Opinion
01 CIV. 3056 (DLC).
August 15, 2001.
Tony Liberato, Pro Se, Reg. No. 45845-054, FCI Otisville, Otisville, NY.
Daniel Gitner, United States Attorney, New York, NY.
OPINION AND ORDER
Tony Liberato ("Liberato") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 dated March 23, 2001. Liberato was sentenced on March 31, 2000, principally to a prison term of 135 months, following his plea of guilty to conspiring with others to distribute and possess with intent to distribute cocaine and 50 grams and more of cocaine base, in violation of 21 U.S.C. S 846. Liberato, who entered a plea pursuant to a guidelines stipulation with the Government that provided a sentencing range of 135 to 168 months and an offense level of 33 and who did not appeal his conviction, does not seek to withdraw his plea. Instead, Liberato contends that his sentencing guidelines range should have been 121 to 151 months, based upon an offense level of 32.
While Liberato's petition argued originally that he was entitled to a sentence based upon a five-year mandatory minimum, his "Rebuttal" to the Government's opposition to this petition withdraws that contention. Petitioner's arguments, if accepted, could, however, entitle him to a sentence lower than 121 months.
Liberato contends that his retained counsel at plea and sentencing was ineffective for (1) not advising advising that he "could not be held responsible for the entire conspiracy drugs amount because he was only into the conspiracy for Four Months," and (2) failing to advocate petitioner's behalf that his sentence should not be enhanced by a role adjustment as a manager in the conspiracy, and, consequently, that he was eligible for a "safety valve" sentence adjustment. Petitioner additionally asserts that a role adjustment was illegal pursuant to the principles of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), because the indictment did not specify that he played a managerial role.
Liberato's Rebuttal may have withdrawn this claim since it seems to accept that his offense level was properly based on the distribution of fifty grams or more of crack.
In the July 7, 2001 Rebuttal filed by Liberato in response to the Government's opposition to this petition, Liberato adds that his attorney was ineffective (3) in not advocating for a three-level adjustment for acceptance of responsibility — instead of the two-level adjustment he received — since his plea had been "timely." Finally, the Rebuttal contends that (4) the Government violated the terms of the plea agreement by using Liberato's own statements as a basis for the three-level enhancement of his role in the offense. For the following reasons, the petition is denied.
BACKGROUND
On January 26, 1999. Liberato was arrested and on February 16, March 4, and May 13, 1999, indictments were filed charging him and twelve others with conspiring to distribute and possess with the intent to distribute cocaine and fifty grams and more of crack cocaine from October 1997 until January l999.
All the defendants subsequently pleaded guilty.
On March 9, 1999, a trial date of September 13, 1999 was set. On July 26, 1999, the Court appointed additional C.J.A. counsel to consult with Liberato regarding the terms of the plea agreement being offered by the Government to the petitioner. On August 4, 1999, Liberato's originally assigned counsel and the additional counsel reported on their consultations with the petitioner and the Government and their advice to the defendant that the plea agreement being offered by the Government was in the defendant's best interest. Counsel for Liberato additionally reported that, although Liberato had previously indicated that he would be entering a guilty plea, he had reconsidered his decision to plead guilty based upon conversations with the two lawyers regarding the proposed plea agreement. Finally, defense counsel explained to the defendant and the Court that Liberato was not eligible for a sentence reduction pursuant to the "safety valve" provision because it was the Government's contention that he was a manager in the conspiracy. The Court answered the petitioner's questions and advised him of his options to either go to trial,
plead pursuant to an agreement with the Government, or plead guilty to all counts in the indictment without any agreement and make all sentencing arguments to the Court. The court reminded the defendant that no matter what he decided to do, if convicted at trial or through a plea, that the Court and not the Government would decide his sentence.
Liberato subsequently retained counsel who entered an appearance for Liberato on August 25, 1999. Also on August 25, pursuant to a plea agreement ("Agreement"), Liberato pleaded guilty before Magistrate Judge Dolinger to the first count of the second superceding indictment and admitted, under oath, that he had conspired to distribute and possess with the intent to distribute over fifty grams of crack cocaine. As part of the Agreement, the Government agreed to a two-level downward adjustment based upon Liberato's acceptance of responsibility, but did not agree to an additional one-level reduction because "the defendant did not timely notify the Government of his intent to plead guilty and thereby permit the Government to avoid preparing for trial and permit the Court to allocate its resources efficiently." Liberato stipulated to a base offense level of 32 (based on between 50 and 150 grams of crack), and a three level increase in offense level based upon his role as a "manager and supervisor (but not an organizer or leader)." Liberato and the Government additionally agreed that Liberato's criminal history category was I. Finally, the parties agreed not
Petitioner consented to proceed before Magistrate Judge Dolinger at the time of his plea.
to seek a downward or upward departure, or appeal or collaterally attack a sentence within a range of 135 to 168 months' imprisonment.
