Velasquez v. United States of America

Filing 19

OPINION & ORDER: For the reasons stated above, the Petition is DENIED. As Petitioner 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(c)(2); Gray v. United States, 980 F.3d 264, 265 (2d Cir. 2020). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this judgment on the merits would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is respectfully directed to close the motion at Dkt. 442. (Signed by Judge Lorna G. Schofield on 6/5/2024) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
:
CARLOS JOSE ZAVALA VELASQUEZ,
:
Petitioner, :
:
-against:
:
UNITED STATES OF AMERICA,
:
Respondent. :
:
--------------------------------------------------------------X

20 Civ. 4328 (LGS)
15 Crim. 174-5 (LGS)
OPINION & ORDER

LORNA G. SCHOFIELD, District Judge:
Pro se Petitioner Carlos Jose Zavala Velasquez brings a petition (the “Petition”) for a writ
of habeas corpus pursuant to 28 U.S.C. § 2255. Petitioner moves to vacate, set aside or correct
his sentence due to the alleged ineffective assistance of counsel. For the following reasons, the
Petition is denied.
I.

BACKGROUND
Petitioner was a high-ranking member of the Honduran National Police (the “HNP”).

According to the Presentence Investigation Report prepared by the Probation Office, Petitioner
used his position in the HNP to facilitate two separate conspiracies to transport cocaine from
Honduras to the United States. First, between at least 2009 and 2012, Petitioner helped facilitate
drug trafficking activities of an organization headed by Hector Emilio Fernandez Rosa.
Petitioner provided the organization with information about Honduran law enforcement
operations that enabled the organization to plan its routes for transporting cocaine out of
Honduras. Second, in 2014, Petitioner participated in a drug trafficking operation for two
Mexican drug traffickers who were also confidential sources (the “Sources”) of the United States
Drug Enforcement Agency (the “DEA”).

On June 29, 2016, Petitioner was first charged in the United States in a superseding
indictment (the “Indictment”) along with five other HNP officers. Petitioner was charged in two
counts with conspiracy to engage in drug trafficking and a related firearms charge from around
2004 to 2014. Shortly thereafter, Petitioner met with DEA agents in Honduras and claimed that
his conduct underlying the Indictment was for investigative purposes at the direction of the HNP.
Petitioner also claimed that his earlier involvement with Fernandez Rosa’s organization was
likewise for the HNP. Petitioner ultimately self-surrendered to DEA agents in Honduras, signed
an agreement to travel voluntarily to the United States (the “Surrender Agreement”) and was
arraigned in the Southern District of New York.
On August 9, 2016, Howard R. Leader entered his appearance to represent Petitioner,
replacing prior appointed counsel. In April 2017, Mr. Leader provided the Government with
documents and an audio recording, and in May 2017, he met with the Government, all to
substantiate Petitioner’s claim that his conduct charged in the Indictment was a result of
directives from Honduran law enforcement. In June 2017, Petitioner and the Government
reached a plea agreement in which Petitioner agreed to plead to one count, charging him with
participating in a drug trafficking conspiracy to import cocaine into the United States from
around 2009 to 2012, i.e., the Fernandez Rosa conspiracy described above, and not the
conspiracy to aid the Sources. On June 15, 2017, Defendant waived indictment and pleaded
guilty before Magistrate Judge James Francis to a superseding information (the “Information”) as
specified in the plea agreement.
Pursuant to the plea agreement, the recommended sentencing range under the United
States Sentencing Guidelines (“Sentencing Guidelines” or “Guidelines”) was 210 to 262 months,
based on an offense level of 37 and criminal history category of I. The Probation Department in

2

the Presentence Investigation Report characterized Petitioner as coherent during the presentence
interview, even though Petitioner noted that he had been diagnosed with post-traumatic stress
disorder (“PTSD”) in Honduras. The Probation Department recommended a Guidelines sentence
of 210 months. The Government also requested a sentence within the stipulated Sentencing
Guidelines range.
Petitioner’s counsel requested a sentence of time served. In addressing the 18 U.S.C.
§ 3553(a) sentencing factors, Petitioner’s counsel drew attention to Petitioner’s personal history
and circumstances, including his significant contributions to the HNP, his mental health issues
stemming from PTSD and a lengthy narrative explaining that his involvement with the nolonger-charged 2014 Sources conspiracy was at the behest of Honduran law enforcement.
On June 26, 2018, Petitioner was sentenced to a below-Guidelines sentence of 144
months, followed by three years of supervised release. Before imposing sentence, the Court
reallocuted Petitioner, explaining that it was taking Petitioner’s guilty plea again “in an
abundance of caution . . . to satisfy myself that you are pleading guilty because you are guilty.”
Petitioner confirmed to the Court that his PTSD was not impacting his decision-making, that his
judgment was not impaired and that he was “okay to make the decision about pleading guilty.”
Petitioner was careful in his responses to the Court’s questions, which were based on the
Government’s allegations; he consulted with his counsel, clarified some questions and flatly
denied others. Petitioner ultimately admitted that he had agreed “to help in the distribution and
transportation of drugs intended for the United States” by providing “information about where
law enforcement had security checks,” and that Petitioner knew when he “provided this
information about the law enforcement checkpoints” that it was “wrong” and “against the law.”

3

Petitioner also admitted that the drugs involved were at least 450 kilograms of cocaine. The
Court accepted his plea.
In determining Petitioner’s sentence, the Court weighed Petitioner’s mental health
history, his service to the HNP, the alleged rampant corruption in Honduran law enforcement, his
pre-conviction prison conditions and his family situation against Petitioner’s “extremely serious
violation of the law.” The Court also noted that the sentence was based solely on Petitioner’s
participation in the Fernandez Rosa conspiracy, which was charged in the Information, and not
on any alleged participation in the Sources conspiracy, which was not.
Petitioner filed an appeal and then, on the advice of counsel, withdrew it. In the plea
agreement, Petitioner agreed that he would not appeal or collaterally challenge any sentence
within or below the stipulated Guidelines range, except for claims of ineffective assistance of
counsel. Petitioner filed a pro se § 2255 motion to vacate his sentence on the ground of
ineffective assistance of counsel. The next month, Petitioner filed an amended § 2255 motion.
These motions are addressed collectively.1
II.

LEGAL STANDARD
A.

§ 2255 Challenge and Hearing

A federally incarcerated individual may move to vacate, set aside or correct a sentence on
four grounds pursuant to 28 U.S.C. § 2255:
(1) that the sentence was imposed in violation of the Constitution or laws of the
United States, or (2) that the court was without jurisdiction to impose such
1

Petitioner raises arguments for the first time in his reply brief. Courts generally do not address
issues raised for the first time in a reply brief, even for pro se litigants. See McBride v. BIC
Consumer Prod. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009); Farmer v. United States, No. 12
Crim. 758, 2017 WL 3448014, at *3 (S.D.N.Y. Aug. 10, 2017) (collecting cases). Nevertheless,
because the Petition is denied and the Government had an opportunity to respond, these new
arguments are addressed below.
4

sentence, or (3) that the sentence was in excess of the maximum authorized by
law, or (4) is otherwise subject to collateral attack.
United States v. Hoskins, 905 F.3d 97, 102 (2d Cir. 2018) (quoting 28 U.S.C. § 2255(a)); accord
Zelaya-Romero v. United States, No. 15 Crim. 174, 2023 WL 3001871, at *2 (S.D.N.Y. Apr. 19,
2023).2 In § 2255 proceedings, a petitioner bears the burden of proof by a preponderance of the
evidence. See Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000); accord Amato v. United
States, 763 F. App’x 21, 24 (2d Cir. 2019) (summary order). “If it plainly appears from the
motion, any attached exhibits, and the record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion.” Rules Governing § 2255 Proceedings for
the United States District Courts, Rule 4(b).
“In ruling on a motion under § 2255, the district court is required to hold a hearing
‘unless the motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief.’” Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013) (quoting 28
U.S.C. § 2255(b)); accord Ortiz-Correa v. United States, No. 17 Crim. 737, 2023 WL 2504731,
at *3 (S.D.N.Y. Mar. 14, 2023). “To warrant a hearing, the motion must set forth specific facts
supported by competent evidence, raising detailed and controverted issues of fact that, if proved
at a hearing, would entitle [the petitioner] to relief.” Gonzalez, 722 F.3d at 131; accord OrtizCorrea, 2023 WL 2504731, at *3.
A pro se litigant’s papers must be construed liberally “to raise the strongest arguments
they suggest.” Green v. Dep’t of Educ. of N.Y.C., 16 F.4th 1070, 1074 (2d Cir. 2021).
Nonetheless, “pro se status does not exempt a party from compliance with relevant rules of
procedural and substantive law.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d
2

Unless otherwise indicated, in quoting cases, all internal quotation marks, footnotes and
citations are omitted, and all alterations are adopted.
5

Cir. 2006); accord McKenzie-Morris v. V.P. Recs. Retail Outlet, Inc., No. 22 Civ. 1138, 2023
WL 5211054, at *5 (S.D.N.Y. Aug. 13, 2023).
B.

Procedural Default

In challenging his sentence here under § 2255, Petitioner is limited to arguing ineffective
assistance of counsel (1) by his plea agreement which bars any challenge to his conviction or
sentence except for claims of ineffective assistance of counsel, provided he was sentenced within
or below the recommended Guidelines range, which he was, and (2) by the doctrine of
procedural default, which generally bars arguments not previously raised on appeal, except for
claims of ineffective assistance of counsel. See Harrington v. United States, 689 F.3d 124, 129
(2d Cir. 2012); accord Nina v. United States, 12 Crim. 322, 2022 WL 997024, at *2 (S.D.N.Y.
Mar. 31, 2022).
Petitioner implicitly argues that these limitations do not apply because the plea agreement
was procured improperly and because of exceptions to the procedural default rule (i.e., because
he received ineffective assistance about whether to appeal and his “actual innocence”). This
decision does not address these arguments because the substantive issues underlying Petitioner’s
claims of ineffective assistance -- i.e., his public authority defense, the Court’s jurisdiction and
his competency to plead guilty -- are fully addressed below in the context of Petitioner’s
ineffective assistance claims. In other words, none of Petitioner’s arguments are rejected
because of his plea agreement or his failure to raise them on appeal.
C.

Ineffective Assistance of Counsel

Petitioner alleges that his sentence was imposed in violation of the Constitution because
of the ineffective assistance of his defense counsel. The Sixth Amendment right to counsel
guarantees “the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S.

6

668, 685-86 (1984) (emphasis added). A claim of ineffective assistance of counsel may be
raised for the first time in a collateral proceeding under § 2255 “whether or not the petitioner
could have raised the claim on direct appeal.” Harrington, 689 F.3d at 129.
“There is a strong presumption that counsel’s conduct fell within the wide range of
professional assistance.” Weingarten v. United States, 865 F.3d 48, 52 (2d Cir. 2017). “To
overcome that presumption, a petitioner must establish two elements. First, the petitioner must
show that counsel’s performance was deficient by demonstrating that the representation ‘fell
below an objective standard of reasonableness.’” Id. (quoting Strickland, 466 U.S. at 688). The
first prong of Strickland sets a “high bar” for defendants because defense counsel’s strategic and
adequately informed decisions are given a “presumption of effective performance.” United
States v. Nolan, 956 F.3d 71, 79 (2d Cir. 2020). To rebut this presumption, Petitioner must show
that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687.
Second, the petitioner must show that counsel’s deficient representation was prejudicial
to the defense by establishing that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Reasonable probability means “a probability sufficient to undermine confidence in the outcome.”
Id.
III.

DISCUSSION
The Petition under 28 U.S.C. § 2255 to vacate, set aside or correct Petitioner’s criminal

sentence is brought on the basis of ineffective assistance of counsel. Petitioner argues that
counsel’s performance was constitutionally deficient because of the failure to: (1) pursue his
public authority defense, (2) argue that the Court lacked jurisdiction over Petitioner’s case and

7

(3) request a competency hearing before sentencing. As to each argument, the Petition fails to
satisfy the Strickland test. The Petition is therefore denied.
A.

Public Authority Defense

Petitioner argues that the assistance of defense counsel was constitutionally deficient
regarding the public authority defense because counsel advised Petitioner to plead guilty even
though his conduct was sanctioned by the HNP. The so-called “public authority defense,” as
relevant here, “depends on the proposition that the defendant’s actions, although ostensibly in
violation of some statute, were in fact lawful because he was authorized by the government to do
those acts.” United States v. Giffen, 473 F.3d 30, 39 (2d Cir. 2006); accord United States v.
Thomas, 214 F. Supp. 3d 187, 192 (E.D.N.Y. 2016). Specifically, Petitioner alleges that defense
counsel was deficient by failing to investigate and call witnesses to support his defense and by
advising Petitioner to accept a plea agreement based on erroneous legal advice that he could be
criminally liable for actions sanctioned by the HNP. These arguments fail both prongs of the
Strickland test.
1. Counsel’s Investigation of the Defense Did Not Fall Below an
Objective Standard of Reasonableness.
Defense counsel’s investigation of Petitioner’s public authority defense did not fall below
an objective standard of reasonableness. The duty to investigate requires counsel “to make
reasonable investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Strickland, 466 U.S. at 691; accord Weingarten v. United States, 700 F. App’x
43, 45 (2d Cir. 2017) (summary order). “[A]s a general matter, when there is reason to believe
that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to
pursue those investigations may not later be challenged as unreasonable.” Greiner v. Wells, 417
F.3d 305, 321 (2d Cir. 2005); accord United States v. Cureton, No. 18-3789-CR, 2022 WL
8

17726842, at *3 (2d Cir. Dec. 16, 2022) (summary order). “Post-hoc complaints about the
strategy or tactics employed by trial counsel, or complaints that trial counsel did not conduct a
sufficiently vigorous pre-trial investigation, are typically found to be insufficient to satisfy
Strickland.” Crews v. Miller, No. 19 Civ. 2091, 2019 WL 4861421, at *16 (E.D.N.Y. Sept. 30,
2019).
Counsel interviewed and obtained evidence from witnesses about an alleged public
authority defense. On April 5, 2017, counsel produced (1) an affidavit from a Honduran
attorney, (2) an audio recording of a meeting among Petitioner, that attorney and Commisario
Rigoberto Osguera Mass of the HNP (a superior, but not Petitioner’s supervisor at the time, to
whom he reported his recruitment by co-conspirators) and (3) text messages between Petitioner
and Osguera Mass. Counsel then negotiated a plea agreement that narrowed the charges against
Petitioner to the Fernandez Rosa conspiracy and the period 2009 to 2012. The Information did
not include the agreement and meetings in 2014 to transport cocaine for the two DEA Sources, in
which Petitioner asserted he had participated under color of law.
Petitioner alleges that counsel failed to investigate four witness affidavits supporting
Petitioner’s public authority claims. These affidavits are legally irrelevant to the challenge to
Petitioner’s sentence as they were sworn to in July and August 2018, after Petitioner was
sentenced in June 2018. The affidavits are also factually irrelevant to Petitioner’s public
authority defense. None of the affidavits speak to that defense. Instead, they suggest that
Petitioner lacked any involvement with the Fernandez Rosa operation whatsoever, not that he
was involved but on behalf of Honduran law enforcement. Even in that regard, defense counsel
made a reasonable strategic decision not to follow up on the affidavits because they merely
assert, second-hand, that Fernandez Rosa and his accomplice, Diaz Morales, did not know

9

Petitioner. A defendant need not know all or any particular members of a conspiracy in order to
be guilty as a co-conspirator. See, e.g., United States v. Khalupsky, 5 F.4th 279, 288 (2d Cir.
2021) (two individuals “need not have known one another to be co-conspirators”). Petitioner
successfully allocuted to conspiracy to commit drug trafficking when he confirmed at his
sentencing that he “c[a]me to an agreement with certain people, regardless of whether it was with
Mr. Fernandez Rosa, to help in the distribution and transportation of drugs intended for the
United States.”
2. Claim that Counsel Did Not Explain the Defense is Contradicted by
the Record.
Petitioner argues that his counsel was deficient by advising Petitioner to accept a plea
agreement based on erroneous legal advice that he could be criminally liable for actions
sanctioned by the HNP. The effectiveness of a counsel’s plea-bargaining guidance is evaluated
under the “standard of attorney competence” outlined in Strickland. See Hill v. Lockhart, 474
U.S. 52, 58 (1985). For any plea offer, “counsel must communicate to the defendant the terms of
the plea offer and should usually inform the defendant of the strengths and weaknesses of the
case against him, as well as the alternative sentences to which he will most likely be exposed.”
Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000); accord Maetus v. United States, No. 18
Civ. 638, 2020 WL 1046624, at *7 (S.D.N.Y. Mar. 4, 2020).
Petitioner’s argument -- in substance, that Petitioner was unaware of, and counsel did not
explain, prior to Petitioner’s guilty plea the availability of the defense -- is rejected because of
overwhelming evidence to the contrary in the record. After Petitioner surrendered, defense
counsel repeatedly asserted that Petitioner had a public authority defense with respect to the 2014
operation for the Sources. Defense counsel provided evidentiary material to the Government that
counsel and Petitioner had gathered to support the public authority defense. Counsel then
10

proffered that defense to negotiate a plea agreement, which Petitioner signed and endorsed at his
change-of-plea hearing, and which eliminated the 2014 operation from the stipulated criminal
conduct. Counsel then spent seven pages of his sentencing submission discussing Petitioner’s
“color of authority defense” to the 2014 conduct before Petitioner was reallocuted and his guilty
plea was accepted.
To the extent that Petitioner is arguing that counsel was deficient because he was
successful in persuading the Government of Petitioner’s public authority defense only as to the
2014 Sources conspiracy but not the earlier Fernandez Rosa conspiracy, that argument is without
merit. First, one might conclude that counsel’s ability to eliminate even the 2014 conspiracy
from the charges was an achievement. While Petitioner’s sentencing submission asserted that
the public authority defense was the reason for the Government’s narrowing of the charges, the
Government appears to challenge the credibility of that defense even as to the 2014 conspiracy,
stating that “while the defendant may have reported that he wanted to participate in the meeting
with the Sources in an undercover capacity in 2014, he did virtually nothing that an honest law
enforcement officer should do . . . .” Many factors can influence the Government’s pleabargaining decisions. Second, even assuming Petitioner’s counsel made “miscalculations
regarding the Government’s willingness to negotiate a more favorable deal,” those represent, “at
best, strategic errors that are virtually unchallengeable.” See Lake v. United States, 465 F. App’x
33, 35 (2d Cir. 2012) (summary order); accord United States v. Wilson, 146 F. Supp. 3d 472,
480-81 (E.D.N.Y. 2015).
3. No Actual Prejudice Because No Reasonable Probability the Result
Would Have Been Different.
Even if the record supported Petitioner’s argument that defense counsel’s conduct was
objectively unreasonable, he cannot show the second prong of the Strickland test, “a reasonable
11

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694.
In guilty plea cases, the defendant 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.” Kovacs v. United States, 744 F.3d 44, 51 (2d Cir. 2014); accord Guzman v. United States,
363 F. Supp. 3d 396, 399 (S.D.N.Y. 2019). This assessment “will depend on the likelihood that
discovery of the evidence would have led counsel to change his recommendation as to the plea,”
which will in turn “depend in large part on a prediction whether the evidence likely would have
changed the outcome of a trial.” Hill, 474 U.S. at 59. “[W]here the alleged error of counsel is a
failure to advise the defendant of a potential affirmative defense to the crime charged,” the
prejudice inquiry will depend “on whether the affirmative defense likely would have succeeded
at trial.” Id.
It is complete conjecture that Petitioner somehow would have prevailed on his public
authority defense at trial or in plea discussions if counsel had pursued the defense differently.
This is not a case where counsel failed to present, for example, known mitigating evidence. See,
e.g., Williams v. Taylor, 529 U.S. 362, 395-97 (2000) (defense counsel’s failure to produce
mitigating evidence at sentencing). Petitioner has proffered no evidence that creates a
“reasonable probability” that the public authority defense would have prevailed to defeat the
Fernandez Rosa conspiracy charge. The evidence that Petitioner has produced in connection
with that charge, including the four affidavits discussed above, does not support a public
authority defense.
Only Petitioner’s self-serving assertions of his working under “deep cover” support such
a defense. To show prejudice, Petitioner “may not rely solely on his own, self-serving

12

statement.” See United States v. Bent, 654 F. App’x 11, 13 (2d Cir. 2016) (summary order);
accord United States v. Key, No. 12 Crim. 712-1, 2019 WL 2314693, at *3 (S.D.N.Y. May 31,
2019). Even Petitioner’s assertions that he was acting under color of authority are contradicted
by his own sworn statements at sentencing that he knew at the time that assisting the drug
traffickers by providing them with law enforcement information was “against the law” and
“wrong.” Petitioner personally addressed the Court in his own letter prior to sentencing in which
he stated that his conduct did not reflect “the principles that my parents taught me and also
[were] not in accordance with the professional ethics and philosophy of the National Police.”
Petitioner’s statements acknowledging his wrongdoing “carry a strong presumption of verity,”
and his “subsequent presentation of conclusory allegations” are subject to summary dismissal
because they are unsupported by any specifics. See Gonzalez, 722 F.3d at 131; accord Ingram v.
United States, No. 14 Crim. 760, 2020 WL 6323822, at *4 (S.D.N.Y. Oct. 28, 2020).
Petitioner’s § 2255 motion does not “automatically entitle” him to a hearing, particularly
when his assertions of ineffective assistance of counsel in presenting his public authority defense
-- inadequate investigation, failure to advise and prejudice -- are “vague, conclusory, or palpably
incredible.” See Gonzalez, 722 F.3d at 130; accord Mercedes v. United States, No. 17 Crim.
419, 2024 WL 967191, at *2 (S.D.N.Y. Mar. 5, 2024).
B.

Jurisdictional Arguments

Petitioner asserts ineffective assistance because defense counsel failed to contest the
Court’s jurisdiction over his case. Petitioner contends that the Court lacked jurisdiction because
of (1) his public authority defense, (2) the circumstances of his surrender to the United States, (3)
the original indictment, which did not name Petitioner’s co-conspirators, and (4) the Information,
which was the basis for Petitioner’s guilty plea rather than an indictment. Counsel’s decision not

13

to challenge the Court’s jurisdiction on these grounds was reasonable as these arguments are
legally incorrect. Given the legal nature of these arguments, and the lack of any factual dispute,
no hearing is necessary.
Even assuming that Petitioner plausibly could have asserted a public authority defense,
that would not deprive the Court of jurisdiction. The defense is not jurisdictional but instead is
“an affirmative defense that is tried to the jury.” See United States v. Doe, 63 F.3d 121, 125 (2d
Cir. 1995); accord Thomas, 214 F. Supp. 3d at 192 (“The defendant may present a public
authority defense to the jury . . . .”).
The events surrounding Petitioner’s surrender to the United States also did not affect the
Court’s jurisdiction. The Surrender Agreement states that Petitioner “decided -- voluntarily and
without coercion or threats having been made to me by anyone -- to travel to the United States so
that I can surrender voluntarily in the Southern District of New York and face the charges
pending against me.” No law (including the various treaties cited in Petitioner’s papers) supports
the proposition that the Surrender Agreement deprived the Court of jurisdiction. As to
Petitioner’s extradition arguments, the Surrender Agreement expressly waives “any right to
extradition proceedings” and states that Petitioner “will travel to the United States voluntarily . . .
without extradition.” Even if Petitioner’s surrender was an extradition, he would not have
standing to assert the violation of any treaty, including an extradition treaty. See Fed. Republic
of Nigeria v. VR Advisory Servs., Ltd., 27 F.4th 136, 151 (2d Cir. 2022) (“Ordinarily, absent
protest or objection by the offended sovereign, an individual has no standing to raise the
violation of international law, including treaties . . . unless the treaty creates privately
enforceable rights.”); United States v. Garavito-Garcia, 827 F.3d 242, 246-47 (2d Cir. 2016)

14

(concerns about lack of standing to raise violation of international law “apply equally when a
criminal defendant objects . . . based on the interpretation of an extradition treaty”).
Petitioner’s reply memorandum takes issue with the translation of the Surrender
Agreement, which he signed and later initialed. The agreement states, “This Waiver form was
read to me in Spanish before I signed it.” Petitioner’s argument is that the Court lacks
jurisdiction because the Surrender Agreement “fails to qualify by whom [it] was allegedly
interpreted.” Petitioner never asserts that the document was not translated or was not correctly
translated. Instead, he asserts that the following language in the Court Interpreters Act requires
that the Surrender Agreement identify the translator and state his or her qualifications: “United
States Courts shall establish a program to facilitate the use of certified and otherwise qualified
interpreters in judicial proceedings instituted by the United States.” 28 U.S.C. § 1827(a). This
language by its terms does not apply because the Surrender Agreement was not signed in the
context of a “judicial proceeding.” See 28 U.S.C. § 1827(j) (“The term ‘judicial proceedings
instituted by the United States’ as used in this section refers to all proceedings, whether criminal
or civil, including pretrial and grand jury proceedings . . . conducted in, or pursuant to the lawful
authority and jurisdiction of a United States district court.”). Even if the statute did apply,
nothing about it suggests that non-compliance would deprive a court of jurisdiction in a later
judicial proceeding. Importantly, Petitioner’s argument is not that the Surrender Agreement was
improperly translated or that it was not translated at all. His real complaint is that, “[u]ltimately,
this agreement was never voluntary because the link between what was read to Zavala and what
he heard is missing.” This is not a jurisdictional infirmity.
Petitioner similarly raises no jurisdictional bar in asserting that the Information was
defective because it charges Petitioner with a conspiracy but does not charge or name any co-

15

defendants. A charging instrument is not required to name a defendant’s co-conspirators, much
less charge them. See Corbett v. United States, No. 15 Civ. 1461, 2019 WL 4758340, at *8 n.12
(D. Conn. Sept. 30, 2019) (“[T]here is no requirement that the indictment name coconspirators.”).
Nor was counsel deficient by allowing Petitioner to plead guilty to an information rather
than an indictment. Petitioner agreed to the Information in his plea agreement. In open court at
his change-of-plea hearing, Petitioner was informed of his right to be indicted by a grand jury,
signed a waiver of indictment agreeing to be charged in an information and orally confirmed his
waiver. The waiver is therefore effective and enforceable. See United States v. Bastian, 770
F.3d 212, 218 (2d Cir. 2014); accord Palmer v. United States, No. 3 Crim. 132S, 2018 WL
3633249, at *3 (W.D.N.Y. July 31, 2018). Petitioner has not suggested or shown any prejudice
as a result of proceeding by information rather than indictment. The dismissal of the Indictment,
superseded by the Information, in any event had no impact on jurisdiction.
C.

Competency Hearing

Defense counsel’s decision to forgo requesting a competency hearing was not deficient,
given the evidence of Petitioner’s competence to plead guilty. A district court is required to hold
a competency hearing prior to sentencing “if there is reasonable cause to believe that the
defendant may presently be suffering from a mental disease or defect rendering him mentally
incompetent to the extent that he is unable to understand the nature and consequences of the
proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(a). “The
standard for determining whether a defendant is competent to plead guilty is well settled: the
defendant must have (1) sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding and (2) a rational as well as factual understanding of the

16

proceedings against him.” United States v. Geraldo, No. 11 Crim. 1032-68, 2021 WL 230282, at
*6 (S.D.N.Y. Jan. 21, 2021). Relevant considerations in making this determination are
psychiatric reports and the court’s own assessment of “the defendant’s demeanor during the
proceeding.” See United States v. DiMartino, 949 F.3d 67, 71 (2d Cir. 2020).
Petitioner’s words and demeanor at sentencing and the supporting documents show that
Petitioner was competent to plead guilty. Defense counsel submitted documents with his
sentencing memorandum outlining Petitioner’s mental health issues and maintained that such
issues merited leniency in the sentence. The supporting documents included a psychiatric
evaluation of Petitioner conducted by Dr. Stephen Price roughly two months prior to sentencing.
Dr. Price’s report concluded that while Petitioner exhibited normal orientation during the
evaluation, he was still experiencing some symptoms of PTSD.
At his change-of-plea hearing before Judge Francis, Petitioner denied being under the
care of a psychiatrist or taking medication, alcohol or narcotics in the last forty-eight hours and
agreed that he was feeling “all right” -- “That’s correct. I feel fine.” At his sentencing hearing
before the District Judge, when asked how his PTSD might be impacting his decision-making at
sentencing, Petitioner stated, “In terms of my spiritual well-being, I have been in touch with my
family to be able to count with their support and also the support of my attorney. So I am okay.”
After Petitioner was reallocuted and just before accepting his plea, the Court made the following
findings: “[O]n the basis of my review of the transcript of your guilty plea before Judge Francis,
your responses to my questions just now, my observations of your demeanor, I am satisfied that
you understand your rights and that you’re waiving them knowingly and voluntarily, with an

17

understanding of the consequences of your plea . . . [and] that your plea is knowing, and
voluntary . . . .”
Nothing in the record suggests that Petitioner was unable to consult with his counsel or
understand the nature of the proceedings or their consequences. Accordingly, nothing rebuts the
presumption that counsel’s decision to forgo a competency hearing “fell within the wide range of
professional assistance.” See Weingarten, 865 F.3d at 52. Similarly, the record does not support
a finding of prejudice -- that if a competency hearing had been held the outcome of these
proceedings would have been different. In the absence of evidence raising a genuine factual
dispute, no hearing is necessary.
Petitioner’s remaining allegations of deficiency do not rebut the presumption that
counsel’s performance was reasonable. See Gonzalez, 722 F.3d at 130. Accordingly, Petitioner
cannot establish deficient performance.
IV.

CONCLUSION
For the reasons stated above, the Petition is DENIED.
As Petitioner 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(c)(2); Gray v. United States, 980
F.3d 264, 265 (2d Cir. 2020). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an
appeal from this judgment on the merits would not be taken in good faith, and therefore in forma
pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S.
438, 444-45 (1962).
The Clerk of the Court is respectfully directed to close the motion at Dkt. 442.
Dated: June 5, 2024
New York, New York

18