Opinion
No. 02 Civ. 2062 (JFK), No. S1 95 Cr. 991 (JFK)
February 11, 2003
Petitioner, Pro Se: Joseph Montero-Melendez, White Deer, Pennsylvania
For Respondent: JAMES B. COMEY, United States Attorney for the Southern District of New York, New York, New York, of Counsel: Steven R. Peikin Assistant United States Attorney
OPINION AND ORDER
Before the Court is Petitioner Joseph Montero-Melendez' ("Montero-Melendez") pro se motion to correct his sentence pursuant to 28 U.S.C. § 2255 ("§ 2255"). For the reasons outlined below, Petitioner's motion is denied.
Background
On November 25, 1996, Montero-Melendez pled guilty before this Court to two counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) and (2), and to one count of conspiracy to distribute cocaine and crack cocaine, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1) and 846. In exchange for cooperation that Montero-Melendez provided subsequent to his arrest, the Government filed a motion pursuant to U.S.S.G. § 5K1.1 ("5K1.1 letter") bringing to the attention of this Court the "substantial assistance" that Montero-Melendez had provided. The 5K1.1 letter also disclosed Montero-Melendez' breach of the cooperation agreement due to his continued receipt of drug proceeds from former associates while he was cooperating with the Government.
On December 21, 2000, Montero-Melendez was sentenced by this Court. Under the Sentencing Guidelines, Montero-Melendez' offense level was 44, with a criminal history category of I. He faced a minimum of life imprisonment. In light of the Government's 5K1.1 letter, this Court departed downwardly from the guidelines and sentenced Montero-Melendez to 20 years imprisonment. Montero-Melendez did not challenge the sufficiency of the Government's 5K1.1 letter at sentencing, and he did not appeal his sentence, though he was advised of his right to appeal by the Court.
Montero-Melendez submitted this § 2255 motion to the Court on February 8, 2002, requesting that his sentence be reduced. First, Montero-Melendez argues that reduction is warranted due to the Government's failure to inform the Court that he cooperated with the United Marshals Service to apprehend a fugitive. Montero-Melendez asserts that this failure to disclose was a breach of the cooperation agreement and thereby prejudiced him before the Court. Second, Montero-Melendez contends that he received constitutionally ineffective assistance when his attorney failed to advise him that he had a basis for appeal.
DISCUSSION
I. Montero-Melendez' Petition is Timely
Under the Antiterrorism and Effective Death Penalty Act of 1996, a petitioner has one year to file a petition pursuant to 28 U.S.C. § 2255. The statute of limitations on Montero-Melendez' petition began to run on January 8, 2001 when his 10-day deadline for filing a Notice of Appeal expired and his judgment became final. See Bryant v. United States, 2000 WL 1818582, at *2 (S.D.N.Y. Dec. 11, 2000) (citing Martinez v. United States, 2000 WL 863121 at *1 (S.D.N.Y. June 28, 2000)). The filing date for a prisoner proceeding pro se is governed by the "prison mailbox rule," which sets the effective filing date as the day upon which the prisoner delivers the petition to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 276 (1988); Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) (extending the "prison mail box" rule to pro se § 2255 motions). Though the Government questions the timeliness of Montero-Melendez' delivery of his petition, the envelope in which Montero-Melendez sent his petition was stamped and dated January 3, 2002, by the United States Penitentiary in Allenwood, Pennsylvania.
Although, Montero-Melendez' petition was initially delivered unsigned, it was corrected and returned to this Court's pro se office by February 28, 2002. The courts of this circuit have shown leniency in accepting minor procedural errors committed by prisoners acting pro se. See United States v. Giaimo, 880 F.2d 1561, 1564 (2d Cir. 1989) ("We give Giaimo the benefit of the doubt in the face of the practical difficulties that an incarcerated prisoner faces in preparing and presenting an appeal."). Thus, Montero-Melendez' petition is deemed timely.
II. Montero-Melendez' Petition is Procedurally Barred
Montero-Melendez' petition is procedurally barred because he failed to raise his claim on direct appeal from his sentence. A federal prisoner who fails to raise an issue on direct appeal is procedurally barred from asserting it for the first time on habeas review unless he can show "cause and actual prejudice." United States v. Frady, 456 U.S. 152, 167-68 (1982); see also United States v. Canady, 126 F.3d 352, 359-60 (2d Cir. 1997), cert. denied, 522 U.S. 1134 (1998). "Under this standard, to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) `cause' excusing his double procedural fault, and (2) `actual prejudice' resulting from the errors of which he complains." Frady, 456 U.S. at 167-68.
Montero-Melendez alleges that his procedural default is a result of ineffective assistance of counsel. Montero-Melendez claims that his attorney failed to notify him that he had grounds for an appeal. There are circumstances where a claim of ineffective assistance may establish a "cause" for failure to raise an issue on direct appeal. Billy-Elko v. United States, 8 F.3d 111, 113-16 (2d Cir. 1993). No such circumstances exist here. First, it is unclear as to which attorney Montero-Melendez is referring in his claim of ineffective assistance as he has been represented by different attorneys at different stages of these proceedings. In a letter to the court, Ismael Gonzalez, writing on behalf of Montero-Melendez, alludes to "attorney Cohen[`s]" failure to disclose Montero-Melendez's continued receipt of drug proceeds as the reason why Montero-Melendez believed that he did not have a basis for appeal. (Letter reply submitted by Ismael Gonzalez, on behalf of Joseph Montero-Melendez, to Honorable John F. Keenan of 11/18/2002). However, Montero-Melendez was represented by Lee Ginsburg at the sentencing hearing, ten days after which a motion for direct appeal needed to be filed.
This arrangement of successive representation, in and of itself, provides a basis to reject Montero-Melendez' claim. The Second Circuit has found that different representations at the time of a guilty plea and at sentencing prevent the petitioner from evading the procadural bar that applies when an ineffective assistance of counsel claim is raised for the first time in a § 2255 petition. Espinal v. United States, 1995 U.S. App. LEXIS 39936 (2d Cir. Dec. 22, 1995) ("The new counsel made the determination not to file a direct appeal. That counsel could have, but chose not to, challenge the performance of the previous attorney . . .")
Montero-Melendez' claim of ineffective counsel also fails under the strict standards of Strickland v. Washington, 466 U.S. 668 (1984). Montero-Melendez must demonstrate that his representation fell below an "objective standard of reasonableness" under "prevailing professional norms." Id. at 688. The Supreme Court has found that it is reasonable for counsel to choose not to repeat to his client his right to appeal when the court clearly alerts the client of such a right. Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). The record indicates that Montero-Melendez was notified of his right to appeal at sentencing, thus he was not prejudiced by his counsel's alleged failure. (Tr. at 23).
"Tr." refers to the sentencing transcript of December 21, 2000.
Further, the Flores-Ortega ruling only imposes a duty on the attorney to consult with his client about an appeal when there is reason to believe that a "rational defendant would want to appeal" or that his client "reasonably demonstrated to counsel that he was interested in appealing." Flores-Ortega, 528 U.S. at 480. "A highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, . . . because (that] reduces the scope of potentially appealable issues. . . ." id. at 480, and whether the defendant received the sentence he bargained for in the plea. Montero-Melendez pled guilty to all counts and although a specific sentence was not bargained for, he did receive a substantial downward departure from the sentence mandated by the Sentencing Guidelines. Nothing in the record would provide Montero-Melendez' attorneys with a rational basis from which to conclude that grounds or appeal existed. Montero-Melendez received a very significant departure from the sentence ordinarily mandated by the Sentencing Guidelines for the crimes for which he was convicted, and his primary claim for his § 2255, petition, i.e., the omission of his cooperation with the U.S. Marshals Service from the Government's 5K1.1 letter, was either unknown to his attorney at the time of sentencing or deemed insubstantial; otherwise there would have been a timely objection to the sufficiency of the 5K1.1 letter.
In the letter reply to the Court on November 18, 2002, supporting Montero-Melendez' § 2255 petition, Montero-Melendez' counsel claims that had Montero-Melendez' prior counsel independently disclosed to the Government Montero-Melendez' continued receipt of drug proceeds after the plea agreement was in place then they would not have withheld from the court the alleged cooperation in question. This argument is irrelevant since Mr. Cohen's "failure" to disclose his client's continuing criminal conduct is not the basis for Montero-Melendez' claim of ineffective assistance nor is it the cause of his failure to raise these issues on direct appeal.
1. Montero-Melendez' Claim Is Not Cognizable On Collateral Review
Montero-Melendez' petition must also be rejected because it does not raise claims that are cognizable on collateral review. The Second Circuit has consistently held regarding the application of the Sentencing Guidelines, that "[c]ollateral attack on a final judgment in a criminal case is generally available under § 2255 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 the complete miscarriage of justice.'" United States v. Graziano, 83 F.3d 587 (2d Cir. 1996) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)); see also Femia v. United States, 47 F.3d 519, 525 (2d Cir. 1995) (noting that errors in sentencing are cognizable under § 2255 only where there is constitutional or jurisdictional error or that error resulted in "complete miscarriage of justice"); Tineo v. United States, 977 F. Supp. 245 (S.D.N.Y. 1996) (same).
Montero-Melendez' sentence does not reflect a complete miscarriage of justice. He pled guilty to two counts of murder under 18 U.S.C. § 1959(a)(1), which has been adjudged to carry a minimum sentence of life imprisonment. United States v. James, 239 F.3d 120, 127 (2d Cir. 2000) (affirming lower court's decision that § 1959 carries a mandatory minimum sentence of life in prison.) Nonetheless, this Court made a substantial downward departure after taking into full consideration Montero-Melendez' cooperation, despite his breach of the cooperation agreement.
Montero-Melendez' contention that the Government breached the cooperation agreement through their omission is without merit. The nature of the cooperation agreement was such that the Government promised to disclose to the court any "substantial assistance" that Montero-Melendez provided to them. The Government has stated that they are unaware of Montero-Melendez' alleged cooperation with the United States Marshals Service and Montero-Melendez has provided no evidence to support his claim. Montero-Melendez and his counsel obtained a copy of the Government's 5K1.1 letter prior to sentencing and neither objected to its sufficiency at the time of sentencing nor raised the issue on direct appeal. This Court will not undertake an in-depth investigation into the factual comprehensiveness of the Government's 5K1.1 letter one year and two missed opportunities later.
Even assuming, arguendo, that Montero-Melendez had provided said information to the U.S. Marshals Service, he as only entitled to relief if the inadequacy of the Government's 5K1.1 motion stems from governmental misconuct, bad faith, or unconstitutional or impermissible motives. United States v. Ming He, 94 F.3d 782, 787 (2d Cir. 1996). Montero-Melendez infers that the Government breached the agreement and withheld the information relating to his interaction with the United States Marshals Service in reaction to his breach of the cooperation agreement. The Government was well within its rights to omit this item of information even if this was in fact the case. A defendant who materially breaches a plea agreement cannot then enforce the agreement against the Government. See United States v. Meritt, 988 F.2d 1298, 1313 (2d Cir. 1993) ("A defendant may enforce a plea agreement that includes a guilty plea, however a defendant who materially breaches a plea agreement may not claim its benefits.") Montero-Melendez was aware that the terms of the cooperation agreement forbade him from committing further crimes, yet he continued to receive illegal proceeds in furtherance of the very criminal activity that he was assisting the Government to curtail. Such a material breach would have justified the Government's withholding of the entire 5K1.1 letter, let alone a single item of information. See United States v. Pollack, 91 F.3d 331, 336 (2d Cir. 1996) (finding Government had right to withhold 5K1.1 letter based on its good-faith belief that petitioner made several misrepresentations and was engaging in continuing criminal acts); United States v. Rexach, 896 F.2d 710, 713 (2d Cir. 1990) (holding Government may reject defendant's performance and withhold 5K1.1 letter where there is honest dissatisfaction even if unreasonable).
Finally, a breach by the Government does not necessarily require re-sentencing. "The nature of the remedy varies with the nature of the broken promise and the facts of each particular case." United States v. Brody, 808 F.2d 944, 948 (2d Cir. 1986). The Government filed a 5K1.1 letter, despite Montero-Melendez' breach of the cooperation agreement, that was illustrative of the degree of cooperation that Montero-Melendez provided. Based on the level and nature of his cooperation, this Court made a substantial departure from the sentences prescribed for the serious crimes that Montero-Melendez committed. Having examined the record, the Court finds no indication that the Government made any deliberate misrepresentations as to the extent of Montero-Melendez' cooperation. Montero-Melendez had ample time and opportunities to examine and object to the 5K1.1 letter both at the sentencing hearing and on direct appeal. Even if Montero-Melendez' claim was substantiated, the inclusion of a single additional item of information would have no further impact upon Montero-Melendez' sentence.
CONCLUSION
For the reasons outlined above, Montero-Melendez' petition pursuant to 28 U.S.C. § 2255 to vacate and correct his sentence is hereby denied. Because the Petitioner has not made a substantial showing of denial of a constitutional right, a certificate of appealability will not issue. United States v. Perez, 129 F.3d 255, 260 (2d r. 1997). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). This case is closed and the Court directs to Clerk of the Court to remove this case from the Court's active docket.