28 U.S.C. 2255 is DENIED. The Court declines to issue a certificate of appealability because there has been no "substa ntial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012). The Court also finds, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from the de nial of this motion would not be taken in good faith. See Feliz v. United States, Nos. 01 Civ. 5544(JFK), 00 CR. 53(JFK), 2002 WL 1964347, at *7 (S.D.N.Y. 2002). The Clerk of the Court is directed to terminate this action. (Signed by Judge Katherine B. Forrest on 8/31/2015) Copies Sent By Chambers. (tro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
RAFAEL JIMENEZ,
:
:
Petitioner,
:
:
-v:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
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KATHERINE B. FORREST, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: August 31, 2015

10-cr-316 (KBF)
15-cv-1974 (KBF)
OPINION & ORDER

The Court has reviewed petitioner Rafael Jimenez’s pro se motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the grounds of
ineffective assistance of counsel. (ECF No. 110 (“Pet.”); ECF No. 116 (“Pet’r’s
Br.”).1) Jimenez pled guilty on November 2, 2011 to conspiracy to distribute and
possess with intent to distribute five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 841(b)(1)(A)(ii), 846. Jimenez was sentenced on April 3, 2012 by this
Court to 127 months’ imprisonment, plus five years of supervised release. (ECF No.
92.) Jimenez appealed his sentence, arguing that the Second Circuit should
disregard the appellate waiver in his plea agreement because he did not agree to it
knowingly and voluntarily; the Second Circuit dismissed the appeal. United States
v. Jimenez, 552 F. App’x 51 (2d Cir. 2014) (summary order).
Jimenez now argues that he received ineffective assistance of counsel because
his lawyer failed to discover and assert an entrapment defense, or to inform him of
1 Unless otherwise noted, all citations to ECF in this Opinion & Order refer to the docket in case no.
10-cr-316.

the same. He also argues that he did not plead guilty knowingly and voluntarily
because his lawyer forced him to do so and because he was expecting a more lenient
sentence than he received. These arguments are wholly without merit, and for the
reasons set forth below, Jimenez’s motion is DENIED.
No evidentiary hearing is necessary in this action. The combined submissions
of the parties provide a sufficient basis upon which to deny the petition, and the
Court concludes that a full testimonial evidentiary hearing would not offer any
reasonable chance of altering its view on the facts as alleged by Jimenez, including
the details added in his petition. See Chang v. United States, 250 F.3d 79, 86 (2d
Cir. 2001) (court need not hold an evidentiary hearing where the combined
submissions of the parties provide a sufficient basis to deny the petition).
I.

BACKGROUND
On April 12, 2010, Jimenez, a former New York City auxiliary police officer,

and his co-defendant, Alfredo Rivera, were charged with one count of conspiracy to
distribute narcotics, in violation of 21 U.S.C. § 846 (Count One); one count of
extortion under color of official right, in violation of 18 U.S.C. § 1951(a) (Count
Two); and one count each of using a firearm in connection with crimes of violence
and drug trafficking, in violation of 18 U.S.C. § 924(c) (Counts Three and Four).
(ECF No. 1.) These charges stemmed from their agreement to provide armed
protection for a large shipment of cocaine from Long Island to the Bronx, which was
in fact a sting operation. The Government filed a superseding indictment on
September 26, 2011, in which Count Two charged Jimenez with attempt to
distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846, instead of
2

extortion under color of official right. (ECF No. 56.) This charge stemmed from
Jimenez’s introduction of confidential information to another individual Jimenez
believed to be a supplier of heroin, and his assistance in receiving a package that
appeared to be heroin.
On November 2, 2011, Jimenez pled guilty to Count One pursuant to a plea
agreement with the Government (the “Plea Agreement”). At his plea hearing before
Magistrate Judge Peck on November 2, 2011, and at his sentencing before this
Court2 on April 3, 2012, and at all hearings between those dates, Jimenez was
represented by Martin Geduldig. At his plea hearing, Jimenez stated—among other
things—the following while under oath:


That he had discussed with Geduldig the charges he was facing and how
he wished to plead. (ECF No. 73 (“Plea Tr.”) 8:9-11.)



That he was satisfied with Geduldig’s representation of him. (Plea Tr.
8:12-14.)