At the time of his plea, Magistrate Judge Dolinger informed Liberato that if Liberato had pled not guilty, he would have been entitled to a jury trial, and the burden would have been on the Government to prove Liberato's guilt beyond a reasonable doubt. Magistrate Judge Dolinger additionally reminded Liberato that, under the terms of the plea agreement, he was giving up his right to appeal any sentence under 169 months. Liberato stated, while under oath, that he understood. Liberato also stated that he was satisfied with his attorney. During his allocation, Liberato stated that, "[i]n early October of '97," he "was in charge of giving out the supplies [of crack] to the workers so that they would distribute it, and collecting the money for [his] bosses," and that he continued this activity until January 1999.
On March 31, 2000, this Court sentenced Liberato principally to 135 months in prison. Liberato's counsel advised the Court that she and Liberato had read the Pre-Sentence Report together and discussed each paragraph in it. The Pre-Sentence Report also calculated the guidelines range as 135 to 168 months. Defense counsel indicated that there were no objections to the Pre-Sentence Report. At sentence, this Court concluded that the three-level adjustment for Liberato's activities as a manager was factually supported based upon the description of his activities in the Pre-Sentence Report. Liberato thanked the Court for sentencing him at the lowest end of the guidelines range. He did not voice any quarrel with the role adjustment or any other fact on which the sentence was based. As noted already, Liberato did not appeal his conviction.
DISCUSSION
A. Procedural Bar
The Government asserts that petitioner's claims are procedurally barred because he did not raise them on appeal. A habeas petition brought pursuant to 28 U.S.C. § 2255 "is not a substitute for an appeal," and a defendant who did not raise his claims on appeal will be barred from raising them for the first time in a habeas petition unless the defendant can demonstrate (1) "cause for failing to raise the issue, and prejudice resulting therefrom" or (2) "actual innocence." United States v. Rosario, 164 F.3d 729, 732 (2d Cir. 1998) (citations omitted) Because petitioner has neither provided cause for failing to raise these claims, nor claimed that he is actually innocent, his petition is procedurally barred. Even reaching petitioner's claims, however, they are without merit.
A. Ineffective Assistance of Counsel
Liberato asserts that he received ineffective assistance of counsel because his attorney improperly advised him about the quantity of drugs for which he could be held responsible and failed to advocate on petitioner's behalf for a safety valve adjustment and a third point for his acceptance of responsibility. To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must show: (1) that his attorney's performance fell below an objective standard of reasonableness, and (2) there is a "reasonable probability" that the outcome would have been different but for counsel's error. United States v. Davis, 239 F.3d 283, 286 (2d Cir. 200l) (citation omitted). A "reasonable probability" is one "sufficient to undermine confidence in the outcome." Flores V. Demeskie, 215 F.3d 293, 304 (2d Cir. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 694 (1984)). There is a strong presumption that counsel's conduct falls within the "wide range of reasonable professional assistance." Clark v. Stinson, 214 F.3d 315, 321 (2d Cir. 2000) (citation omitted).
Petitioner asserts that counsel was ineffective for not advising him that "at trial he could not be held responsible for the entire conspiracy drug amount because he was only into the conspiracy for Four Months," and that, had he known this fact, he would have exercised his right to a jury trial. Petitioner additionally asserts that he should not have been sentenced to "the full scale of the conspiracy but from when he joined to the end." Petitioner's assertions are not factually supported. Petitioner stated, in his allocution, that he was involved in the narcotics conspiracy from October 1997 until January 1999, the entire duration charged in the indictment. Petitioner additionally admitted to conspiring to distribute and possess with the intent to distribute over 50 grams of crack cocaine.
In addition, petitioner's post-arrest statements — that the narcotics organization sold between $300 and $2,000 worth of drugs every night and that he knew of a 300 gram purchase of crack cocaine — reflects that, regardless of the amount of time that he was involved in the conspiracy, he was involved in the distribution of even more than the 50 to 150 grams of crack cocaine.
In light of petitioner's statements at his plea allocation, there — is no factual basis for Liberato's claim that he was only involved in the conspiracy for four months or that a trial would have led to a more favorable result for Liberato.
Liberato additional asserts that his trial counsel was ineffective for failing to advocate on his behalf for a "safety valve" sentence adjustment. The safety valve provision, 18 U.S.C. § 3553 (f), is only available to defendants who meet each of its five requirements. One of those requirements is that the defendant "was not an organizer, leader, manager, or supervisor of others in the offense." 18 U.S.C. § 3553 (f)(4). Petitioner made a post-arrest statement that he was a "manager" for the drug organization and stipulated in the Agreement that he was a manager and supervisor in the conspiracy. In his plea allocution, Liberato described his managerial role. The Pre-Sentence Report also described Liberato as serving a "managerial function" in the conspiracy, in that he "hired and supervised street-level drug dealers, collected and delivered the proceeds to [his co-defendants] and stored narcotics for them." This Court found, at sentence, that there was an adequate factual basis for this stipulation, and Liberato made no objection to this finding at sentence. Because petitioner was a "manager" in the conspiracy, he was not qualified for a "safety valve" sentence adjustment, and there is, therefore, no prejudice if counsel did not advocate on Liberato's behalf for such an adjustment.
