Abreu v. United States of America

Filing 12

OPINION AND ORDER: Abreu's November 29, 2021 petition for a writ of habeas corpus is denied to the extent Abreu asserts that his attorney told him that he had no right to appeal. A scheduling order permitting further briefing accompanies this Opinion. (Signed by Judge Denise L. Cote on 8/29/2024) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------- X
:
EDWARD ABREU,
:
:
Petitioner, :
:
-v:
:
UNITED STATES OF AMERICA,
:
:
Respondent. :
:
------------------------------------- X

20cr52-2 (DLC)
21cv10122 (DLC)
OPINION AND ORDER

APPEARANCES:
For petitioner Edward Abreu:
Andrew H. Freifeld
Andrew Freifeld, Esq.
P.O. Box 3196
New York, NY 10008
For the United States of America:
Thomas John Wright
U.S. Attorney’s Office for the Southern District of New York
One Saint Andrew’s Plaza
New York, NY 10007
DENISE COTE, District Judge:
Petitioner Edward Abreu (“Abreu”) asserted in his petition
for a writ of habeas corpus pursuant to Title 28, United States
Code, Section 2255, that his trial counsel advised him that he
“could not file a[n] appeal.”

On October 12, 2023, the Second

Circuit Court of Appeals vacated this Court’s December 13, 2021
Opinion and Order denying the petition and remanded the case for
proceedings consistent with its order.

As explained below, the

Government has shown by clear and convincing evidence that

Abreu’s trial counsel did not advise him that he could not file
an appeal.
Background
The record on remand establishes the following.
February 15, 2020, Abreu was arrested.

On

He retained Cohen,

Frankel & Ruggiero, LLP to represent him.

Mark Cohen and his

partner Peter Frankel represented Abreu thereafter through
sentencing.

During that representation, Abreu never expressed

to either attorney that he was anything other than completely
satisfied with their work on his behalf.
When the two attorneys met with Abreu at his initial
presentment, Abreu told them that he knew he was in grave legal
danger, that he would be satisfied with a sentence of ten years’
imprisonment, and that they should try to negotiate such a
sentence or a better sentence.
On March 5, Abreu was indicted on a single count of
participating in a conspiracy to distribute five kilograms or
more of cocaine and 280 grams or more of cocaine base, otherwise
known as crack.

The charge carried a mandatory minimum term of

imprisonment of ten years pursuant to 21 U.S.C. §§ 841(b)(1)(A)
and 846, among other penalties.

At the time of the arraignment

on March 12, Abreu and his attorneys had a conversation about
his sentencing goals similar to their earlier conversation.
2

At a conference on March 26, a trial date of November 2 was
set.

In their conversations over the ensuing months, defense

counsel reviewed discovery materials with Abreu, who was
incarcerated in the MCC.

Abreu agreed with their assessment

that he would likely be convicted at trial and was ineligible
for relief from the statutory mandatory minimum sentence of ten
years’ imprisonment because of his criminal record.

He agreed

as well with their assessment that his ability to receive a
lesser sentence would be dictated by his decision to cooperate
with the Government or by defense counsel’s ability to convince
the Government to accept a plea to a lesser included offense.
Abreu declined to cooperate with the Government.

Defense

counsel succeeded, however, in negotiating a plea to a lesser
included offense that carried a mandatory minimum sentence of
five years’ imprisonment.
Both defense counsel met with Abreu on November 9, 2020 and
thoroughly reviewed a proposed plea agreement (“Agreement”) with
the Government.
waiver.

That review included a review of its appellate

The Agreement was premised on Abreu pleading guilty to

a lesser included drug conspiracy charge, and Abreu was
appreciative of his attorneys’ success in their negotiations
with the Government.
Defense counsel met with Abreu again on January 12, March
12 and 22, and April 5, 2021, to discuss a Curcio issue and to
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ensure that Abreu was familiar with all the terms of the
Agreement and prepared for the anticipated Rule 11 plea
allocution.

In those discussions, his counsel explained to

Abreu that he would be agreeing that his Guidelines range was 97
to 121 months’ imprisonment, and that, so long as the Court did
not impose a higher sentence, he would be waiving his right to
challenge his term of imprisonment, the amount of a fine, and
the “supervised release term, etc.”

