Opinion
03 Civ. 6327 (RCC).
May 19, 2005
MEMORANDUM ORDER
Efrain Nicolas Cirineo ("Petitioner"), pro se, filed a petition to vacate, set aside, or correct his sentence of 292 months' imprisonment and 5 years' supervised release pursuant to 28 U.S.C. § 2255. For the following reasons, the petition is DENIED.
I. BACKGROUND
On March 28, 1998, Petitioner was indicted for conspiracy to distribute and possess with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1). On September 29, 1999, Petitioner pleaded guilty, without a plea agreement, to the sole count of the indictment. Before Petitioner entered his guilty plea, however, the Government provided his counsel, Anthony R. Cueto, Esq., with a letter, pursuant toUnited States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991), that set forth the Government's analysis of the application of the United States Sentencing Guidelines to Petitioner's case in the event that Petitioner chose to plead guilty. As indicated to Petitioner in the Pimentel letter, the Government's analysis resulted in a Sentencing Guidelines range of 292 to 365 months' imprisonment, and expressly disclaimed any promise to Petitioner with respect to what sentence the Court would impose. Petitioner consented to proceed before a United States Magistrate Judge, and Petitioner's plea allocution was given before Magistrate Judge Frank Maas. The transcript of that proceeding indicates that a certified court interpreter was present to translate the proceeding into Spanish.
At the outset of the plea proceeding, Judge Maas established that Petitioner was competent to proceed; that he could understand the questions asked by Judge Maas with the assistance of the interpreter; that he had discussed the charges against him with his attorney, Mr. Cueto; and that Petitioner was satisfied with Mr. Cueto's representation of him. (See Guilty-Plea Tr. of 12/29/99, at 3-5.) Judge Maas ensured that Petitioner's plea was voluntary and that Petitioner fully understood both the charges against him and the possible consequences of his plea, specifically advising Petitioner that by pleading guilty he exposed himself to a statutory minimum sentence of 10 years' imprisonment and a maximum sentence of life imprisonment and ensuring that Petitioner understood the range of penalties. (See id. at 5-10.) Judge Maas specifically ensured that Petitioner understood that the Court was "not bound by the Government's understanding of how the sentencing guidelines apply" as set forth in the Pimentel letter, and that no one had made any promises to Petitioner concerning the actual sentence that he would receive. (See id. at 9-10.) Judge Maas also ensured that Petitioner's guilty plea was supported by an adequate factual basis; Petitioner told Judge Maas that he had, in fact, committed the crime charged in the indictment, that during the period in question he agreed with others to violate the federal drug laws by possessing and distributing crack cocaine in the Bronx. (See id. at 11.) The Government asked that Judge Maas confirm with Petitioner that "he distributed more than 50 grams of crack cocaine," to which Petitioner responded in the affirmative. (See id.) At the conclusion of the proceeding, Judge Maas found that Petitioner understood the charges against him, the consequences of his plea, and that his plea was voluntarily and knowingly made. (See id. at 12.) On November 19, 2001, this Court, after reviewing the transcript of the plea allocution before Judge Maas and "determin[ing] that [Petitioner] entered the guilty plea knowingly and voluntarily and that there [was] a factual basis for the guilty plea," accepted Petitioner's guilty plea. United States v. Cirineo, No. 98 Cr. 221 (S.D.N.Y. Nov. 19, 2001) (order accepting plea).
Before sentencing, the Probation Department provided Mr. Cueto and the Government with a Presentence Report ("PSR") setting forth its analysis of the application of the Sentencing Guidelines to Petitioner's case. The Probation Department's analysis, which was similar to the analysis set forth in the Government's Pimentel letter, recommended a sentence of imprisonment of 292 months, a term at the bottom of the applicable Sentencing Guidelines imprisonment range of 292 to 365 months. This range was based, in part, on the fact that Petitioner's "criminal activity involved the distribution of at least 19 kilograms of crack cocaine over a three year period." (PSR ¶ 33.)
On January 7, 2002, the parties appeared before the Court to hear Petitioner's objection to the drug quantity that the Probation Department attributed to him and to conduct a Fatico hearing. See United States v. Fatico, 579 F.2d 707 (2d Cir. 1978) (addressing the appropriate standards for presentence evidentiary hearings). A certified court interpreter was present to translate the proceeding into Spanish. In that proceeding, Petitioner reaffirmed his guilty plea but argued that he should be sentenced based on the 50 grams of crack cocaine mentioned in the plea allocution and not on the 19 kilograms of crack cocaine mentioned in the PSR. (See Fatico Hr'g Tr. of 01/07/02, at 2-3, 5-6.) At the Fatico hearing, the Government called as a witness Franklin Lama, who testified that he distributed crack cocaine for Petitioner from 1995 to 1998, that Petitioner would buy 125 grams of cocaine every three or four days and make that into 140 or 145 grams of crack cocaine, that Petitioner paid him to sell crack from 8 o'clock in the morning to midnight seven days per week, and that it would take two to three days to sell 140 bundles of crack cocaine. (Id. at 24, 26-27.) Mr. Cueto cross-examined Mr. Lama regarding his ability to recall the drug amounts in question. (Id. at 28-31.) Following the hearing, Mr. Cueto tried to persuade the Court that it should not rely on Mr. Lama's testimony in determining the drug quantity attributable to Petitioner. (Id. at 33-34.)
On January 11, 2002, the Court held by a preponderance of the evidence that Petitioner had distributed enough crack during the course of the three-year conspiracy such that the Probation Department's calculation of the Sentencing Guidelines range was appropriate. (See Tr. of 01/11/02, at 4.) On February 5, 2002, the Court sentenced Petitioner to 292 months' imprisonment and 5 years' supervised release. (See Sentencing Tr. of 02/05/02, at 23.)
On February 6, 2002, Petitioner appealed his conviction. On appeal, Petitioner retained new counsel, Roger L. Stavis, Esq. and Laura J. Lefkowitz, Esq., who argued that the drug quantities used to sentence Petitioner violated the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), and that this Court committed clear error by crediting the testimony of Mr. Lama at the Fatico hearing to determine the quantity of drugs attributable to Petitioner for sentencing purposes. The Second Circuit rejected Petitioner's Apprendi argument because Petitioner admitted to selling 50 grams or more of crack cocaine during his plea allocution but received a sentence of only 292 months' imprisonment, less than the maximum statutory penalty of life imprisonment for selling that amount of crack cocaine. See United States v. Cirineo, 60 Fed. Appx. 342, 343, 2003 WL 1191169 (2d Cir. Mar. 13, 2003) (noting that "as long as the sentence imposed is not greater than the maximum penalty authorized by statute for the offense . . . allocuted to by the defendant, a district court may consider drug quantity in determining a defendant's relevant conduct for sentencing purposes" (quoting United States v. McLean, 287 F.3d 127, 133 (2d Cir. 2002)). The Second Circuit also rejected Petitioner's argument regarding Mr. Lama's testimony at theFatico hearing, holding that this Court "did not err, much less clearly err, by crediting Lama's testimony for purposes of determining the exact quantity of drugs attributable to [Petitioner]." Cirineo, 60 Fed. Appx. at 344, 2003 WL 1191169, at *1-2. On October 6, 2003, the Supreme Court denied Petitioner's petition for writ of certiorari. Cirineo v. United States, 540 U.S. 936 (2003).
Petitioner filed the instant § 2255 petition on August 21, 2003 and subsequently forwarded an amended petition to the Court that incorporated the claims in the first petition by reference. Petitioner claims (1) that he received ineffective assistance of counsel from his trial counsel during his plea and sentencing (see Pet. at 4); (2) that he received ineffective assistance of counsel from both his trial and appellate counsel because they did not raise the issue that he did not understand the consequences of his plea (see Am. Pet. at 57-59); (3) that he "is actually and factually, as well as legally innocent of the sentence imposed" (id. at 64); (4) that the Court erred in crediting Mr. Lama's testimony during theFatico hearing to determine the amount of crack cocaine attributable to Petitioner for sentencing purposes (see Pet. at 4) and, in so doing, improperly relied on a co-conspirator's testimony (see Am. Pet. at 60-62); and (5) that the Government lacks standing to enforce the federal drug laws and the federal drug laws are unconstitutional such that Petitioner's sentence is unconstitutional (see id. at 1-56).
Because Petitioner is proceeding pro se and avers that he neither reads, writes, or speaks English (see Am. Pet. at 57), the Court presumes that a "jailhouse lawyer" drafted the colorful and creative, yet not always legally accurate, 65-page amended petition. See Bourdon v. Loughren, 386 F.3d 88, 97 n. 12 (2d Cir. 2004) (noting that "jailhouse lawyers," who "have no formal legal training or qualifications" and are "also called `inmate writ writers,' are prisoners who assist other prisoners on applications for the writ of habeas corpus and other legal matters").
Petitioner also argues that the Government "breached the guilty plea . . . [because] [t]he government agreed to sentence defendant for 50 grams and a guideline range of no more than 188 months" (see Pet. at 6). Petitioner does not, however, provide any support for this assertion and the Court rejects this argument. There was no plea agreement in this case. Further, thePimentel letter in this case set forth the Government's analysis that a 292- to 365-month sentencing range would apply in the event that Petitioner were to plead guilty. That letter also expressly disclaimed any promise to Petitioner with respect to what sentence the Court would impose.
Petitioner also seeks a default judgment on the ground that the Government did not timely respond to his petition. That the Government did not respond to the petition on an earlier date is not a basis to release Petitioner from federal custody, however, and the Court rejects Petitioner's arguments to the contrary. Were the Court to enter a default judgment against the Government on Petitioner's § 2255 petition without reaching the merits of his claims, "it would not be the defaulting party but the public at large that would be made to suffer, by bearing either the risk of releasing prisoners that in all likelihood were duly convicted, or the costly process of retrying them." See Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir. 1984); see also Cannavo v. United States, 860 F. Supp. 145, 148 n. 6 (S.D.N.Y. 1994 (finding no default where the court later granted the government an extension of its time to respond). The Court will not render default judgment against the Government to release Petitioner from federal custody.
II. DISCUSSION
Having reviewed the prior proceedings bearing on Petitioner's plea and sentencing, the Court has determined that none of Petitioner's arguments is persuasive. Petitioner's claims are either meritless or are procedurally barred.
A. Petitioner's Ineffective-Assistance-of-Counsel Claims are Denied on the Merits
Petitioner claims that he received ineffective assistance of counsel from Mr. Cueto with respect to his plea and sentencing because Mr. Cueto (1) "fail[ed] to inform [Petitioner] that he would face a mandatory minimum sentence of at least 20 years" (Pet. at 4); (2) "failed to object to the drug amounts that were used" (id.); (3) "assured [Petitioner] that he would not get more than 10 years by pleading guilty" (id.). Petitioner also claims that he received ineffective assistance of counsel from both Mr. Cueto and his appellate counsel because they (1) did not raise the issue that Petitioner did not understand the consequences of his plea (see Am. Pet. at 57-59) and (2) failed to object that Petitioner "was not brought to trial within the required 70-day time limitation of the Speedy Trial Act." (Mot. to Amend of Pet'r of 04/26/04, ¶ 10.)
An ineffective-assistance-of-counsel claim may be raised in a § 2255 petition even where such a claim was not made on direct appeal. See Massaro v. United States, 538 U.S. 500, 503 (2003). The Supreme Court has held that "the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58 (1985). To satisfy the first part of this test, a petitioner must establish that his attorney's conduct fell below "an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984). Under the first prong of the Strickland test, the Court "must `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' and be watchful `to eliminate the distorting effects of hindsight.'" Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) (quoting Strickland, 469 U.S. at 689). To satisfy the second part of the test, a petitioner must establish that his attorney's "deficient performance prejudiced the defense." Id. at 687 (setting out the standard that "but for counsel's unprofessional errors, the result of the proceeding would have been different"). Because both parts of the Strickland test must be satisfied for a petitioner to establish ineffective assistance of counsel, failure to satisfy one part of the test frees a district court from assessing whether the petitioner satisfied the other part of the test. Strause v. Leonardo, 928 F.2d 548, 556 (2d Cir. 1991). Each of the grounds that Petitioner raises to support his allegation that his "plea of guilty was unintelligent, unknowing, and involuntary" because he received ineffective assistance of counsel (see Am. Pet. at 57) fails to meet the Strickland test.
1. Counsel's Purported Failure to Inform Petitioner of the Mandatory Minimum Sentence
Petitioner's claim that his trial counsel gave him ineffective assistance because he failed to inform Petitioner of the mandatory minimum sentence for his crime fails to meet theStrickland test. During Petitioner's guilty plea, he was advised that the applicable mandatory minimum sentence of imprisonment was 10 years' imprisonment and that the maximum penalty for violating 21 U.S.C. § 841(b)(1)(A) involving 50 grams or more of crack cocaine was life imprisonment. Judge Maas ensured that Petitioner was aware that the Government's analysis of the applicable Sentencing Guidelines indicated that Petitioner could face between 292 and 365 months' imprisonment. Petitioner has not demonstrated that his counsel's performance was deficient. Rather, Petitioner stated under oath at his plea allocution that he was fully satisfied with Mr. Cueto's representation. Petitioner's sworn statements at the time of his guilty plea are entitled to far greater weight than his after-the-fact assertion. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) ("Solemn declarations in open court carry a strong presumption of verity. The 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."). Further, Petitioner has not demonstrated that he was prejudiced by his counsel's purported deficiency. Even if Mr. Cueto had himself failed to advise Petitioner that he could face 292 months' imprisonment by pleading guilty, Petitioner knowingly and voluntarily exposed himself to such a punishment. This claim is denied on the merits.
2. Counsel's Purported Failure to Object to the Drug Quantity Used for Sentencing
Petitioner asserts that Mr. Cueto rendered ineffective assistance of counsel by not objecting to the drug quantities that were used for Petitioner's sentencing. But both Mr. Cueto and Petitioner himself made their objections clear at the Fatico hearing held by the Court. Indeed, the very basis for conducting the Fatico hearing was to resolve Petitioner's objection to the drug quantities that the Probation Department attributed to Petitioner in the PSR. Further, Mr. Cueto cross-examined Mr. Lama during the hearing and, following the hearing, argued that the Court should not rely on Mr. Lama's testimony in determining the drug quantity attributable to Petitioner. Petitioner again fails to meet theStrickland test, and the Court denies this claim on the merits.
3. Counsel's Purported Assurance that Petitioner Would Receive No More than 10 Years' Imprisonment
Petitioner asserts that Mr. Cueto assured him that he would not receive a sentence of more than 10 years' imprisonment. Once again, Petitioner's argument is contradicted by his sworn statements during the plea allocution. Judge Maas specifically ensured that no one had made any promises to Petitioner concerning the actual sentence that he would receive and informed Petitioner that he faced a statutory maximum penalty of life imprisonment. Petitioner again fails to meet the Strickland test, and the Court denies this claim on the merits.
4. Counsels' Purported Failure to Object that Petitioner Did Not Understand the Consequences of his Plea
Petitioner asserts that both Mr. Cueto and his appellate counsel should have argued that Petitioner did not understand the consequences of his plea. Petitioner argues that (1) "neither the plea agreement or P.S.R. was in Spanish, where [Petitioner] neither reads, writes, or speaks English" and that Petitioner did not therefore "understand the consequences of his plea, in particular that he could and would be held accountable [for more than 50 grams of crack cocaine]" such that his counsel was "ineffective for failing to ensure that his client truly understood everything that was taking place in the courtroom"; (2) he "bargained for . . . no more than 151 months imprisonment" and that "[i]f he would have known that he was going to receive a 292 month sentence, he would have elected to go to trial and challenge the . . . evidence against him"; and (3) that "when asked by the court whether he had seen the [Pimentel] letter or had its contents explained to him, answered in the negative" and his appellate counsel was ineffective for failing to raise this issue on appeal. (Am. Pet. at 57-59.) Petitioner's claim that he did not understand the consequences of his plea for these reasons is meritless.
First, a certified court interpreter was present at Petitioner's plea allocution, and Petitioner told Judge Maas that he could understand and responded to many questions without once indicating that he could not understand Judge Maas or his counsel. Further, Petitioner still admits that he pleaded guilty to a conspiracy to possess and distribute "50 grams and more" of crack cocaine. (See Am. Pet. at 57.) The notion that Petitioner meant to plead to only 50 grams and not more is baseless. Similarly, Petitioner provides no basis for his claim that he "bargained for" a lesser sentence and would have elected to go to trial had he known that he was going to receive a 292-month sentence. Judge Maas ensured that no one had made any promises to Petitioner concerning the actual sentence that he would receive. Although when Judge Maas first asked Petitioner if he had seen the Pimentel letter Petitioner indicated that he had not, Judge Maas ensured that Mr. Cueto immediately reviewed the letter with Petitioner in the courtroom. Further, Judge Maas ensured that Petitioner understood that by pleading guilty he exposed himself to a statutory maximum sentence of life imprisonment. The failure to raise meritless claims does not constitute ineffective assistance of counsel. United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995). Accordingly, Petitioner has again failed to demonstrate that his counsel provided ineffective assistance, and the Court denies this claim on the merits.
5. Counsels' Purported Failure to Raise Objections Concerning the Speedy Trial Act
Finally, Petitioner asserts that he was not brought to trial within the required time limitation of the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), which states that "the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." Petitioner's claim of ineffective assistance of counsel concerning the Speedy Trial Act is meritless.
Review of the docket sheet in this case indicates that there was no violation of the Speedy Trial Act here. The Court properly excluded time on several occasions: on March 24, 1998, time was excluded until March 26, 1998; on March 26, 1998, time was excluded until May 20, 1998; on May 20, 1998, time was excluded until July 31, 1998; on July 31, 1998, time was excluded until October 28, 1998; on October 28, 1998, time was excluded until December 4, 1998; on December 4, 1998, time was excluded until February 4, 1999; on February 4, 1999, time was excluded until March 30, 1999; on March 30, 1999, time was excluded until July 12, 1999; on July 8, 1999, time was excluded until October 4, 1999, the date scheduled for trial. Each extension was made in the interest of justice pursuant to 18 U.S.C. § 3161(h)(8). Because Petitioner's claim of a violation of the Speedy Trial Act is without merit, his counsel's conduct in not raising objections concerning the Speedy Trial Act did not fall below an objective standard of reasonableness. Petitioner has again failed to satisfy the Strickland test.
B. Petitioner's "Actual Innocence" Claims Fail
Petitioner's claims as part of his § 2255 petition that he "is actually and factually, as well as legally innocent of the sentence imposed." (Am. Pet. at 64.) As an initial matter, "[a] habeas action is not intended to substitute for a direct appeal," and any habeas petitioner "who fails . . . to pursue such an appeal would ordinarily be procedurally barred from challenging his conviction." Fountain v. United States, 357 F.3d 250, 254 (2d Cir. 2004); see also United States v. Frady, 456 U.S. 152, 165 (1982) ("[W]e have long and consistently affirmed that a collateral challenge may not do service for an appeal."). A petitioner can overcome this procedural bar if he can demonstrate "actual innocence," see Bousley v. United States, 523 U.S. 614, 622 (1998), but to establish actual innocence, a "petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him," Fountain, 357 F.3d at 255 (quoting Bousley, 523 U.S. at 623). Having stated nothing more in support of his actual innocence claim than that he "is actually and factually, as well as legally innocent of the sentence imposed," Petitioner has failed to meet this burden such that this claim fails.
C. The Petition and Amended Petition Also Raises Procedurally Barred Claims
Petitioner's petition and amended petition also attack Petitioner's plea and sentencing by arguing that the Court committed clear error by crediting Mr. Lama's testimony at theFatico hearing and by sentencing Petitioner to 292 months' imprisonment because "based on the fact that no one can be sure of the exact amount of drugs involved [Petitioner] should be sentenced at a base level of 28." (See Pet. at 5, 7; Am. Pet. at 60-64.) Petitioner raised these arguments on appeal. See Cirineo, 60 Fed. Appx. at 344, 2003 WL 1191169, at *1-2. Collateral relief under § 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.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). And "section 2255 may not be employed to relitigate questions which were raised and considered on direct appeal."Barton v. United States, 791 F.3d 265, 267 (2d Cir. 1986). Because Petitioner's arguments regarding Mr. Lama and theFatico hearing were already raised and rejected on appeal to the Second Circuit, Petitioner is procedurally barred from raising them again as part of his § 2255 petition.
D. The Government Has Standing to Enforce the Federal Drug Laws and Those Laws are Not Unconstitutional
Petitioner's argument that his sentence violates the Constitution because the Government lacks standing to enforce the federal drug laws and those laws are unconstitutional is meritless. Petitioner was prosecuted by the United States Attorney for the Southern District of New York — appointed by the President of the United States and affirmed by the Senate to be the chief federal law enforcement official for this judicial district and responsible for the prosecution of all offenses against the United States within this district — with the assistance of Assistant United States Attorneys appointed by the Attorney General to assist the United States Attorney in carrying out the duties of his office. See 28 U.S.C. §§ 541, 542, 547. Petitioner's standing and jurisdiction arguments are largely nonsensical. (See, e.g., Am. Pet. at 3 (asserting that the U.S. Attorney "lacked authority to represent the `United States of America' in the proceedings; it only has authority to represent the `United States'," and that "the indictment itself is jurisdictionally defective because the `United States of America' lacked standing to `stand in the shoes of' the Government of the United States'"); id. at 45 (asserting that because Petitioner "was seized upon the sovereign territory of the State of New York, the federal government had no lawful authority to either seize his person or prosecute him for alleged federal offense unless and until the State of New York ceded its territorial jurisdiction over the particular parcel of land that [Petitioner] was arrested on").)
Likewise, Petitioner's arguments that the "Federal Drug Laws under 21 U.S.C. § 841" are unconstitutional (e.g., because "Congress lacked the power or authority to enact the laws," because § 841 "has never been lawfully codified into the law, and reported in the Federal Register as the law requires," because § 841 lacks an interstate nexus) are without merit. (See Am. Pet. at 17-21.) Federal courts across the United States have uniformly held that Congress validly exercised its power under the Commerce Clause when it enacted the Controlled Substances Act, 21 U.S.C. §§ 801 et seq., and that local narcotics activity has a substantial effect on interstate commerce. See, e.g., United States v. Westbrook, 125 F.3d 996, 1009-10 (7th Cir. 1997) (noting that local distribution of crack cocaine is part of a long chain of international and interstate commerce); Proyect v. United States, 101 F.3d 11, 14 (2d Cir. 1996) (per curiam) (holding that § 841 represents a valid exercise of the commerce power); United States v. Genao, 79 F.3d 1333, 1335 (2d Cir. 1996) (holding that § 846 is constitutional). Petitioner's contention that the Court lacked subject matter jurisdiction to sentence him because only state authorities can punish him for his offense has also been rejected. See Henriquez v. United States, No. 03 Civ. 478 (DC), 2003 WL 21242722 (S.D.N.Y. May 29, 2003) (denying a § 2255 petition challenging the constitutionality of § 846).
III. CONCLUSION
For the foregoing reasons, the petition is DENIED. The Clerk of the Court is directed to close this case and remove it from the Court's active docket.
So Ordered.