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denying § 2255 motion because "[petitioner] has not made any [] showing [of a colorable defense] in the present case, and the record reveals no colorable defense to deportation that would allow him to slip within the integument of the Galvez-Falconi standard"
Summary of this case from Jia Ming Huang v. United StatesOpinion
99 Civ. 8565 (RWS)
January 19, 2000
JOSE A. GOMEZ-ARECENA Pro Se, for Petitioner.
HONORABLE MARY JO WHITE, New York (MARC L. GREENWALD, AUSA Of Counsel), United States Attorney for the Southern District of New York Attorney for the United States of America.
OPINION
Pro se litigant Jose Antonio Gomez-Arecena ("Arecena") has petitioned, pursuant to 28 U.S.C. § 2255, for vacatur of a sentence meted out by this Court on April 21, 1999. More specifically, Arecena contends, inter alia, that (1) he was denied his right to effective assistance of counsel, and to an accurate sentence, when his attorney failed either to investigate or to bring to the Government's or the Court's attention "the fact that Mr. Gomez-Arecena wanted to waive his right to a deportation hearing in exchange [for] a possible downward [departure. . . .]"; (2) he was denied his right to effective assistance of counsel and to an accurate sentence, because his attorney failed to investigate whether Arecena could be held responsible for a co-defendant's use of a minor during the commitment of the offense for which he was convicted; and (3) that he was entitled to a departure based on extraordinary family circumstances.
The instant petition was filed by Arecena on August 3, 1999. After affording the Government an opportunity to respond, the petition was deemed fully submitted as of October 18, 1999, though further submissions on the part of Arecena were both received and considered subsequent to that date.
For the reasons set forth below, the petition is denied.
Discussion
On November 16, 1998, Arecena pled guilty to conspiracy to distribute heroin in violation of 21 U.S.C. § 846, a class A felony. On April 21, 1999, he was subsequently sentenced by this Court to 87 months' incarceration, to be followed by a three year term of supervised release. Arecena's sentence reflected, in addition to a two-level decrease for specific offense characteristics and a three-level reduction for acceptance of responsibility, a two-level increase for using a person less than eighteen years of age to commit the offense. See Guidelines § 3B1.4. Arecena took no appeal from his sentence. Instead, he filed the instant petition in August of 1999.
Arecena's essential contentions are that he was denied his right to effective assistance of counsel and to an accurate sentence because his counsel failed to explore the possibility of a downward departure in exchange for waiver of a deportation hearing, and because his counsel did not investigate and press the issue of whether Arecena knew his co-defendant Dario Mejia ("Mejia") would use a minor in the commission of the offense at issue. Arecena has also asserted that he was entitled to a downward departure based on his extraordinary family circumstances — a claim that was expressly rejected by this Court at the time of Arecena's sentencing.
While Arecena's incarceration has had, and will continue to have, a very real and unfortunate impact upon Arecena's family, nothing in the record indicates that his family circumstances are "exceptional" within the meaning of applicable precedent.
As an initial matter, the Government contends that Arecena's failure to raise any of the above-mentioned issues on direct appeal prevents him from now seeking relief under Section 2255, as he has demonstrated neither cause nor prejudice for his failure to appeal.
In general, a defendant's failure to raise a claim on direct appeal will procedurally bar him from raising such a claim in a subsequent Section 2255 petition, absent a fundamental miscarriage of justice, unless he can show both cause for the failure and actual prejudice. See United States v. Frady, 456 U.S. 152, 167-68 (1982); Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999); United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998).
To the extent that Arecena's petition raises substantive issues other than the adequacy of his representation by counsel, the Government's position is well-taken. Arecena has not demonstrated any cause, for example, for his failure to appeal this Court's decision that he was not entitled to a departure due to exceptional family circumstances.
Furthermore, even if his request for a departure were not procedurally barred, Arecena would not be so-entitled. In this circuit, a district court may of course depart downward due to extraordinary family circumstances. See United States v. Galante, 111 F.3d 1029, 1034-37 (2d Cir. 1997). However, such departures are "reserved for situations that are truly extraordinary." United States v. Walker, 191 F.3d 326, 388 (2d Cir. 1999); see United States v. Tejada, 146 F.3d 84, 87-88 (2d Cir. 1998).
However, it is well-settled within this Circuit that an exception to this general rule applies where a defendant's petition pursuant to Section 2255 questions the adequacy of counsel at sentencing. As the Second Circuit explained in Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993), claims of ineffective assistance of counsel may be raised for the first time in a Section 2255 petition unless the petitioner had new counsel on appeal and the claim being raised is based solely on the record developed at trial. See id. at 115; Gauthier v. United States, No. Civ. A. 98-CV-630, 1998 WL 808997, at *3 (N.D.N.Y. Nov. 18, 1999).
This being said, nothing in the papers presently before the Court indicates that Arecena is entitled to the relief he seeks.
Under the familiar two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984), a defendant asserting that his counsel rendered constitutionally ineffective assistance must establish both that counsel's performance was "outside the wide range of professionally competent assistance," id. at 690, and that "there is a reasonable possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. First, while Arecena avers that his counsel was constitutionally ineffective by not pressing Arecena's entitlement to a downward departure in exchange for his willingness to be deported, a review of the applicable authorities reveals that Arecena would not have been entitled to such a departure in the first instance. In United States v. Galvez-Falconi, 174 F.3d 255 (2d Cir. 1999), the Second Circuit recently had occasion to consider the appropriateness of granting downward departures based on a defendant's consent to deportation. To qualify for such a departure, the Galvez-Falconi court held, a defendant "must present a colorable, nonfrivolous defense to deportation such that the act of consenting to deportation carries with it unusual assistance to the administration of justice." Id. at 260; see United States v. Heron, No. 98 Civ. 7457 (SAS), 1999 WL 509469, at *3 (S.D.N Y Jul. 19, 1999). Arecena has not made any such showing in the present case, and the record reveals no colorable defense to deportation that would allow him to slip within the integument of the Galvez-Falconi standard.
Second, though Arecena has pressed that his counsel erred by failing to investigate whether Arecena knew that Mejia was going to use a minor in the commission of the offense at issue, Arecena's lack of actual knowledge concerning the involvement of a minor would not itself preclude the application of Section 3B1.4. Instead, the applicable question is whether the use of minors was a "reasonably foreseeable act[ ] . . . of others in furtherance of the jointly undertaken criminal activity." Guidelines § 1B1.3(a)(1)(B).
The Presentencing Report prepared by the United States Probation Office for the Southern District of New York, and which was explicitly acknowledged by counsel to Arecena to have been read to Arecena, stated that in the course of arranging the purchase of two kilograms of heroin, Arecena instructed his co-defendant Dario Mejia ("Mejia") to "bring a girl with him when he went to pick up the drugs." P.S.R. ¶ 7. No objection was made to this description of events, either before or at the time of sentencing, and Arecena's efforts to provide an explanation are unavailing. Arecena pled guilty to a conspiracy offense, and the record presented does not reveal any infirmities with this Court's application of Section 3B1.4.
In light of this ruling, the Court need not determine whether an enhancement under section 3B1.4 would be proper where none of the members of a conspiracy had reason to know that a minor would be involved in the commission of the crime. C.f. United States v. Cook, 76 F.3d 596, 602 (4th Cir. 1996) (holding that liability under 21 U.S.C. § 861 for receiving controlled substance from minor does not require any knowledge on part of defendant of minor's age).
Conclusion
For the reasons set forth above, Arecena's petition is denied. Furthermore, as Arecena 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). Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that an appeal from this case may not be taken in forma pauperis. Such an appeal would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
It is so ordered.