Opinion
06 Civ. 7159 (SAS), 02 Cr. 1039 (SAS).
December 6, 2007
Petitioner (Pro Se): Tien Fa Chen, FCI Fort Dix, Federal Correctional Institution, Fort Dix, New Jersey.
For the Government: Jenna M. Dabbs, Assistant United States Attorney, New York, New York.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Tien Fa Chen, proceeding pro se, is moving to vacate, set aside, or correct his sentence pursuant to section 2255 of title 28 of the United States Code ("section 2255"). Chen claims that his attorney was ineffective because he "did not communicate with [Chen], [d]id not explain anything to him, [m]isled him . . . [and] told [Chen] he would only get 135 days in prison." Further, Chen alleges that his attorney claimed he would appeal Chen's conviction and move to commute his sentence, but never provided any such assistance. Additionally, Chen claims that his sentence was improperly enhanced on the ground that he was a "manager" or "supervisor" of criminal activity.
Chen's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Habeas Motion") at 5.
See id.
See id. at 6.
II. BACKGROUND
In August 1999, Chen participated in a conspiracy to smuggle approximately thirty to forty Chinese citizens from Toronto, Canada to Brooklyn, New York. In June 1999, Chen's co-conspirators illegally transported the Chinese citizens to Canada by boat. The aliens were then smuggled across the border into the United States in smaller groups. Each alien paid a fee of forty thousand U.S. dollars for the smugglers' services.
See 3/10/03 Transcript of Plea Hearing by Magistrate Judge Andrew J. Peck ("Plea") at 17.
See 3/22/07 Letter to the Court from Assistant United States Attorney Jenna M. Dabbs Opposing Chen's Petition ("Government Letter") at 1.
See Plea at 17.
See Government Letter at 1.
Once in the United States, the co-conspirators delivered to Chen the aliens who had not yet paid their full fee. Chen held the aliens at his house until their fees were paid in full. While Chen was not involved in the collection of fees, he received a payment of between one and two hundred dollars for each person he held.
See Plea at 19-20.
See id.
On August 7, 2002, Chen was indicted and charged with conspiracy to commit hostage taking, hostage taking, conspiracy to commit alien smuggling for profit, and alien smuggling for profit. On March 10, 2003, pursuant to a plea agreement negotiated before the hearing, Chen pled guilty to all counts except hostage taking. In that agreement, Chen stipulated to the appropriate Guidelines range and agreed to waive both his right to appeal and his right to collaterally attack any sentence falling within the range of 108 to 135 months. Chen, who does not speak English, received a copy of the plea agreement, which was translated both by his own interpreter and a court-appointed interpreter. He reviewed the translated plea agreement with his attorney.
See Government Letter at 2.
See Plea at 23.
See id. at 15.
See id. at 16.
See id.
After Chen pled guilty, he became dissatisfied with his legal representation. For the first time, he alleged that he had been misinformed as to the sentencing range. He claimed that he understood the sentencing range to be between 108 and 135 days rather than months. This Court noted that the Magistrate Judge had explained the sentencing range to Chen and had explicitly stated that the maximum sentence he could receive was 135 months. To allay Chen's concerns, the Court provided Chen with a second attorney who acted as "shadow counsel."
See Government Letter at 2.
See id.
See id.
See 6/20/03 Transcript of First Sentencing Hearing at 11.
See Government Letter at 2.
On July 23, 2003, this Court sentenced Chen to 121 months in prison. Chen appealed his sentence and, on November 2, 2005, the Second Circuit dismissed Chen's appeal on the ground that he had knowingly and voluntarily waived his right to appeal. Chen moved to vacate his sentence on August 8, 2006. For the following reasons, Chen's motion is denied.
See United States v. Chen, 03-1495-cr (2d Cir. 2005).
III. LEGAL STANDARDS
A. Section 2255
Section 2255 allows a convicted person held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. Accordingly, collateral relief under section 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court or an error of law or fact that constitutes `a fundamental defect which inherently results in a complete miscarriage of justice.'"