His attorneys advised him

of his “residual” appellate rights, specifically his right to
appeal his sentence based upon any post-sentencing decision by
him that defense counsel’s work on his behalf had been
ineffective.
A Curcio hearing was held on March 24.

During the hearing,

Abreu expressed his desire to keep his attorneys.

He explained

that he trusted them.
Pursuant to the Agreement, Abreu entered a plea of guilty
on April 14, 2021 to a lesser included offense during a
videoconference. 1

The lesser included offense was participation

in a conspiracy to distribute 500 grams or more of cocaine in
violation of 21 U.S.C. § 841(b)(1)(B).

This charge carried a

mandatory minimum term of imprisonment of five years, among

Because of the COVID-19 pandemic, Abreu had been given the
option to come to Court to enter his plea or to proceed through
a videoconference. Abreu chose the latter option.
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1

other penalties.

Abreu acknowledged under oath that he had

conspired with others to sell 500 grams or more of cocaine, that
he expected to make money from his role in the conspiracy, and
that he knew at the time that his conduct violated the law.
Abreu also stated he understood that his sentence would be
determined based on a consideration of all relevant materials
and the factors set forth in 28 U.S.C. § 3553(a).

And he said

he understood that his sentence would be binding even if it was
different than the calculation included in the Agreement.
In his allocution, Abreu confirmed that he had read the
Agreement with care, that he had discussed it with his attorney,
that he had authorized his attorney to sign the Agreement on his
behalf, and that he believed he had a good understanding of the
Agreement’s terms.

In the Agreement, the parties stipulated

that the offense level was 29 and that Abreu’s criminal history
category was II, resulting in a Sentencing Guidelines range of
97 to 121 months’ imprisonment.

In a waiver of certain

appellate rights, Abreu agreed not to “file a direct appeal; nor
bring a collateral challenge, including but not limited to an
application under Title 28, United States Code, Section 2255
and/or Section 2241, of any sentence within or below the
Stipulated Guidelines Range of 97 to 121 months’ imprisonment.”
Abreu further agreed “not to appeal or bring a collateral
challenge of any term of supervised release that is less than or
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equal to the statutory maximum.”

The Agreement expressly stated

that “nothing in this paragraph shall be construed to be a
waiver of whatever rights the defendant may have to assert
claims of ineffective assistance of counsel, whether on direct
appeal, collateral review, or otherwise.

Rather, it is

expressly agreed that the defendant reserves those rights.”
Abreu was present in the courtroom and sentenced on July
30, 2021.

Abreu was sentenced principally to 120 months’

imprisonment to be followed by a term of supervised release of
four years with several conditions.

At the end of his

sentencing, the Court advised Abreu of his right to appeal,
noting that he could apply for leave to appeal in forma pauperis
and that any notice of appeal must be filed within 14 days of
the judgment of conviction.

Abreu asserts that this statement

did not register with him because he was so distressed with the
length of the sentence he had just received.
Defense counsel asserts that after the sentencing he
reminded Abreu of his right to assert an ineffective assistance
of counsel claim.

Abreu disputes that.

It is undisputed that Abreu did not instruct his attorneys
to file a notice of appeal and that he did not file an appeal.
At no time did Abreu advise his attorneys that they had been
ineffective.
6

On November 29, 2021, Abreu, proceeding pro se, filed a
petition for a writ of habeas corpus pursuant to § 2255.

In his

petition, Abreu asserts that his counsel provided ineffective
assistance by advising him that he could not file an appeal and
because his attorneys did not challenge this Court’s
jurisdiction in this case.

In an Opinion and Order of December

13, Abreu’s petition was denied.

Abreu v. United States,

21cv10122 (DLC), 2021 WL 5909634 (S.D.N.Y. Dec. 13,
2021)(“December 2021 Opinion”).

Abreu appealed the December

2021 Opinion.
On October 12, 2023, the Second Circuit Court of Appeals
vacated the December 2021 Opinion.

It held that, where a

defendant does not ask the attorney to file an appeal, then the
question turns on whether the lawyer violated the duty to
consult with the client.

Where an attorney mistakenly advises

the defendant that there is no right to appeal, then habeas
relief is warranted unless the Government shows by clear and
convincing evidence that the defendant had independent knowledge
of his right to appeal and elected not to do so, or in fact did
appeal.

Stated differently, where a defendant receives

erroneous information about the right to appeal, the defendant
is presumed to have shown a deficiency and prejudice, and the
burden shifts to the Government to show by clear and convincing
evidence that the defendant had independent knowledge of the
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right to appeal.

Abreu’s knowledge of his Agreement, and its

description of his appeal rights, along with the Court’s notice
to Abreu at the conclusion of his sentence of his right to
appeal did “not conclusively establish that Abreu is entitled to
no relief.”

Abreu v. United States, No. 22-13, 2023 WL 6632951,

at *3 (2d Cir. Oct. 12, 2023).
The mandate issued on December 4, 2023.

On January 5, the

Court appointed new counsel for the petitioner.

On April 4,

2024, the petitioner’s former counsel provided an affidavit to
the Government.
Abreu’s petition.

On May 30, the Government filed its response to
On July 1, Abreu filed his reply.

On July

29, the Government was ordered to file a response to Abreu’s
reply, and it did so on August 16.
Discussion
In his petition for relief under § 2255, Abreu alleges that
his counsel provided him ineffective assistance.

Claims of

ineffective assistance of counsel are assessed under the wellestablished standard set forth by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984).

To establish

ineffective assistance of counsel, a defendant “must show that
the counsel's performance was (a) ‘deficient’ according to ‘an
objective standard of reasonableness,’ and (b) ‘prejudicial,’
meaning ‘a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
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been different.’”

Thomas v. United States, 93 F.4th 62, 65 (2d

Cir. 2024) (quoting Strickland, 466 U.S. at 687-88, 692-94).
“Courts reviewing ineffective assistance of counsel claims
are highly deferential, and must strongly presume that counsel
made all significant decisions in the exercise of reasonable
professional judgment.”

United States v. Rosemond, 958 F.3d 111,

121 (2d Cir. 2020) (citation omitted).

But a defendant “is

presumed to have shown deficiency and prejudice under
Strickland” when his attorney mistakenly advises him that there
is no right to appeal.

Thomas, 93 F.4th at 66.

In such a case,

the burden “shifts to the government to show by clear and
convincing evidence that the defendant actually appealed or had
independent knowledge of his right to appeal and elected not to
do so.”

Id. (citation omitted).

When a notice of appeal is not filed and a defendant has
not explicitly told his attorney not to file a notice of appeal,
the question becomes whether counsel consulted with the
defendant about an appeal.
478 (2000).

Roe v. Flores-Ortega, 528 U.S. 470,

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.”
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Id. at 480.

Whether the conviction follows a plea of guilty is

“highly relevant” to this inquiry.

Id.

When the defendant

pleads guilty, “the court must consider such factors as whether
the defendant received the sentence bargained for as part of the
plea and whether the plea expressly reserved or waived some or
all appeal rights.”

Id.

The question is whether counsel’s

choices “were reasonable.”

Id. at 181.

To show prejudice from

any failure to consult, a defendant “must demonstrate that there
is a reasonable probability that, but for counsel’s deficient
failure to consult with him about an appeal, he would have
timely appealed.”

Id. at 484.

Evidence that there were

nonfrivolous grounds for appeal or that the defendant “promptly”
expressed a desire to appeal “will often be highly relevant in
making this determination.”

Id. at 485; see Thomas, 93 F.4th at

65-66; Galviz Zapata v. United States, 431 F.3d 395, 397 (2d
Cir. 2005).
Abreu asserts in his petition that his attorneys advised
him that he “could not appeal.”

In his May 12, 2024 affidavit, 2

Abreu does not deny that his counsel told him that he had the
right to appeal an ineffective assistance of counsel claim, even
though he does not remember receiving such advice.

Despite this

Abreu’s May 12, 2024 affidavit was submitted in response to his
prior counsel’s affidavit, which accompanied the Government’s
opposition to his petition.
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2

acknowledgment, Abreu continues to assert that he didn’t
instruct his attorney to file an appeal “because they told me
that under the terms of the Plea Agreement, I had no right to
appeal.”
Abreu retained and was represented following his arrest and
through sentencing by experienced, highly regarded, and well
qualified counsel.

The Government has shown by clear and

convincing evidence that they did not tell him that he had no
right to appeal.

His Agreement advised him that he had the

right to bring ineffective assistance of counsel claims in an
appeal, his attorneys represent that they repeatedly advised him
of that reserved right, and he does not deny that they did so.
In fact Abreu asserted ineffective assistance of counsel claims
in his timely-filed petition.