That he understood that Count One carried a maximum sentence of life
imprisonment and a mandatory minimum term of ten years’
imprisonment, and that he had discussed the U.S. Sentencing Guidelines
and other sentencing factors applicable to his case with Geduldig. (Plea
Tr. 7:23-8:8, 10:19-11:4.)

2 This matter was initially assigned to the Honorable Victor Marrero. It was reassigned to the
undersigned on or about November 18, 2011. (See ECF No. 72.) The entry on the docket reflecting a
reassignment date of May 11, 2015 is inaccurate.

3



That he and the Government had stipulated to a Guidelines range of 120
to 135 months’ imprisonment as a reasonable sentence, and that this
stipulation was not binding on the Court.3 (Plea Tr. 16:2-9, 16:24-17:3.)



That he understood that the Court could give him “a sentence within the
guideline range, less than the guideline range, or greater than the
guidelines, but of course no greater than the statutory maximum.” (Plea
Tr. 12:15-19.)



That nobody had made any promises to him about what his sentence
would be. (Plea Tr. 15:3-15:6.)



That the Plea Agreement was translated into Spanish, and that he had
discussed it and any questions he had about it with Geduldig. (See Plea
Tr. 15:10-12, 15:19:-22.)



That he understood under the Plea Agreement he waived his right to
appeal or collaterally attack a sentence of 135 months or less. (Plea Tr.
17:4-10.)



That he was pleading guilty freely and voluntarily because in fact he was
guilty. (Plea Tr. 18:16-18.)

Additionally, after questioning Jimenez about his medical and mental health
background (see Plea Tr. 3:18-5:22), Magistrate Judge Peck confirmed that Jimenez
3 When the Court first inquired whether Jimenez understood that he and the Government had
stipulated to this Guidelines range, Jimenez responded that it was “not really very acceptable”
because “[i]t [wa]s too much time.” (Plea Tr. 16:6-7.) Jimenez then stated that he “wasn't very much
in agreement, because at the beginning [he] was told lies,” specifically that he was “told that [he]
would be getting five years and then ten years.” (Plea Tr. 16:21-23.) Nevertheless, he repeatedly
affirmed that he understood his agreement with the Government as to the reasonableness of the
Guidelines range. (See Plea Tr. 16:2-17:3.)

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felt able to proceed in Court (Plea Tr. 5:23-6:1), and then stated, “I just want to be
clear, because if you tell me now you're OK, and sometime later you don’t like the
sentence you get and you try to tell Judge Marrero or some other court that you
weren’t feeling well and you weren’t right in the head today, you are not going to be
able to. So if you don’t feel well, we can do this next week or whenever. Are you
sure you’re able to go forward today?” to which Jimenez responded “Yes. Today,
your Honor” (Plea Tr. 6:2-9). Magistrate Judge Peck also asked Jimenez, “Now, I
don’t know what sentence you may be hoping for as you stand here today, but do
you understand that even if the sentence you get is more severe than that, you will
still be bound by your guilty plea and not allowed to withdraw it?” to which Jimenez
responded “Yes, sir.” (Plea Tr. 13:1-6.)
After making these statements, and after the Court advised him of the
consequences of pleading guilty, Jimenez reaffirmed that he wished to plead guilty
and that he was doing so freely and voluntarily. (Plea Tr. 18:11-18.) He then
testified that he and another person agreed to give protection for an illegal drug
transaction involving more than five kilograms of cocaine; that they met several
times in January and February 2010 to talk about arrangements for this
transaction; and that he knew what he was doing was wrong. (Plea Tr. 19:5-16.)
Magistrate Judge Peck determined that Jimenez was mentally competent to enter
his plea, and recommended that the Court accept Jimenez’s plea of guilty to Count
One of the superseding indictment as factually based and made freely, voluntarily,
and knowingly. (Plea Tr. 20:7-15.)

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Two days later, on November 4, 2011, Jimenez sent a letter to the Court
asking to withdraw his guilty plea, on the grounds that he was taking strong
medications at the time he entered his plea, and had not really known what he was
doing. (ECF No. 71.) This Court held a conference on November 21, 2011 to discuss
this issue and to discuss Jimenez’s satisfaction with counsel, at which Jimenez
confirmed his satisfaction with his representation, reaffirmed that he was guilty,
and stated a desire to maintain his guilty plea. (ECF No. 77 (“Nov. 21, 2011 Tr.”)
4:8-10, 5:2-4, 6:9-10, 8:17-9:12.) During the conference, the Court took a 15-minute
recess to allow Geduldig to speak with Jimenez regarding the consequences of not
making a motion to withdraw his guilty plea, and to enable Jimenez to speak with
Peter Brill, another criminal defense attorney present in the courtroom, to
determine that Jimenez’s desire for continued representation by Geduldig was
knowing and voluntary. (Nov. 21, 2011 Tr. 9:13-10:2, 10:17-22.) After this recess,
Jimenez again stated that he would not withdraw his guilty plea, and that he was
satisfied with his representation by Geduldig. (Nov. 21, 2011 Tr. 11:6-12:2.) Brill
stated that he did not have any reason to believe that Jimenez should not be
represented by Geduldig at that time. (Nov. 21, 2011 Tr. 12:3-6.) The Court then
confirmed Jimenez’s competency to make these decisions by a asking a series of
question to him, Geduldig, and the Government. (Nov. 21, 2011 Tr. 12:8-13:15.)
Jimenez again entered a plea of guilty (Nov. 21, 2011 Tr. 13:16-18), and stated,
among other things, the following:

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

That he had a sufficient opportunity to discuss his case with Geduldig.
(Nov. 21, 2011 Tr. 13:24-14:2.)



That nobody—including the Government—could make any promises to
him about what the length of his sentence would be. (Nov. 21, 2011 Tr.
15:11-15, 16:25-17:3.)



That he was facing a maximum sentence of life imprisonment. (Nov.
21, 2011 Tr. 17:4-15.)



That he was in fact guilty of the crime with which he was charged.
(Nov. 21, 2011 Tr. 18:9-11.)

The Court then determined that Jimenez was continuing to plead guilty voluntarily,
accepted his guilty plea, and affirmed the guilty plea he submitted on November 2,
2011. (Nov. 21, 2011 Tr. 18:12-21.)
On January 31, 2012, Jimenez again wrote to the Court asking to withdraw
his guilty plea, this time on the basis that his counsel “force[d]” him to plead guilty,
and requesting that the Court mandate psychological testing. (ECF No. 82.) This
Court held a conference to discuss these issues on February 10, 2012, during which
Geduldig stated that he had spoken with Jimenez on two occasions the day prior
and that Jimenez had told him that he did not wish to withdraw his guilty plea.
(ECF Nos. 84, 88 (“Feb. 10, 2012 Tr.”) 3:16-4:5.) Because Jimenez was visibly upset
at the hearing due to the recent passing away of his mother (see Feb. 10, 2012 Tr.
2:22-3:11; Pet’r’s Br. at 7), the Court adjourned the hearing before ruling on
Jimenez’s request to withdraw his plea (ECF No. 84; Feb. 10, 2012 Tr. 3:6-11, 4:13-

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17, 5:4-6). Before adjourning the hearing, the Court stated, “And it is, Mr. Jimenez,
not your emotional state today which governs whether or not your guilty plea in the
past is effective or not; it was your emotional state and your competency as of the
date and dates upon which you entered your pleas. And I would just note for the
record that the pleas that Mr. Jimenez previously entered were done after a finding
of competency at the time that the pleas were entered.” (Feb. 10, 2012 Tr. 4:21-5:3.)
The Court then issued a written order denying Jimenez’s request, explaining that
the Government had showed that permitting Jimenez to withdraw his plea at that
time would be prejudicial, and that Jimenez had failed to raise a significant
question as to the voluntariness of his pleas. (ECF No. 84.)
On April 3, 2012, the Court sentenced Jimenez to 127 months’ imprisonment,
plus five years of supervised release; the Court imposed seven months above the
minimum of the applicable Sentencing Guidelines range due to Jimenez’s breach of
the public trust through his use of his position as a New York City auxiliary police
officer in connection with the commission of the drug trafficking crime for which he
was charged. (ECF No. 117 (“Sentencing Tr.”) 15:17-16:1).
II.

LEGAL STANDARDS
A.

Bar on Raising Issues That Were Raised or Could Have Been Raised
on Direct Appeal

“In general, a defendant is barred from collaterally challenging a conviction
under § 2255 on a ground that he failed to raise on direct appeal.” United States v.
Thorn, 659 F.3d 227, 231 (2d Cir. 2011). “An exception applies, however, if the
defendant establishes (1) cause for the procedural default and ensuing prejudice or
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(2) actual innocence.” Id. This procedural bar “does not generally apply to claims of
ineffective assistance of counsel.” Zhang v. United States, 506 F.3d 162, 166 (2d
Cir. 2007).
B.

Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, a petitioner must
show that (1) his or her counsel’s performance “fell below an objective standard of
reasonableness” measured under “prevailing professional norms,” and (2) he or she
was prejudiced by counsel’s deficient performance such that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”4 Strickland v. Washington. 466 U.S. 668, 687-88, 694
(1984).
As to the first prong of Strickland, attorney conduct is subject to an objective
standard of reasonableness, and is accorded deference in light of the “range of
legitimate decisions” that accompanies the various circumstances encountered by
counsel. Id. at 688-89. As a result, reviewing courts “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance, bearing in mind that there are countless ways to provide
effective assistance in any given case and that even the best criminal defense
attorneys would not defend a particular client in the same way.” United States v.
Jimenez’s argument that he need not demonstrate prejudice under United States v. Cronic, 466
U.S. 648 (1984), is misplaced. In Cronic, the Supreme Court held that prejudice is presumed where
“counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.” Id. at 659
(emphasis added). Jimenez does not contend that defense counsel’s failure was total and complete—
rather, he asserts merely that his counsel’s investigation was not thorough enough, and he contests
only his counsel’s alleged failure to assert one particular affirmative defense. Strickland thus
provides the appropriate standard.
4

9

Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (alterations and internal quotation marks
omitted) (quoting Strickland, 466 U.S. at 689).
As to the second prong of Strickland, a petitioner must show that, but for his
or her attorney’s deficient performance, there is a reasonable probability that the
result would have been different. Strickland, 466 U.S. at 694. More is required
than a mere showing “that the errors had some conceivable effect on the outcome of
the proceeding,” as “not every error that conceivably could have influenced the
outcome undermines the reliability of the result of the proceeding.” Id. at 693.
III.

DISCUSSION
In sum and substance, Jimenez argues that he received ineffective assistance

of counsel because his lawyer failed to discover and assert an entrapment defense,
or to inform him of the same. He also argues that he did not plead guilty knowingly
and voluntarily, allegedly because his lawyer forced him to plead guilty and he did
not understand the consequences of his plea. Both arguments lack merit, and
Jimenez’s petition is accordingly denied.
A.

Entrapment

Jimenez’s attorney did not provide ineffective assistance of counsel if he
failed to assert or inform Jimenez of an entrapment defense. Whether he informed
Jimenez of such defense or not is ultimately irrelevant. An entrapment defense was
not supported by the evidence.

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1.

Legal standards.
a)

Reasonable investigation.

Defense counsel has a “duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Rosario v.
Ercole, 601 F.3d 118, 130 (2d Cir. 2010) (quoting Wiggins v. Smith, 539 U.S. 510,
521 (2003)). “[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic choices
made after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on investigation.”
Strickland, 466 U.S. at 690-91. “Actions or omissions by counsel that ‘might be
considered sound trial strategy’ do not constitute ineffective assistance.” Henry v.
Poole, 409 F.3d 48, 63 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 689).
“[A] lawyer’s decision not to pursue a defense does not constitute deficient
performance if, as is typically the case, the lawyer has a reasonable justification for
the decision.” Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (quoting DeLuca v.
Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996)). “The likelihood that an affirmative
defense will be successful at trial and an assessment of the probable increase or
reduction in sentence relative to the plea if the defendant proceeds to trial are
clearly relevant to the determination of whether an attorney acted competently in
recommending a plea.” Panuccio v. Kelly, 927 F.2d 106, 109 (2d Cir. 1991).
b)

Entrapment.

To successfully assert the defense of entrapment, a defendant must
demonstrate, by a preponderance of the evidence, “(1) government inducement of
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the crime, and (2) lack of predisposition on the defendant's part.” United States v.
Bala, 236 F.3d 87, 94 (2d Cir. 2000) (quoting United States v. Salerno, 66 F.3d 544,
547 (2d Cir. 1995)). “A defendant is predisposed to commit a crime if he is ‘ready
and willing without persuasion’ to commit the crime charged and ‘awaiting any
propitious opportunity’ to do so.” Salerno, 66 F.3d at 547 (quoting United States v.
Harvey, 991 F.2d 981, 992 (2d Cir. 1993)). Predisposition may be shown by
evidence of “(1) an existing course of criminal conduct similar to the crime for which
[the defendant] is charged, (2) an already formed design on the part of the accused
to commit the crime for which he is charged, or (3) a willingness to commit the
crime for which he is charged as evidenced by the accused's ready response to the
inducement.” Salerno, 66 F.3d at 548 (quoting United States v. Valencia, 645 F.2d
1158, 1167 (2d Cir. 1980)).
2.

Analysis.

Jimenez argues that his attorney failed to conduct a reasonably careful
pretrial investigation, and that if he had done so, he would have discovered that
Jimenez had a viable entrapment defense. According to Jimenez, this defense
would have provided a basis for dismissal of the indictment, or different advice
regarding a change of plea. Jimenez’s positions lack merit.
First, assuming arguendo that Jimenez’s counsel decided not to pursue an
entrapment defense and not to inform Jimenez of the same, these decisions were
reasonable given the record in this case and the low likelihood of success for
asserting such a defense. The record in this case demonstrates that Jimenez was
willing to serve as an armed drug courier for individuals he believed to be drug
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dealers from the very first time he spoke with a confidential government informant,
and in several other meetings he expressed a willingness to do so and to help
facilitate narcotics transactions. Indeed, Jimenez repeatedly expressed—both
through words and actions—his willingness to participate in the conspiracy in the
months prior to his arrest, and his lack of a prior criminal history does nothing to
change this. Even if, as Jimenez contends, he had to be convinced to participate in
the scheme through others’ persistent requests, it was reasonable for Jimenez’s
counsel to conclude that Jimenez had shown “a willingness to commit the crime” as
demonstrated by a “ready response to the inducement.” Salerno, 66 F.3d at 548.
Decisions by Jimenez’s counsel not to further investigate facts relating to this
defense, not to assert the defense, and not to inform Jimenez of the defense’s
availability when counseling him on whether to plea would thus have been
reasonable, especially in light of the fact that the entrapment defense is risky and
rarely successful. See, e.g., United States v. Balis, Nos. 08 Civ. 5637(GEL), 03 Cr.
1028(GEL), 2009 WL 1117274, at *6 (S.D.N.Y. Apr. 24, 2009) (The entrapment
defense is risky because it “in effect admits that the defendant engaged in criminal
conduct, and attempts to explain away the commission of criminal acts,” and
generally “dilute[s] the force of a denial of wrongdoing.”).
In any event, even assuming Jimenez were able to show that his attorney’s
conduct was somehow deficient, he fails to show that he suffered prejudice as
required under Strickland. “[W]here the alleged error of counsel is a failure to
advise the defendant of a potential affirmative defense to the crime charged, the

13

resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative
defense likely would have succeeded at trial.” Hill v. Lockhart, 474 U.S. 52, 59
(1985). As explained above, in light of the record here, it is unlikely that Jimenez
would have been entitled to a jury instruction on entrapment, let alone that he
would have succeeded on an entrapment defense at trial.
In sum, Jimenez’s counsel did not provide ineffective assistance of counsel by
failing to discover and assert an entrapment defense in order to get the indictment
dismissed or during plea negotiations, or by failing to inform Jimenez of the same
when recommending that he plead guilty.5
B.

Other Issues Concerning Jimenez’s Guilty Plea

Jimenez argues that his plea of guilty was not made voluntarily or with
understanding of its consequences. He asserts that his lawyer forced him to plead
guilty, and that he did not understand the consequences of his plea because he was
“expecting less time imprisonment than the time [he] was sentenced for.” (Pet. at
5.) These arguments are meritless.