See 28 U.S.C. § 2255.
United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Accord United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989) ("Habeas corpus relief is generally available only to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.").
B. Ineffective Assistance of Counsel
A petitioner seeking to attack his sentence based on ineffective assistance of counsel must: (1) show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) "affirmatively prove prejudice," namely, demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." In analyzing a claim that counsel's performance fell short of constitutional standards, "it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument." Instead, the court "must `indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. . . .'" As explained by the Supreme Court, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable . . . to the extent that reasonable professional judgments support the limitations on investigation." Moreover, "[i]n assessing the attorney's performance, a reviewing court must judge his conduct on the basis of the facts of the particular case, `viewed as of the time of counsel's conduct,' and may not use hindsight to second-guess his strategy choices.'" Thus, a petitioner cannot prevail on a claim of ineffective assistance merely because he disagrees with his counsel's strategy.
Strickland v. Washington, 466 U.S. 668, 688, 693-94 (1984).
Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001).
Id. (quoting Strickland, 466 U.S. at 689).
Strickland, 466 U.S. at 690-91.
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting Strickland, 466 U.S. at 690).
See Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (explaining that an indigent appellant does not have a constitutional right to compel appointed counsel to press every nonfrivolous point on appeal and recognizing "the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review"); Mayo, 13 F.3d at 533 ("[I]t is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made.").
A habeas petitioner "may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." However, "[t]he failure to include a meritless argument does not fall outside the wide range of professionally competent assistance to which [a] [p]etitioner [i]s entitled." Finally, even if an attorney's performance were objectively unreasonable and unprofessional, the defendant must still prove prejudice. That is, the defendant must show'" a reasonable probability' that, but for the deficiency, `the result of the proceeding would have been different.'"
Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000).
Aparicio, 269 F.3d at 99 (quotation marks and citations omitted).
Id. at 95 (quoting Strickland, 466 U.S. at 694).
C. Waiver of Collateral Attack Rights
"[W]aivers of the right to appeal a sentence, like waivers of constitutional rights, are invalid unless they are voluntary and knowing." An agreement to waive appellate and/or collateral attack rights is not enforceable unless "the record `clearly demonstrates' that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary." Thus, a defendant's knowing and voluntary waiver of his right to attack his sentence pursuant to section 2255 is generally enforceable.
United States v. Monzon, 359 F.3d 110, 116 (2d Cir. 2004) (quotation marks and citation omitted, bracket in original).
Id. (quotation marks and citations omitted).
See, e.g., Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002) ("There is no general bar to a waiver of collateral rights in a plea agreement.") (citing Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001) (per curiam)); Monzon, 359 F.3d at 116 ("Where the record clearly demonstrates that the defendant's waiver of her right to appeal a sentence within an agreed Guidelines range was knowing and voluntary, that waiver is enforceable.").
An enforceable section 2255 waiver bars claims based on grounds that arose after, as well as before, the agreement was signed. "However, a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured, here, the plea agreement."
See Garcia-Santos, 273 F.3d at 509 ("There is every reason to believe the parties intended the waiver to apply to claims of error at sentencing as well as to claims relating to pre-pleading events since, for a defendant who pleads guilty, the main contested issues are ordinarily about the sentencing.").
Frederick, 308 F.3d at 195 (citing United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001) (per curiam) ("[A] plea agreement containing a waiver of the right to appeal is not enforceable where the defendant claims that the plea agreement was entered into without effective assistance of counsel."); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999) (holding that a waiver of the right to file a section 2255 motion is unenforceable where the defendant claims ineffective assistance of counsel with respect to the plea agreement containing that waiver)).
