Lopez v. United States of America
OPINION & ORDER: For the reasons stated above, the Petition to vacate is DENIED. The Court also denies Petitioner's request for a hearing on these issues. A certificate of appealability will not issue because Petitioner has failed to make a subs tantial showing of a denial of a constitutional right. 28 U.S. C. § 2253. The Clerk of Court is directed to close this case; all pending motions are moot. (Signed by Judge Kimba M. Wood on 4/20/2017) (ras) (Signed by Judge Kimba M. Wood on 4/20/2017) (ras)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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OPINION & ORDER
UNITED STATES OF AMERICA,
KIMBA M. WOOD, United States District Judge:
Petitioner Edwin Lopez has filed a motion to vacate, set aside, or correct his sentence,
pursuant to 28 U.S.C. § 2255, alleging that his trial attorney, Jay Goldberg, rendered ineffective
assistance of counsel by failing to make certain arguments at sentencing and failing to file a notice
of appeal. Petition, Dkt. No. 74. For the reasons stated herein, his petition is DENIED.
On October 10, 2013, a grand jury in this District returned an indictment charging
Petitioner and one other defendant with one count of participating in a conspiracy to distribute and
to possess with intent to distribute one kilogram and more of mixtures and substances containing
a detectable amount of heroin, and one count of distributing and possessing with the intent to
distribute the same. Dkt. No. 9. The charges arose out of an interaction between the Petitioner and
a cooperating witness on July 12, 2013, in which Petitioner offered to sell the cooperating witness
a kilogram and a half of heroin. Complaint, Dkt. No. 1 ~ 9. On April 28, 2014, the Petitioner
appeared before Magistrate Judge Andrew J. Peck and pled guilty to Count One of the indictment
pursuant to a plea agreement. During the guilty plea allocution, the Petitioner was questioned
extensively on his understanding of the plea agreement, the stipulated Guidelines range for his
crime, and his agreement to waive his rights to directly appeal or collaterally attack his conviction
or sentence if he was given a sentence within or below the stipulated Guidelines range. Plea
Transcript ("Plea Tr."), Dkt. No. 39, 10-13. At the end of the allocution, Petitioner confirmed his
desire to plead guilty. Id. at 13. On September 30, 2013, the undersigned accepted Petitioner's
guilty plea. Dkt. No. 51.
On October 2, 2014, Petitioner and Mr. Goldberg appeared before this court for sentencing.
Petitioner requested a two-level variance based on a new amendment to the United States
Sentencing Guidelines ("Amendment 782") that was set to take effect on November 1st of that
year. Sent. Tr., Dkt. No. 55 at 6. 1 The Court granted that request, resulting in a lower Guidelines
range of 57 to 71 months. Id. at 6. The Court sentenced the Petitioner to 57 months of
imprisonment. Id. at 7-8.
On January 7, 2015, Petitioner filed a motion pursuant to Title 18, United States Code,
Section 3582(c)(2), seeking the same Amendment 782 reduction he had been given at sentencing.
Dkt. No. 80. Because Petitioner had already benefitted from the Amendment, the Court denied the
motion. Dkt. No. 81.
On August 13, 2015, Petitioner filed this motion, seeking to have his sentence vacated
pursuant to Title 28, United States Code, Section 2255. Petitioner contends that Mr. Goldberg
violated his Sixth Amendment right to effective assistance of counsel in two ways. First, Petitioner
argues that his counsel promised to argue for a minimal role adjustment leading up to and on the
The Sentencing Commission voted in April of2014 to enact Amendment 782, lowering the base offense levels in
the Guidelines Drug Quantity Table across drug types. This reduced by two levels the sentence for many drug
trafficking offen~e5, including Petitioner'~.
date of Petitioner's sentencing, and did not. Pet. Mem. 6-9. Second, Petitioner argues that his
counsel failed to file a notice of appeal after Petitioner requested that he do so. Id at 11.
To prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy the two-
pronged standard established in Strickland v. Washington, 466 U.S. 668 (1984), by showing both
(1) "that counsel's representation fell below an objective standard ofreasonableness," and (2) "that
counsel's deficient performance prejudiced" the petitioner. Roe v. Flores-Ortega, 528 U.S. 470,
476-77 (2000) (internal quotation marks omitted). Although courts must consider both prongs of
the Strickland test, the Supreme Court has explained that "if it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be
so, that course should be followed." Strickland, 466 U.S. at 697.
Prevailing on a Strickland claim is not easy. In order to "give appropriate deference to
counsel's independent decisionmaking," courts "indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance." Parisi v. United States,
529 F.3d 134, 141 (2d Cir. 2008) (internal quotation marks omitted). Similarly, in establishing
prejudice in satisfaction of the second prong of Strickland, a Petitioner bears a "heavy burden."
Strickland, 466 U.S. at 692. "It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel
would meet that test." Strickland at 693. Rather, a Petitioner must show that "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome." Strickland at 694.
To establish prejudice in the context of a guilty plea, a petitioner "must show that there is
a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). "A reasonable probability
is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694;
Flores v. Demskie, 215 F.3d 293, 304 (2d Cir. 2000). Similarly, with regard to counsel's failure
to file an appeal, "a defendant must demonstrate that there is a reasonable probability that, but for
counsel's deficient [advice], he would have timely appealed." Roe v. flares-Ortega, 528 U.S. 470,
Minimal Role Reduction
The Petitioner alleges that his guilty plea was "unknowingly, unintentionally and
unintelligently entered [into]" due to counsel's failure to argue for a downward departure pursuant
to United States Sentencing Guideline ("U.S.S.G.") § 3Bl.2, based on Petitioner's minimal role in
the offense. Pet. Mem. at 6-7. Petitioner claims a he played minor role based on the fact that he
merely transported, rather than distributed or sold, the illegal narcotics at issue. Id at 8. Petitioner
alleges that his counsel informed him that he would seek this downward departure, but he never,
in fact, did. Id. at 7.
Counsel's actions were not so objectively unreasonable as to violate the first prong of
Strickland. Petitioner's counsel did argue that Petitioner played a minor role in the offense. Sent.
Sub. at 3. He also argued that Petitioner's minimal participation warranted a below-Guidelines
In his sentencing submission to the court, Mr. Goldberg advocated for a non-
Guidelines sentence pursuant to § 3553(a) for, among other reasons, Petitioner's "degree of
participation in the criminal transaction." Sent. Sub. at 1. Defense counsel stated that Petitioner
"had nothing to do with the price and quantity negotiations" for the illegal drug transaction, and
only served as a middleman to transport the drugs. Id at 3. Counsel reiterated this argument at
Petitioner's sentencing, where he stated that "the two main culprits ... were Dominicans" who
used his client as an "American puppet in conducting the transaction," and that Petitioner should
"be given a substantial variance from the Guidelines." Sent. Tr. at 4.
Petitioner is correct that Mr. Goldberg failed to formally request a downward departure
under U.S.S.G. § 3Bl.2, and instead chose to highlight Petitioner's minor role as a factor for the
court's consideration under 18 U.S.C. § 3553(a). This was the only course of action available to
Mr. Goldberg. Petitioner's plea agreement stipulated an applicable Guideline range, and precluded
Petitioner's counsel from seeking a downward departure from that range under U.S.S.G. § 3B 1.2.
See Plea Agr. at 3. That left Counsel free to make the same "minor role" argument in the context
of§ 3553, which counsel did at length.
The fact that counsel did not request a § 3B 1.2 downward departure, as opposed to a
variance under § 3553, did not have any effect on Petitioner's sentence. For these reasons,
counsel's actions were not unreasonable, and did not violate Petitioner's Sixth Amendment right.
Petitioner has also failed to prove that he suffered any prejudice as a result of Mr.
Goldberg's action. Specifically, he has not shown that he would not have pied guilty but for
counsel's alleged assurance of a § 3B1.2 reduction. If a Petitioner claims he would not have entered
into a plea agreement but for his counsel's deficient instruction, the court must examine whether
the Petitioner's agreement to plead guilty was, at the time, knowing and voluntary. North Carolina
v. Alford, 400 U.S. 25 (1970). A defendant's previous sworn statement that he understood the
terms of his plea agreement should carry weight in the face of a later assertion to the contrary.
Blackledge v. Allison, 431 U.S. 63, 74 (1977). At his allocution, Petitioner stated that he understood
the terms of his plea agreement and that his lawyer had gone over "all of the contents'' with him.
Plea Tr. at 11-12. The plea agreement clearly stipulated an applicable Guideline range, and clearly
foreclosed any attempt by the parties to argue for a § 3Bl.2 departure at sentencing. Given
Petitioner's assurance that he understood the agreement's terms in their entirety, it is fair to
conclude that Petitioner understood that he could not receive a § 3B 1.2 adjustment.
Despite this understanding, Petitioner still chose to plead guilty. There is thus no reasonable
probability that, but for counsel's failure to argue for a§ 3Bl.2 adjustment, Petitioner would not
have pleaded guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52,
Failure to file an appeal
Petitioner next argues that counsel deprived him of his constitutional right to appeal his
"substantively unreasonable" sentence. Pet. Mem. at 11. Specifically, Petitioner contends that after
he expressed a desire to appeal, Mr. Goldberg counseled against it in light of the fact that this
Court had already sentenced Petitioner to a term below his plea agreement's stipulated Guidelines
range. Id. at 10. After Petitioner received this advice, no notice of appeal was ever filed.
Counsel has a "constitutionally-imposed duty to consult with the defendant about an appeal
when there is reason to think either ( 1) that a rational defendant would want to appeal (for example,
because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in appealing." Roe v. Flores-Ortega, 528 U.S. at
480. Although the law of this Circuit mandates that counsel file a notice of appeal at defendant's
request even if counsel believes the appeal to be frivolous, Campusano v. United States, 442 F.3d
770 (2d Cir. 2006), counsel's failure to file an appeal violates the Sixth Amendment only when
counsel "ignor[ es] a defendant's explicit direction to [do so]." Fernandez v. United States, 146
F.3d 148, 149 (2d Cir. 1998) (emphasis added).
With regard to Mr. Goldberg's failure to file a notice of appeal, Petitioner has not satisfied
either prong of Strickland. First, he fails to show that counsel's representation fell below an
objective standard of reasonableness. He does not show that counsel ignored an explicit request to
seek an appeal, rather than having simply advised his client that he thought an appeal unwise.
Petitioner notes that Mr. Goldberg informed him that "it would be better not [to] appeal." Pet.
Mem. at 11. According to Petitioner, counsel's reasoning was based on the fact that Petitioner had
already been granted a downward variance pursuant to Amendment 782. /d. Petitioner then appears
to argue that this was "not a legitimate reason" for counsel's cautioning against an appeal. Id.
However, counsel's discouragement was reasonable given the totality of the circumstances,
considering that the terms of the Petitioner's plea agreement prohibited appeal of a sentence within
or below the Guideline range stated in the plea agreement (70-87 months). Plea Agr. at 4. Absent
any evidence that Mr. Goldberg ignored an explicit directive from Petitioner, counsel's action
constitutes a valid strategic choice within the bounds of what Strickland permits.
Second, Petitioner fails to establish actual prejudice. Because Petitioner had agreed not to
challenge his sentence on the ground for which he claims to have sought appeal, Mr. Goldberg's
actions did not affect the outcome of his proceeding.
In his allocution, he specifically
acknowledged an understanding of this waiver. Plea Tr. at 12. Petitioner received a sentence of 57
months, which was below the agreement's stipulated Guideline range. See Plea Agr. at 3. Petitioner
thus cannot show that he would have timely appealed but for his counsel's "error," as is required
Because Petitioner has failed to satisfy the two-pronged test set forth in Strickland with
respect to both of his claims, he has failed to prove any violation of his Sixth Amendment right to
effective assistance of counsel.
For the reasons stated above, the Petition to vacate is DENIED. The Court also denies
Petitioner's request for a hearing on these issues. A certificate of appealability will not issue
because Petitioner has failed to make a substantial showing of a denial of a constitutional right. 28
U.S. C. § 2253. The Clerk of Court is directed to close this case; all pending motions are moot.
Dated: New York, New York
Kimba M. Wood
United States District Judge
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