Fernandez v. United States of America

Filing 15

OPINION AND ORDER: For the reasons stated above, there is no need to hold a full testimonial hearing, and Fernandez's motion is DENIED in its entirety. One housekeeping issue remains. Goltzer, presumably out of an abundance of caution, req uested that his affidavit be filed under seal and the Court temporarily granted that request. (Docket No. 587). Although directed to do so, Fernandez did not make any argument for keeping the affidavit under seal; moreover, his own declaration - f iled publicly on the docket - discloses his attempts to cooperate with the Government. In light of that, the Court concludes that there is no basis to keep the Goltzer affidavit under seal. See, e.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 1 10, 119-20 (2d Cir. 2006) (discussing the presumption in favor of public access to judicial documents). As Fernandez 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; see also Lozada v. United States, 107 F.3d 1011, 1015-16 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). Moreover, this Court certifies pursuant to Title 28, United States Code, Section 1915(a)(3) that any appeal from this Order would not be taken in good faith, so in forma pauperis status is denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to close Docket No. 15-CV-2230, to unseal the Goltzer affidavit, and to mail a copy of this Opinion and Order to Fernandez. (Signed by Judge Jesse M. Furman on 9/12/2016) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
JUAN FERNANDEZ,
:
:
Petitioner,
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:
-v:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
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:
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09/12/2016
12-CR-445 (JMF)
15-CV-2230 (JMF)
OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:
Petitioner Juan Fernandez was convicted, following a guilty plea, of conspiracy to
distribute or possess with the intent to distribute controlled substances and possession of a
firearm during and in relation to a drug-trafficking crime, and sentenced principally to 195
months’ imprisonment. (Docket No. 453). 1 Proceeding pro se, he now moves, pursuant to Title
28, United States Code, Section 2255, to vacate, set aside, or correct his sentence, alleging that
he received ineffective assistance of counsel in various ways. (Memorandum of Law in Support
of Motion to Vacate (Docket No. 538) (“Pet’r’s Mem.”) 13). For the reasons that follow,
Fernandez’s petition is DENIED in its entirety.
BACKGROUND
On June 5, 2012, Fernandez was charged (in an indictment naming nineteen other
defendants) with two counts: (1) conspiracy to distribute or possess with intent to distribute
controlled substances, in violation of Title 21, United States Code, Sections 846 and
841(b)(1)(A); and (2) discharging a firearm during and in relation to a drug-trafficking offense,
1

Unless otherwise noted, all docket citations are to the criminal case, 12-CR-445 (JMF).

in violation of Title 18, United States Code, Sections 924(c)(1)(A)(iii) and 2. (Docket No. 2).
Sarah Baumgartel of the Federal Defenders of New York was assigned to represent Fernandez.
(Docket No. 61). On March 20, 2013 — after bringing an unsuccessful motion to suppress
wiretap evidence (see Docket Nos. 144, 196) — Fernandez pleaded guilty, pursuant to a plea
agreement, to the narcotics conspiracy charge and to a lesser included offense of the second
count, namely possessing a firearm during and in relation to the drug-trafficking offense, in
violation of Title 18, United States Code, Section 924(c)(1)(A)(i) and 2. (Government Memo in
Opposition of Motion to Vacate (Docket No 552) (“Gov’t Mem.”), Ex. A, at 2-3). Notably,
whereas the crimes with which Fernandez had been charged carried a combined mandatory
minimum of 240 months’ imprisonment, the crimes to which he pleaded guilty carried a
combined mandatory minimum of 180 months’ imprisonment. Additionally, in exchange for
Fernandez’s plea, the Government also agreed not to file a prior felony information (id. at 3),
which would have resulted in a mandatory minimum of 240 months on Count One alone (and a
combined mandatory minimum of 360 months). See 21 U.S.C. §§ 841(b)(1)(A), 851.
At the outset of the plea proceeding, Baumgartel, at Fernandez’s request, made an
extensive (and unusual) statement about the fairness of the federal narcotics laws and mandatory
minimum sentences. (Docket No. 261 (“Plea Tr.”) at 3-7). Addressing Fernandez, the Court
responded by emphasizing as follows: “You are under absolutely no obligation to enter a plea of
guilty. It is your choice whether you plead guilty or you choose to go to trial, and no one can
force you to plead guilty.” (Id. at 8). Fernandez confirmed that he understood and that he
wished to proceed with the guilty plea notwithstanding Baumartel’s statement on his behalf. (Id.
at 10). He went on to confirm, among other things, that he had discussed the charges against him
and any possible defenses to those charges with Baumgartel, that Baumgartel had explained the