IV. DISCUSSION
A. Chen's Ineffective Assistance Claim Is Belied by the Record
Chen alleges that his counsel failed to adequately explain the terms of the plea agreement. He claims that his counsel led him to believe that he would be incarcerated for at most 136 days rather than 136 months. Additionally, Chen argues that his counsel agreed to provide aid on appeal, but never provided any such assistance. Instead, Chen appealed with the assistance of a court-appointed attorney. The only proof Chen provides for any of his ineffective assistance claims is a copy of a decision by the Supreme Court of New York, Appellate Division, disbarring his former attorney.
See Government Letter at 2; Habeas Motion at 3.
In re Day, 29 A.D.3d 240 (1st Dep't 2006).
Chen's allegations are belied by the statements he made at his plea allocution. The record clearly establishes that he entered into the plea agreement knowingly and voluntarily. At Chen's plea hearing, the Magistrate Judge confirmed that Chen was satisfied with his representation and that he had discussed both his plea agreement and the Sentencing Guidelines with his attorney. The Magistrate Judge told Chen that he might receive a sentence more severe than the one he was "hoping for." The Magistrate Judge verified that Chen was not relying on any representations concerning his sentence other than those contained in the plea agreement. The Magistrate Judge verified that Chen had read a translated version of the plea agreement. The Magistrate Judge asked Chen whether his attorney, Charles Day, explained any terms of the plea agreement that he found confusing. Chen responded, "Yes." Finally, Judge Peck made clear that Chen could not appeal any sentence "within or below the range of 108 to 135 months imprisonment."
See Plea at 8, 10.
Id. at 12.
See id. at 13-14.
See id. at 14.
See id.
Id. at 15.
At his sentencing, on June 20, 2003, this Court heard Chen testify as to his role in the offense. The Court then sentenced Chen to the lowest sentence within the guidelines range, 121 months. This fell well within the range of 108 to 135 months. Thus, Chen has agreed not to appeal this sentence.
See 7/23/03 Transcript of Second Sentencing Hearing at 15.
"[I]n the absence of any credible evidence to the contrary, the court is permitted to rely upon the defendant's sworn statements, made in open court, that: his plea was knowing and voluntary . . . he discussed the plea with his attorney, he knew that he could not withdraw the plea, he knew that no promises had been made except those contained in the plea agreement, and he was satisfied with the advice of counsel." Because Chen's sworn statements directly contradict his more recent self-serving allegations, his ineffective assistance claim is dismissed.
United States v. Soler, 289 F. Supp. 2d 210, 216 (D. Conn. 2003), aff'd, 124 Fed. Appx. 62 (2d Cir.), cert denied, 126 S. Ct. 354 (2005).
B. Chen's Attack on the Calculation of His Sentence Is Barred by the Waiver in His Plea Agreement
In his plea agreement, Chen promised that he would "not file a direct appeal from, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Sentencing Guidelines Range." The sentence imposed, 121 months, fell well within that range.
Although the Court's calculation of the offense level differed slightly from the calculation in the plea agreement, the plea agreement provides that "[the waiver] is binding on the parties even if the Court employs a Guidelines analysis different from that stipulated to herein." Government Letter at 2.
Id.
In United States v. Monzon, the court stated that "[t]o find an appeal waiver unenforceable simply because the defendant makes the claim, where the record (a) indicates that the appeal waiver was knowing and voluntary and (b) does not show merit in the ineffective-assistance-of-counsel claim, would render the plea bargaining process and the resulting agreement meaningless." As discussed above, Chen's ineffective assistance claim has no merit. The record establishes that he knowingly and voluntarily entered into the plea agreement. Therefore, Chen has waived his right to collaterally attack his sentence. Accordingly, his claim is dismissed.
Monzon, 359 F.3d at 119 (quotation marks and citation omitted).
V. CONCLUSION
For the reasons discussed above, Chen's motion to vacate his sentence is denied. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." A substantial showing does not require a petitioner to demonstrate that he would prevail on the merits, but merely that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Petitioner has made no such showing in this case. Accordingly, I decline to issue a certificate of appealability. The Clerk of the Court is directed to close this motion [Docket # 1] and this case.
Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks and citation omitted)).
SO ORDERED: