Opinion
D.C. CV. No. 2005/0122, 28 U.S.C. § 2255, Ref.: D.C. CR. NO. 2003/0016.
February 1, 2007
MEMORANDUM OPINION AND ORDER
Pro se Petitioner Jose Aleman Figuereo pled guilty to possession with intent to distribute heroin in violation of 21 U.S.C. § 841. Figuereo is now before the Court on a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The Government opposes Figuereo's motion and moves for its denial.
I. FACTS AND PROCEDURAL HISTORY
Because this opinion is written solely for the parties, only those facts relevant to this discussion will be recited. In a conditional plea agreement dated May 14, 2003, Figuereo pled guilty to Count One, possession with intent to distribute heroin, but reserved the right to appeal the denial of his motion to suppress. On October 31, 2003, the Honorable Thomas K. Moore sentenced Figuereo to the statutory minimum of 120 months incarceration, five years supervised release, and no fine. Figuereo appealed.
The Federal Rules of Criminal Procedure provide that:
With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea.
FED. R. CRIM. P. 11(a)(2).
The evidence Figuereo sought to suppress was approximately 1.4 kilograms of heroin obtained by U.S. Customs officers in their search of the safe in his cruise ship cabin. In denying Figuereo's motion to suppress, the trial judge held that the customs officers executed a routine border search, and that the officers had reasonable suspicion to search his cabin and the locked safe. Having decided the motion on other grounds, Judge Moore did not make a finding as to whether Figuereo had consented to the search of his cabin or the cabin safe.
In affirming Judge Moore's denial of the motion to suppress, the Court of Appeals for the Third Circuit held that:
There is no dispute that the search of Aleman-Figuereo's cabin occurred at the "functional equivalent" of an international border. . . . The Supreme Court has repeatedly held that "searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border." Accordingly, customs officials, among others, have the authority to perform routine border searches without warrant, probable cause, or reasonable suspicion.
. . . .
Because the customs officials here clearly possessed reasonable suspicion. . . . we need not address whether the search of Aleman-Figuereo's cabin was a routine or non-routine border search. If routine, the search would have been lawful without any showing of reasonable suspicion by customs officers or consent by Aleman-Figuereo. If non-routine, the search would also be lawful, as the totality of the circumstances in this case created a reasonable suspicion that Aleman-Figuereo was engaged in narcotics smuggling thereby justifying the officers' search of his cabin and the cabin safe.
. . . .
Because there was reasonable suspicion, we need not consider Aleman-Figuereo's argument that he did not consent to the search of the cabin generally, or to the locked cabin safe in particular. Our determination that the customs officers had reasonable suspicion to search Aleman-Figuereo's cabin and the safe therein assures that the search was lawful under the Fourth Amendment and that the District Court properly denied the motion to suppress the contraband uncovered during the search of Aleman-Figuereo's cabin.United States v. Aleman-Figuereo, 117 Fed. Appx. 208, 210-13 (3d Cir. 2004) (citations omitted). Figuereo filed this timely motion under 28 U.S.C. § 2255.
In his § 2255 motion, Figuereo raises two issues. First he alleges that he was deprived of his Sixth Amendment constitutional right to the effective assistance of counsel. Specifically, Figuereo argues that trial counsel allowed him to enter into a plea agreement in exchange for a recommendation that the Court sentence him within a range of 51 to 63 months, as outlined in offense level 24 of the U.S. Sentencing Commission Guideline, while counsel knew or should have known that Figuereo faced a ten-year statutory mandatory minimum sentence based on a previous conviction. (Mem. of Law at 4-5.) Figuereo argues that counsel should have advised him that the plea was a "practical impossibility." ( Id. at 1.) Second, Figuereo argues that the Court erred in failing to advise him during the Rule 11 colloquy that he faced a mandatory ten-year sentence.
The government argues, on the other hand, that: 1) Figuereo waived the right to file a § 2255 motion in his plea agreement; 2) even if this Court were to find that Figuereo did not waive his right to file this § 2255 motion, his motion would fail on its merits; and 3) Figuereo did not receive ineffective assistance of counsel.
II. DISCUSSION
Section 2255 motions are not substitutes for a direct appeal and serve only to protect a petitioner from a violation of the Constitution or from a statutory defect so fundamental that a complete miscarriage of justice has occurred. See United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1594 (1982); see also United States v. Cepero, 224 F.3d 256, 267 (3d Cir. 2000).
To prevail in a § 2255 motion alleging constitutional error, a petitioner must establish an error of constitutional magnitude which had a "substantial and injurious effect or influence" on the proceedings. See Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Petersen v. United States, No. CV. 1998/0066, 2003 WL 22836477, at *2 (D.V.I. Nov. 24, 2003). Even an error that may justify a reversal on direct appeal will not necessarily sustain a collateral attack. See United States v. Addonizio, 442 U.S. 178, 184-85, 99 S.Ct. 2235, 2239-40 (1979)
Claims of ineffective assistance of counsel must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668 (1984). First, Petitioner must show that, considering the facts of the case, his counsel's challenged actions were unreasonable. Id. at 690. The Court must review Petitioner's claim under the "strong presumption that the counsel's conduct falls within the wide range of reasonable professional assistance; that is, [Petitioner] must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 688. Second, Petitioner must show that he was prejudiced by counsel's conduct in that there is a "reasonable probability" that deficient assistance of counsel affected the outcome of the proceeding at issue. Id. at 694-95.
Lastly, a waiver of the right to file a post-conviction petition for writ of habeas corpus is enforced if Petitioner knowingly and voluntarily waived his appellate rights, unless giving force to the waiver would work a "miscarriage of justice." Cf. United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001) (holding that "waivers of appeals, if entered into knowingly and voluntarily, are valid, unless they work a miscarriage of justice"); United States v. Lockett, 406 F.3d 207, 212-214 (3d Cir. 2005) (enforcing an appellate waiver executed by a criminal defendant as part of his guilty plea agreement and finding the defendant not entitled to appellate review).
III. ANALYSIS
A. The Effect of Figuereo's Waiver.
The plea agreement entered on May 14, 2003 set forth the maximum penalties for the offense of possession with intent to distribute heroin as follows:
The statutorily authorized penalty for Count One includes a term of imprisonment which shall not be less than ten (10) years nor more than life, a fine not to exceed four million dollars ($4,000,000.00), and a term of supervised release of at least five (5) years in addition to any term of incarceration. . . . The defendant is aware that the defendant's sentence is within the sound discretion of the sentencing judge and will be imposed in accordance with the Guidelines. Moreover, the [defendant] is aware that the Court has jurisdiction and authority to impose any sentence within the statutory maximum set for the offense to which the defendant pleads guilty. If the Court should impose a sentence up to the maximum established by statute, the defendant . . . will remain bound to fulfill all of the obligations under this Plea Agreement.
Gov't Resp., App. A, Plea Agreement at 2, ¶¶ 2-3 (emphasis added). Figuereo also agreed not to collaterally attack his conviction.
The defendant waives any right to appeal and/or file any post-conviction writs of habeas corpus or coram nobis concerning any and all motions, defenses, probable cause determinations, and objections which the defendant has asserted or could assert to this prosecution and to the Court's entry of judgment against the defendant, EXCEPT that the defendant retains the right to appeal the Court's ruling regarding the previously-filed and litigated defense motion to suppress.Id. at 6, ¶ 7 (emphasis in original). As previously stated, Figuereo was sentenced to ten years incarceration.
Figuereo, whose first language is Spanish, was provided with an interpreter at the change of plea hearing. He acknowledged to Magistrate Judge Geoffrey Barnard that although written in English, the plea agreement had been translated for him and that he understood its contents. (Gov't Resp., App. D, Transcript of Change of Plea at 6.) Judge Barnard then informed Figuereo of the sentence he faced:
Now, because this case is governed by the [F]ederal [S]entencing [G]uidelines, we can't tell you today exactly what your sentence will be on your plea. . . . That determination can only be made after you've had a sentencing hearing before the sentencing judge, who will have the benefit of the presentence report together with any argument made on your behalf by your lawyer.
Today we can only tell you what the maximum possible punishment is that you could serve, but we can also give you a realistic assessment of the sentence which you might expect to receive under the [G]uidelines.
Now, the maximum possible punishment that you could receive is life in prison . . . with a mandatory minimum period in prison of ten years. . . .
( Id. at 7-8.) The Court then asked defense counsel, Douglas Beevers, Esq., his calculation of the Guideline range within which Figuereo might expect to be sentenced. Beevers indicated that he expected "[b]etween 41 month and 51 months. ( Id. at 8.) The Government concurred with that estimated range, but specifically noted that the estimated Guideline range below the statutory minimum took "into consideration compliance of a safety valve." ( Id.)
Figuereo could only receive a sentence below the mandatory minimum if he met the requirements of the Guidelines' safety valve provision, Section 5C1.2. He failed to satisfy the requirements because his criminal history indicated that he had more than one criminal history point.
Section 5C1.2 (LIMITATION ON APPLICABILITY OF STATUTORY MINIMUM SENTENCES IN CERTAIN CASES) provides in relevant part that:
(a) Except as provided in subsection (b), in the case of an offense under 21 U.S.C. § 841, § 844, § 846, § 960, or § 963, the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth below:
(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines before application of subsection (b) of § 4A1.3 (Departures Based on Inadequacy of Criminal History Category);
. . . .
(b) In the case of a defendant (1) who meets the criteria set forth in subsection (a); and (2) for whom the statutorily required minimum sentence is at least five years, the offense level applicable from Chapters Two (Offense Conduct) and Three (Adjustments) shall be not less than level 17.
U.S.S.G. § 5C1.2.
"`More than 1 criminal history point, as determined under the sentencing guidelines,' as used in subsection (a)(1), means more than one criminal history point as determined under § 4A1.1 (Criminal History Category) before application of subsection (b) of § 4A1.3 (Departures Based on Inadequacy of Criminal History Category)." U.S.S.G. § 5C1.2 cmt. n. 1 (2006).
The Court is satisfied that Figuereo understood the terms of the plea agreement and knowingly and voluntarily accepted its terms, including the waiver provision therein. There is no basis in the record to question the validity or applicability of that waiver. Figuereo has failed to demonstrate any specific prejudice. Accordingly, his waiver of the right to file this habeas petition is valid and enforceable. See United States v. Horsley, 599 F.2d 1265 (3d Cir. 1979) (holding that a petitioner in a collateral proceeding must demonstrate prejudice from an alleged violation of Rule 11).
The Court also notes that even if it were to set aside Figuereo's waiver, he would be unlikely to succeed in this habeas petition. Without question, the Court duly advised Figuereo of the sentence he faced, and his arguments to the contrary are clearly contradicted by the record. Moreover, based upon the record, Figuereo would not have persuaded this Court that counsel provided constitutionally deficient assistance under the framework established in Strickland. See Jones v. U.S., 131 Fed. Appx. 819, 821 (3d Cir. 2005) (citing United States v. Martinez, 169 F.3d 1049, 1053 (7th Cir. 1999) (an attorney's "mere inaccurate prediction of a sentence" does not demonstrate the deficiency component of an ineffective assistance of counsel claim)).
IV. CONCLUSION
For the reasons set forth above, Figuereo's motion under 28 U.S.C. § 2255 will be dismissed. An appropriate order follows.
ORDER
For the reasons stated in the Memorandum Opinion of even date, it is herebyORDERED that Petitioner Jose Aleman-Figuereo's Urgent Motion to Move for Disposition of Pending Motion Filed Under 28 U.S.C. § 2255 is GRANTED; and further
ORDERED that Figuereo's motion under 28 U.S.C. § 2255 is DISMISSED; and further
ORDERED that a CERTIFICATE OF APPEALABILITY will not be issued; and further
ORDERED that other pending motions, if any, are DENIED as moot; and finally ORDERED that the Clerk of the Court shall CLOSE this file.