2

consequences of entering a plea of guilty to him, and that he was satisfied with Baumgartel’s
representation of him. (Id. at 12-13). In response to questioning, Fernandez further
acknowledged that he understood the elements of the offenses to which he was pleading; that he
understood the maximum and minimum sentences that applied to those crimes; that he had read
the plea agreement; that he had discussed the plea agreement with Baumgartel; and that he fully
understood the terms of the agreement. (Id. at 34-38). Most relevant here, Fernandez confirmed
his understanding that, pursuant to the terms of the plea agreement, he was waiving his right to
appeal or otherwise challenge (including in a motion pursuant to Section 2255) any sentence
within or below the United States Sentencing Guidelines range to which the parties had
stipulated — namely, 180 to 195 months’ imprisonment. (Id. at 37; see Gov’t Mem. Ex. 4, at 7).
On May 3, 2013, about a month and a half after Fernandez’s plea, Baumgartel advised
the Court that Fernandez wanted new counsel. (Docket No. 280). At a conference on May 9,
2013, Baumgartel proffered that Fernandez was “concerned” that she had given him “bad advice
with respect to whether he should enter a plea” and that he had “talked about possibly
withdrawing his plea,” a course of action that she did not believe “would be in his interest.”
(Gov’t Mem. Ex. C (“Subst. Tr.”) at 3). She explained that, in her view, “it would be extremely
beneficial” for Fernandez to “consult with a different lawyer.” (Id.). Speaking on his own
behalf, Fernandez acknowledged that Baumgartel was “a good lawyer,” but questioned her
preparation for his case and indicated that they did not “see eye to eye.” (Id. at 5). “I think I just
need a second opinion,” he continued. “I’m [sic] just need somebody to overlook [sic] my case
again and see if something went wrong during the case, during the process.” (Id. at 6). The
Court appointed George Goltzer to replace Baumgartel, and expressly noted that Fernandez

3

could consult with Goltzer about whether to move to withdraw his guilty plea. (Id. at 4, 6; see
also Docket No. 467 (“Sent. Tr.”) at 26-27). Fernandez ultimately stood by his plea.
When Goltzer was appointed, the Court adjourned sentencing to October 2, 2013. (Subst.
Tr. at 8-9). Thereafter, at the parties’ request, the Court adjourned sentencing three times to
allow Fernandez an opportunity to cooperate with the Government. (See Docket Nos. 378, 419,
430). On February 28, 2014, after the Court denied the Government’s request for a fourth
adjournment, Fernandez appeared for sentencing. (Sent. Tr. at 46; Docket No. 453). At the
outset of the proceeding, the Court confirmed that it had received and reviewed, among other
things, Goltzer’s sentencing submission on Fernandez’s behalf, which requested a sentence of
180 months, the mandatory minimum. (Sent. Tr. at 3, 31). Fernandez then acknowledged that
he had read the presentence report and discussed it with Goltzer. (Sent. Tr. at 4-5). Based upon
evidence presented at the trial of one of Fernandez’s co-defendants — evidence indicating that
the drug conspiracy involved substantially larger quantities of drugs than either the plea
agreement or the presentence report had reflected — the Court went on to find that the applicable
Sentencing Guidelines range was 228 to 270 months’ imprisonment. (Sent. Tr. at 17-18).
Exercising its discretion under Title 18, United States Code, Section 3553(a), however, the Court
sentenced Fernandez to a combined sentence of 195 months’ imprisonment (135 months on
Count One and 60 months, to be served consecutively, on Count Two). (Id. at 30-32). In
explaining its leniency, the Court explicitly cited, among other things, “mitigating circumstances
cited in Mr. Goltzer’s letter.” (Id. at 31). The Court explained that it was “not inclined to go as
low as the mandatory minimum, as Mr. Goltzer [had] asked,” in part because of “the amount of
drugs involved” and the higher Sentencing Guidelines range. (Id. at 32).