Abreu explains that months after

his sentencing he came to believe that his attorneys had been
ineffective.

The Government has carried its burden of showing

by clear and convincing evidence that his assertion that his
counsel told him that he had no right to appeal is not credible.
Given the record developed on remand, no hearing is required to
explore this issue further. 3
While Section 2255 provides for a hearing to “determine the
issues and make findings of fact” raised by a petition, 28
U.S.C. § 2255(b), a “district court has discretion to determine
if a testimonial hearing will be conducted.” Thomas, 93 F.4th
at 66 (citation omitted). A court may discharge its obligation
to inquire into a defendant’s claim that he was denied his right
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3

In his May 12 affidavit Abreu does not dispute that his
attorneys may have told him that he had the right to bring an
appeal asserting an ineffective assistance of counsel claim.

He

simply says that he doesn’t recall his attorney saying that and
that in any event he didn’t come to believe that his attorneys
had been ineffective until some months had passed.
significant admission by Abreu.

This is a

Advice by his counsel that he

retained the right to appeal ineffective assistance of counsel
claims despite the waiver of certain appeal rights in the
Agreement is far different than his assertion in his petition
that his counsel told him he had no right to appeal.
Abreu’s admission that his attorneys may have told him of
his right to bring ineffective assistance of counsel claims in
an appeal is at odds, however, with his continued assertion in
that same May 12 affidavit that his attorneys told him that
“under the terms of the Plea Agreement, I had no right to
appeal.”

Read in context, this must be understood as an

accurate description of the Agreement’s waiver.

Abreu

emphasizes that he was distressed by the length of the sentence
he received, that is, 120 months’ imprisonment.

But his

attorneys had advised him and he understood that by entering the

to appeal “by accepting affidavits from the defendant’s prior
counsel, including those filed as part of the government’s
opposition papers.” Id.
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Agreement he could not appeal that sentence because it did not
exceed the Agreement’s stipulated Sentencing Guidelines range.
That advice was accurate and Abreu’s current counsel does not
suggest otherwise.
This Court finds that Abreu was not told by his attorneys
that he could not appeal.

Abreu was advised in his Agreement,

by his counsel, and by this Court that he had the right to
appeal.
The submission by recently-appointed counsel for Abreu may
be read, however, to raise a different issue.

Abreu argues that

his attorneys’ advice regarding his right to appeal was not
complete.

He argues that they should have advised Abreu that he

retained the right to appeal more than ineffective assistance of
counsel claims.
Abreu’s current counsel identifies two additional issues
for which Abreu retained the right to appeal.

“An appeal waiver

included in a plea agreement does not bar challenges to the
process leading to the plea.”
111, 118 (2d Cir. 2018).

United States v. Lloyd, 901 F.3d

Moreover, the appeal waiver in the

Agreement did not include a waiver of the right to bring an
appeal addressed to the conditions of supervised release imposed
as part of the sentence.

Conditions of supervised release have

become a recent focus of Second Circuit jurisprudence, see,
e.g., United States v. Oliveras, 96 F.4th 298, 313-16 (2d Cir.
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2024); United States v. Sims, 92 F.4th 115, 126-29 (2d Cir.
2024), and the Government’s standard plea agreement now includes
waiver language that encompasses those conditions.

Its recent

agreements include the following, which was absent from Abreu’s
Agreement: “The defendant further agrees not to appeal or bring
a collateral challenge of any term of supervised release that is
less than or equal to the statutory maximum or any condition of
supervised release imposed by the Court for which he had
notice . . . .” (emphasis added).
While district courts must on remand proceed in accordance
with the appellate court’s mandate, the Second Circuit has
explained that when its “mandate leaves issues open, the lower
court may dispose of the case on grounds not dealt with by the
remanding appellate court.”

Callahan v. County of Suffolk, 96

F.4th 362, 367 (2d Cir. 2024) (citation omitted).

The Court of

Appeals remanded this case for this Court to inquire into
whether Abreu was independently aware of his right to appeal and
chose not to exercise that right.

Abreu has now been found to

have been advised that he had the right to appeal.
Nevertheless, Abreu now raises the question whether his prior
counsel failed to consult with him adequately regarding his
right to appeal.

Further briefing will be allowed on that

question.
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