5 In his petition, Jimenez also argues that he was provided ineffective assistance of counsel because
his counsel failed to argue “sentencing entrapment.” (Pet. at 5.) It is unclear whether this argument
is aimed at Geduldig or Jimenez’s counsel on appeal, Georgia J. Hinde. In any event, it was not
objectively unreasonable for Jimenez’s counsel not to argue sentencing entrapment given that the
Second Circuit has not recognized sentencing entrapment or sentencing manipulation as a basis for
post-conviction relief. See, e.g., United States v. Cromitie, 727 F.3d 194, 226 (2d Cir. 2013). Further,
“even where [sentencing entrapment] has been approved in theory, ‘its potential application has been
limited to outrageous conduct which overcomes the [defendant's] will.’” United States v. Gomez, 103
F.3d 249, 256 (2d Cir. 1997) (quoting United States v. Knecht, 55 F.3d 54, 57 (2d Cir. 1995)).
Jimenez was the target of a garden-variety sting operation, and there is no evidence in the record
before the Court of outrageous conduct on the part of government agents. Jimenez’s argument that
he was targeted by law enforcement agents due to his emotional fragility and asserted mental illness
is not borne out by the record before the Court. Accordingly, even assuming arguendo that
sentencing entrapment is a valid basis for relief in the Second Circuit, Jimenez suffered no prejudice
as his counsel’s assertion of this defense was not reasonably likely to have altered the result of his
proceedings.

14

First, insofar as Jimenez’s arguments here do not concern ineffective
assistance of counsel, Jimenez could have raised them on direct appeal, yet he failed
to do so. Further, he has proffered no cause for this procedural default.
Accordingly, these arguments are procedurally barred.
In any event, Jimenez’s arguments here fail on the merits, as they are flatly
contradicted by the record. At both his initial plea hearing and the hearing on
November 4, 2011, the Court engaged in extensive colloquies with Jimenez to
confirm that he was pleading guilty freely, voluntarily, and knowingly. Further, the
Plea Agreement itself, which Jimenez signed and which he affirmed on the record
that he understood, clearly provides for a stipulated Guidelines range of 120 to 135
months’ imprisonment. Jimenez said at the plea and at the November 4, 2011
hearing that he discussed the Plea Agreement with his counsel and understood that
the count to which he was pleading guilty allowed for a maximum sentence of life
imprisonment, and at the initial plea hearing he stated that he understood that the
agreement allowed for a mandatory minimum term of ten years’ imprisonment.
The Court also confirmed Jimenez’s understanding of his Guidelines sentencing
range, and that no other promises outside of the plea had been made to him about
what his sentence would be. Petitioner’s “dissatisfaction” (Pet’r’s Br. at 5) with his
sentence of 127 months does not negate his voluntary and knowing agreement to
the plea, nor does it suggest that his counsel was deficient in advising him to accept
it.

15

Further, even if Jimenez were able to show that his attorney’s conduct here
was somehow deficient, he fails to show that he suffered prejudice, as required
under Strickland. This required showing is further complicated in cases like this
where a petitioner makes statements in open court that reflect his knowing and
voluntary waiver of constitutional rights and affirms his desire to proceed with a
guilty plea. Courts afford “a strong presumption of verity” to such statements.
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
Jimenez received a sentence of 127 months’ imprisonment, which is far short
of the statutory maximum of life, and well within the stipulated Guidelines range of
120 to 135 months’ imprisonment. When the Court reviewed the Plea Agreement
with Jimenez, he affirmed that he understood that he was waiving his right to
appeal or engage in post-conviction litigation if his sentence was 135 months or less
(which it was). The Plea Agreement (negotiated by Geduldig) allowed Jimenez to
plead guilty to only one count of several and to avoid a potential life sentence. Such
a benefit is far from prejudice, especially in light of the fact that Jimenez allocuted
to his crimes at his plea and apologized for his actions at his sentencing. (Plea Tr.
19:5-10; Sentencing Tr. 8:15-17.)
IV.

CONCLUSION
For the reasons set forth above, Jimenez’s petition to vacate, set aside, or

correct his sentence under 28 U.S.C. § 2255 is DENIED.
The Court declines to issue a certificate of appealability because there has
been no “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); see Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012). The
16

Court also finds, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from the denial
of this motion would not be taken in good faith. See Feliz v. United States, Nos. 01
Civ. 5544(JFK), 00 CR. 53(JFK), 2002 WL 1964347, at *7 (S.D.N.Y. 2002).
The Clerk of the Court is directed to terminate this action.
SO ORDERED.
Dated:

New York, New York
August 31, 2015

KATHERINE B. FORREST
United States District Judge
Copy to:
Rafael Jimenez
63310-054
Moshannon Valley Correctional Center
Unit C6
555-I Geo Drive
Philipsburg, PA 16866

17