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At the conclusion of sentencing, the Court advised Fernandez that — to the extent he had
“not given up [his] right to appeal through [his] plea of guilty and the plea agreement” — he had
the right to appeal and that any notice of appeal had to be filed within fourteen days of entry of
the judgment of conviction. (Id. at 38). Fernandez did not file a direct appeal.
LEGAL STANDARDS
Section 2255 permits a prisoner in federal custody to challenge his sentence on the
ground that it “was imposed in violation of the Constitution or laws of the United States.” 28
U.S.C. § 2255(a). As a general matter, a Section 2255 motion requires a hearing unless files and
records conclusively show that the prisoner is entitled to no relief. See 28 U.S.C. § 2255(b); see
also Machibroda v. United States, 368 U.S. 487, 494 (1962); Pham v. United States, 317 F.3d
178, 184 (2d Cir. 2003). No hearing is required, however, where the petitioner’s allegations are
“vague, conclusory, or palpably incredible.” Machibroda, 368 U.S. at 495. Instead, to warrant a
hearing, the petitioner “must set forth specific facts supported by competent evidence, raising
detailed and controverted issues of fact that, if proved at a hearing, would entitle him to relief.”
Gonzalez v. United States, 722 F.3d 118, 131 (2d Cir. 2013). A district court has discretion to
exercise its common sense when determining whether to hold a hearing and may investigate facts
outside the record without the personal presence of the petitioner. See Machibroda, 368 U.S. at
495; see also, e.g., Chang v. United States, 250 F.3d 79, 85-86 (2d Cir. 2001).
DISCUSSION
In this case, Fernandez’s only claim is that he received ineffective assistance of counsel,
but he bases that claim on multiple alleged failings of both Baumgartel and Goltzer. In
particular, liberally construed, see, e.g., Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013),
Fernandez’s petition alleges that he received ineffective assistance of counsel because

5

(1) Baumgartel failed to inform him of the likely consequences of pleading guilty, including the
maximum sentence if he was convicted at trial; (2) Baumgartel failed to conduct an adequate
pretrial investigation; (3) Baumgartel failed to file substantive pre-trial motions; (4) Goltzer
failed to review or explain the presentence report to him prior to sentencing; (5) Goltzer failed to
file objections to the presentence report; (6) Goltzer failed to submit mitigating evidence at
sentencing; (7) Goltzer failed to object to Fernandez’s sentence as “substantively unreasonable”;
and (8) Goltzer failed to file a notice of appeal as instructed. (Pet’r’s Mem. 13, 21, 24, 26). All
but the last contention — that Goltzer failed to file a notice of appeal as Fernandez directed —
can be swiftly and easily rejected as waived and meritless.
A. Allegations With Respect to Baumgartel and Sentencing
As an initial matter, all of Fernandez’s claims relating to Baumgartel and Goltzer’s
conduct with respect to sentencing were waived. The Second Circuit has repeatedly — and
emphatically — held that a defendant’s knowing and voluntary waiver of the right to appeal a
sentence is generally valid and enforceable. See, e.g., United States v. Harrison, 699 F.3d 158,
159 (2d Cir. 2012); United States v. Riggi, 649 F.3d 143, 147-48 (2d Cir. 2011); United States v.
Buissereth, 638 F.3d 114, 117-18 (2d Cir. 2011); United States v. Pearson, 570 F.3d 480, 485
(2d Cir. 2009) (per curiam); United States v. Lee, 523 F.3d 104, 106-07 (2d Cir. 2008); United
States v. Morgan, 406 F.3d 135, 137 (2d Cir. 2005) (“Morgan II”); United States v. GomezPerez, 215 F.3d 315, 318 (2d Cir. 2000); United States v. Djelevic, 161 F.3d 104, 106-07 (2d Cir.
1998) (per curiam); United States v. Salcido-Contreras, 990 F.2d 51, 52-53 (2d Cir. 1993) (per
curiam). In fact, the Court of Appeals has gone so far as to say that “in no circumstance may a
defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily
waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to

6

the agreement.” Pearson, 570 F.3d at 485 (internal quotation marks and alterations omitted)
(emphasis added). This near-ironclad rule “recognizes that ‘plea agreements can have extremely
valuable benefits to both sides — most notably, the defendant gains reasonable certainty as to the
extent of his liability and punishment, and the Government achieves a conviction without the
expense and effort of proving the charges at trial beyond a reasonable doubt.’” United States v.
Morgan, 386 F.3d 376, 380 (2d Cir. 2004) (“Morgan I”) (quoting United States v. Rosa, 123
F.3d 94, 97 (2d Cir. 1997)).
More specifically, courts in this Circuit “have ‘repeatedly upheld the validity of [appeal]
waivers’ if they are ‘knowingly, voluntarily, and competently provided by the defendant.’”
Riggi, 649 F.3d at 147 (quoting Gomez-Perez, 215 F.3d at 318) (alteration in original). Indeed,
as long as an appellate waiver was knowing and voluntary, and the Government has fulfilled its
end of the bargain, the exceptions to enforceability are “very circumscribed.” Gomez-Perez, 215
F.3d at 319. In fact, they are effectively limited to circumstances in which “the sentence
imposed was based on unconstitutional factors — such as race, naturalized status, or the ability
to pay restitution” or when a sentencing court provides no rational whatsoever for the sentence.
Riggi, 649 F.3d at 147 (citations omitted); see also Buissereth, 638 F.3d at 117-18; Lee, 523 F.3d
at 106-07. Thus, for example, the Second Circuit has “upheld waiver provisions even in
circumstances where the sentence was conceivably imposed in an illegal fashion or in violation
of the Guidelines, but yet was still within the range contemplated in the plea agreement.” GomezPerez, 215 F.3d at 319; accord Buissereth, 638 F.3d at 115-16; Djelevic, 161 F.3d at 107; Rosa,
123 F.3d at 98; United States v. Yemitan, 70 F.3d 746, 748 (2d Cir. 1995). Additionally, the
Court has repeatedly upheld appellate waivers even where the defendant’s claim on appeal did
not become available until after the plea agreement was executed. See, e.g., United States v.

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Oladimeji, 463 F.3d 152, 155-56 (2d Cir. 2006) (“[T]he possibility of a favorable change in the
law after a plea is simply one of risks that accompanies pleas and plea agreements.” (quoting
Morgan II, 406 F.3d at 137)).
Here, the record makes clear that Fernandez knowingly and voluntarily waived his right
to challenge his sentence of 195 months. Fernandez signed a plea agreement expressly waiving
his right to file a direct appeal or collaterally attack any sentence within or below the stipulated
Sentencing Guidelines range of 180 to 195 months’ imprisonment. (Gov’t Mem. Ex. A, at 6; see
Plea Tr. 35-36). Further, during the plea proceeding, Fernandez confirmed that no one had
forced him or threatened him to sign the plea agreement and that no one had offered him any
inducements or made him any promises to sign the plea agreement (other than what was set forth
on the record or in the agreement itself) either. (Plea Tr. at 38). He also indicated that he
himself had read the plea agreement, that he had reviewed it with Baumgartel, and that he “fully”
understood its terms. (Plea Tr. at 36). Even more significant for present purposes, Fernandez
expressly and specifically acknowledged that he understood the waiver provision in the plea
agreement — namely, that he was “agreeing not to appeal . . . or otherwise challenge any
sentence within or below the stipulated sentencing guidelines range of 180 to 195 months of
imprisonment.” (Id. at 37). These unambiguous statements on the record confirm that
Fernandez knowingly and voluntarily waived his right to collaterally attack the sentence he
ultimately received, and they belie any belated and self-serving suggestion that Baumgartel
compelled him to enter the plea agreement or failed to adequately explain its terms. Given that
record, given what Fernandez received in exchange for his plea (including, most notably, the
Government’s acceptance of a plea to a lesser-included offense and agreement not to file a prior
felony information), and given that Fernandez makes no claim that his sentence was imposed on

8

the basis of a constitutionally impermissible factor or other prohibited factor, not to enforce the
waiver in these circumstances “would render the plea bargaining process and the resulting
agreement meaningless.” Salcido-Contreras, 990 F.2d at 53. 2
In any event, even if Fernandez’s allegations relating to Baumgartel and Goltzer’s
conduct with respect to sentencing had not been waived, they are meritless. For one thing,
Fernandez proffers no facts that would support his claims. For example, he fails to identify any
witnesses or evidence that counsel should have uncovered (either for purposes of trial or for
purposes of sentencing), to cite any arguments (legal or factual) that counsel should have made
but did not, or to explain how he was forced to accept the plea agreement (despite his statements
on the record to the contrary). See, e.g., Rosa v. United States, 170 F. Supp. 2d 388, 399, 403
(S.D.N.Y. 2001) (dismissing a Section 2255 motion where the petitioner gave “no explanation of
precisely what his attorney failed to do,” offering “nothing but a list of conclusory allegations of
being ‘forced’ to sign the agreement, of some unidentified person ‘lying’ to him regarding his
sentence, of his ‘rushing’ into the plea without investigation and the plea not having been

2

In his reply, Fernandez alleges that Baumgartel gave him a paper to read from during the
plea proceeding, and suggests on that basis that his plea was not knowing and voluntary.
(Docket No. 583 at 4). Based upon its own observations of Fernandez at the plea proceeding, the
Court finds that that allegation is false; indeed, the Court would not have allowed Fernandez to
read from a piece of paper during the plea colloquy (except perhaps in describing the factual
basis for his plea, as defendants often prepare written allocutions on that score with the
assistance of counsel). In any event, even if Fernandez had read from a prepared script during
his plea allocution, that would not necessarily establish that his plea was involuntary or
unknowing. See, e.g., Ramos v. United States, No. 03-CR-724 (GEL), 2010 WL 4922521, at *4
(S.D.N.Y. Nov. 24, 2010) (finding “nothing inappropriate” about defense counsel preparing a
statement for the defendant to read from during a plea colloquy “so long as the defendant agrees
the statement is accurate and voluntarily accepts the statement”); Ellis v. United States, No. CV99-04334 (RR), 2000 WL 34448875, at *2-3, 5 (E.D.N.Y. Mar. 3, 2000) (finding, in light of the
Court’s questioning, that the defendant’s plea was knowing and voluntary even though she read a
prepared statement in her allocution); United States v. Felzenberg, No. 93-CR-460 (SS), 1998
WL 152569, at *12 (S.D.N.Y. Apr. 2, 1998) (same).

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‘knowingly and intelligently’ made”). Moreover, almost all of Fernandez’s claims are explicitly
refuted by the record. For instance, Baumgartel did file a pretrial motion seeking to suppress
critical evidence against Fernandez (see Docket No. 143), and explicitly asserted Fernandez’s
right to seek a severance from his co-defendants (see Docket No. 194). Fernandez expressly
confirmed his understanding of the elements of the offenses to which he pleaded guilty and the
maximum sentences (Plea Tr. at 22-31), and admitted on the record that Goltzer did in fact
review the presentence report with him (Sent. Tr at 4-5). And Goltzer did file a sentencing letter
on his behalf and sought the lowest sentence that could be imposed. (Docket No. 451). In the
face of that record, Fernandez’s claims fall flat. See, e.g., Blackledge v. Allison, 431 U.S. 63, 74
(1977) (finding that a defendant’s guilty plea statements “constitute a formidable barrier in any
subsequent collateral proceedings” because “[s]olemn declarations in open court carry a strong
presumption of verity” and any contrary “subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as are contentions that in the face of
the record are wholly incredible.”); Garafola v. United States, 909 F. Supp. 2d 313, 331
(S.D.N.Y. 2012) (summarily dismissing a claim that “wholly contradicts the petitioner’s
previous sworn statements in court at the plea proceeding — that the petitioner understood the
charges against him and that he had adequate time to discuss the charges and the Plea Agreement
with his attorney”).
Finally, Fernandez has not (and could not) prove prejudice, as required to prevail on a
claim of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687
(1984). With respect to his plea and pre-plea allegations, Fernandez would have to show that
“there is a reasonable probability that, but for counsel’s errors, he would not have pled guilty and
would have insisted on going to trial.” Gonzalez, 722 F.3d at 130 (quoting Hill v. Lockhart, 474

10

U.S. 52, 59 (1985)). Fernandez falls far short of doing so, merely asserting in conclusory fashion
that he “would have opted to proceed to trial” or pleaded guilty to the indictment to preserve his
right to appeal. (Pet’r’s Mem. 20). But had Fernandez pleaded guilty to the indictment or been
convicted after trial, his mandatory minimum sentence would have been 240 or (if the
Government had filed a prior felony information) 360 months rather than the 180 months he
bargained for in his plea agreement. And Fernandez points to no colorable issues that he could
have realistically appealed. As for sentencing, Fernandez fails to establish that Goltzer could
have done anything to obtain an even lower sentence than he did. As it is, the Court granted a
substantial variance below the applicable Guidelines range of 228 to 270 months’ imprisonment,
explicitly citing Goltzer’s arguments for leniency as one basis. (Sent Tr. at 31). Notably,
Fernandez himself concedes that his sentence of 195 months was “lenient.” (Pet’r’s Mem. 26).
B. Allegations With Respect to Filing a Notice of Appeal
Fernandez’s assertion that Goltzer failed to file a notice of appeal as instructed requires
separate consideration, in part because it is not subject to the appeal waiver. That is, even when
a defendant waives his right to appeal, counsel must file a notice of appeal if the defendant
instructs him or her to do so. See, e.g., Gomez-Perez, 215 F.3d at 319. If counsel fails to do so,
both prongs of Strickland are satisfied — regardless of whether the defendant could have raised a
meritorious issue on appeal. See, e.g., Campusano v. United States, 442 F.3d 770, 774-75 (2d
Cir. 2006). As a result, a petitioner who claims that he asked his counsel to file an appeal is
entitled to a hearing to determine whether the petitioner did, in fact, make that request. See id. at
776. Significantly, however, the hearing need not be testimonial; instead, a district court has
discretion to determine how to develop the record and may rely solely on letters, documentary
evidence, and affidavits. See Chang, 250 F.3d at 85-86 (citing Raines v. United States, 423 F.2d

11

526, 529-30 (4th Cir. 1970)). A petition may not be summarily dismissed if there is a factual
dispute, but a court can decide disputed facts on the basis of written submissions if in-person
testimony would add little or nothing to the written submissions — if, for example, the
petitioner’s affidavit contains a “generic claim . . . based solely on [petitioner’s] own highly selfserving and improbable assertions.” Id. at 86.
The Second Circuit’s decision in Padin v. United States, 521 F. App’x 36 (2d Cir. 2013)
(summary order), is instructive. There, as here, the petitioner asserted that his counsel had failed
to file a notice of appeal as instructed. In response to that assertion, the Government submitted
an affidavit from the petitioner’s former defense counsel, in which counsel denied having been
asked by the petitioner to file a notice of appeal. See id. at 37. Thereafter, the petitioner
submitted an affidavit asserting that he had in fact told counsel that he wanted to appeal the
sentence; he also submitted an affidavit from his wife stating that she had gone to counsel’s
office to discuss “what could be done about his sentence” and had explicitly asked counsel about
an appeal. Id. Despite the competing affidavits, the district court “declined to hold a full-blown
testimonial hearing,” and denied the petitioner’s motion pursuant to Section 2255. Id. at 38. On
appeal, the Second Circuit affirmed, concluding that the district court had “acted within its
discretion in declining to hold a full-blown testimonial hearing.” Id. “In light of the detailed
affidavit of defense counsel, the transcripts of the proceedings, the district court’s observations
of [the petitioner] and his interactions with counsel, and the district court’s careful factual
analysis,” the Court reasoned, “there was a sufficient evidentiary record to permit the district
court to reject, without a full testimonial hearing, [the petitioner’s] claim that he asked his
counsel to file a notice of appeal on his behalf.” Id. (citing Chang, 250 F.3d at 85-86).

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Although unpublished, Padin all but compels the conclusion that Fernandez’s motion
should be denied and that there is no need to hold a full testimonial hearing. See, e.g., United
States v. Tejeda, 824 F. Supp. 2d 473, 475 (S.D.N.Y. 2010) (stating that a district court is not “at
liberty . . . to disregard,” let alone “contradict[,] a Second Circuit ruling squarely on point merely
because it was rendered in a summary order”); see also United States v. Payne, 591 F.3d 46, 58
(2d Cir. 2010) (“[D]enying summary orders precedential effect does not mean that the court
considers itself free to rule differently in similar cases”). In light of Fernandez’s allegations, the
Court directed Goltzer to submit an affidavit regarding Fernandez’s alleged request that an
appeal be filed. (Docket No. 573). Goltzer did so (requesting that the affidavit be filed under
seal), and categorically denied “that [he] failed to follow any request from Fernandez to file a
notice of appeal in this case or to directly appeal from the judgment in this matter.” (Goltzer
Affidavit (“Goltzer Aff.”) ¶ 3). Fernandez, Goltzer avers, “never requested that [he file a notice
of appeal] orally and [Goltzer] never received any other form of communication request that [he]
file a notice of appeal.” (Id. ¶ 3). Goltzer goes on to explain that that rather than pursue an
appeal, his post-sentence strategy was to pursue a reduction in Fernandez’s sentence by having
Fernandez cooperate with the Government. (Id. ¶ 4). When the Government ultimately refused
to grant Fernandez a cooperation agreement, Goltzer states, he “advised Mr. Fernandez of this
sad news and considered [his] representation finished.” (Id.)
Admittedly, Fernandez contradicts Goltzer in a reply declaration, asserting (albeit for the
first time) that, “after he was sentenced, he met with Goltzer briefly in the hallway of the
courtroom and he informed [Goltzer] that he wanted to appeal his case.” (Response to Goltzer
Declaration (Docket No. 597) (“Pt’r’s Resp. Goltzer Decl.”) 2; see also id. (stating that Goltzer
advised Fernandez that Goltzer would “get in contact with [Fernandez] so we may move forward

13

with a [sic] appeal.”)). But Fernandez’s declaration is otherwise consistent with Goltzer’s
account, acknowledging that after the sentencing proceeding the two were in regular contact
about the possibility of cooperating and that “every communication that Fernandez had with
Goltzer was about [Fernandez] cooperating with the government.” (Id. at 2; see Goltzer Aff.
¶ 4). And, in any event, Fernandez’s assertions are not enough by themselves in light of Padin,
where the petitioner submitted not only an affidavit from himself, but also one from his wife.
See Padin, 521 F. App’x at 37-38. Significantly, Fernandez provides no evidence to corroborate
his account of the hallway conversation with Goltzer. He cites no other instances in which he
discussed an appeal with Goltzer, despite the fact that, after sentencing, they regularly
communicated about the possibility of cooperation. And, despite having been informed at
sentencing that he had only fourteen days to file a notice of appeal (Sent. Tr. at 38), he waited
over a year to allege that Goltzer failed to file a notice of appeal.
At bottom, Fernandez’s claim, like the petitioner’s claim in Chang, is a “generic” one
that can be (and often is) made in any case in which the defendant fails to file a notice of appeal.
250 F.3d at 86. That is not enough to warrant a hearing, let alone relief, given, among other
things, the affidavit from Goltzer, which unambiguously states that Fernandez did not request
that he file a notice of appeal; the plea agreement, in which Fernandez unambiguously waived
the right to appeal the sentence he ultimately received; the plea and sentencing transcripts, which
make clear that Fernandez understood his rights, the nature of the charges to which he pleaded
guilty, and the contents of the plea agreement; the record between the plea proceeding and
sentencing, which corroborates Goltzer’s claim that he and Fernandez opted to pursue
cooperation rather than an appeal; and the utter lack of credibility of Fernandez’s other claims in
the present motion, most of which are, as discussed, directly refuted by the record. See Chang,

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250 F.3d at 86 (holding that the district court did not err in denying a Section 2255 motion where
“[t]rial counsel’s detailed description of events was eminently credible” and the petitioner
offered nothing more than “his own highly self-serving and improbable assertions”). 3
CONCLUSION
For the reasons stated above, there is no need to hold a full testimonial hearing, and
Fernandez’s motion is DENIED in its entirety. One housekeeping issue remains. Goltzer,
presumably out of an abundance of caution, requested that his affidavit be filed under seal and
the Court temporarily granted that request. (Docket No. 587). Although directed to do so,
Fernandez did not make any argument for keeping the affidavit under seal; moreover, his own
declaration — filed publicly on the docket — discloses his attempts to cooperate with the
Government. In light of that, the Court concludes that there is no basis to keep the Goltzer
affidavit under seal. See, e.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir.
2006) (discussing the presumption in favor of public access to judicial documents).

As Fernandez 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; see also Lozada v. United
3

Even where a defendant does not ask his counsel to file an appeal, counsel “has a
constitutionally imposed duty to consult with the defendant about whether he wants to file an
appeal if ‘there is reason to think either (1) that a rational defendant would want to appeal . . . , or
(2) that this particular defendant reasonably demonstrated to counsel that he was interested in
appealing.’” Padin, 521 F. App’x at 38 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 480
(2000)). In evaluating “whether a rational defendant would want to appeal or whether the
defendant reasonably demonstrated an interest in appealing, a court must consider all the relevant
factors, including whether the conviction followed a trial or a guilty plea, whether the defendant
received the sentence bargained for as part of a plea, and whether the plea expressly reserved or
waived some or all appeal rights.” Id. Evaluating those factors here, there is no basis to
conclude that Goltzer had a duty to consult with Fernandez about whether he wanted to file an
appeal. Among other things, Fernandez entered a guilty plea (and, even after receiving and
consulting with new counsel, opted to stand by that plea); obtained a favorable plea deal from the
Government; waived his right to appeal any sentence within or below the stipulated Sentencing
Guidelines range of 180 to 195 months’ imprisonment; and received a sentence that he himself
describes as “lenient” (Pet’r’s Mem. 26), well below the applicable Guidelines range.
15

States, 107 F.3d 1011, 1015-16 (2d Cir. 1997), abrogated on other grounds by United States v.
Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). Moreover, this Court certifies pursuant to Title 28,
United States Code, Section 1915(a)(3) that any appeal from this Order would not be taken in
good faith, so in forma pauperis status is denied. See Coppedge v. United States, 369 U.S. 438,
444-45 (1962).
The Clerk of Court is directed to close Docket No. 15-CV-2230, to unseal the Goltzer
affidavit, and to mail a copy of this Opinion and Order to Fernandez.

SO ORDERED.
Date: September 12, 2016
New York, New York

16