Petitioner additionally asserts, in his Rebuttal, that his counsel was ineffective for failing to advocate for an additional point reduction ror acceptance of responsibility. Section 3E1.l(b) of the Sentencing Guidelines provides that a defendant is entitled to an additional point reduction, beyond the two points usually awarded for acceptance of responsibility, if his adjusted offense level is 16 or greater and the defendant has
The Government's opposition to Liberato's Section 2255 petition erroneously represents, on pages two and six, that the Government agreed that Liberato was entitled to a three-level downward adjustment for acceptance of responsibility in the plea agreement. The terms of the plea agreement provide, however, that petitioner was entitled only to a two-level reduction. This is understood as a typographical error, not an admission by the Government that petitioner could have, in fact, received an additional point reduction had his counsel advocated for one on his behalf.
(1) timely provid[ed] complete information to the government concerning his own involvement in the offense; or (2) timely notif[iedl authorities of his intention to enter a plea of guilty thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently.
U.S.S.G. § 3E1.l(b). The Probation Department concluded, in the Pre-Sentence Report, that petitioner was entitled to a two-level reduction because he had "shown recognition of responsibility for the offense," but was not entitled to an additional one-level reduction because he "did not timely notify the Government of his intent to plead guilty and thereby permit the Government to avoid preparing for trial and permit the Court to allocate its resources efficiently." Because Liberato agreed to plead guilty less than three weeks before trial was scheduled to begin, petitioner's plea was not "timely" and he was not, therefore,
entitled to an additionl one-level reduction for acceptance of responsibility. See United States v. Patasnik, 89 F.3d 63, 73 (2d Cir. 1996). Accordingly, there is no prejudice if defense counsel did not advocate for this additional one-point reduction for acceptance of responsibility.
It is also worth noting that, by signing the Agreement Liberato gave up his right to appeal or otherwise litigate any sentence of 168 months or less. There are certain circumstances where such a waiver will not be enforced. "[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," and, therefore, it is generally appropriate to review the constitutionality of the process by which such a plea was entered, despite the waiver. United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001) (per curiam). Liberato's colloquy with the Court at his plea confirms that he understood the principal terms of the Agreement, including the waiver term, and that he voluntarily executed the Agreement, and he has raised no "substantial question about the voluntary and knowing nature of his guilty plea or his counsel's performance." Id. at 113. Because Liberato's plea was knowingly and constitutionally entered into, his ineffective assistance of counsel claim is dismissed.
B. Apprendi
Petitioner additionally asserts that he was not indicted for his "managerial role in the conspiracy and therefore should not be enhanced with 3 points that took him to a higher guideline range." Petitioner is understood to be claiming that his conviction violates the principles ofApprendi v. New Jersey, 120 S.Ct. 2348 (2000). In the first instance Liberato's waiver of his right to appeal or collaterally attack his conviction precludes litigation of this issue. Reaching the substance of petitioner claim does not, however, assist Liberato. Apprendi does not govern sentencing enhancements resulting from an application of the Sentencing Guidelines, so long as the defendant is sentenced within the statutory maximum. United States v. White, 240 F.3d 127, 136 (2d Cir. 2001). Accordingly, "such determinations can be made by the court without violating the defendant's right to due process." Id. Moreover, during his plea allocution, Liberato described participating in the conspiracy in a managerial role. Under these circumstances, the sentence imposed upon him had an adequate factual basis. United States v. Champion, 234 F.3d 106, 110 n. 3 (2d Cir. 2001)
C. Government's Violation of the Plea Agreement
Petitioner's final contention, in his Rebuttal, is that the Government violated the terms of the plea agreement by using Liberato's own statements as a basis for the three-level enhancement for his role as manager in the offense. There is no factual basis for this claim. In the first instance, the Government did not violate the terms of the plea agreement. The plea agreement does not state that nothing he said in past conversations with the Government could be used to enhance his sentence, as Liberato contends. Indeed, the plea agreement explicitly allowed the Government "to present to the Probation Department or the Court any facts relevant to sentencing." In addition, Liberato stipulated to playing a managerial role in the conspiracy. Finally, the Pre-Sentene Report concluded that petitioner was a manager in the offense, and the Court concluded that the Pre-Sentence Report provided a sufficient factual basis for this conclusion. Petitioner's assertion that the Government violated the terms of the plea agreement is denied.
CONCLUSION
Liberato's petition is denied. The Clerk of Court shall close the case.
I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). Should the petitioner seek to appeal in forma pauperis, I find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED: