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rejecting petitioner's claim that he did not knowingly waive his rights to appeal because the translator did not fully explain the plea agreement because petitioner stated that he fully understood the agreement during the plea allocution
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02 Civ. 4266 (SAS).
March 22, 2006
Jose Manuel Velazquez Pacheco, # 44827-054 FCI Allenwood Low, Federal Correctional Institution, White Deer, Pennsylvania, Petitioner (Pro Se).
Christine Y. Wong, Assistant United States Attorney, New York, New York, for Respondent.
OPINION AND ORDER
Jose Manuel Velazquez Pacheco, proceeding pro se, has moved to vacate, set aside, or correct his sentence pursuant to section 2255 of Title 28 of the United States Code ("section 2255"). Pacheco argues that his attorney was ineffective in: (1) failing to object to the calculations under the United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines"); (2) failing to review the Indictment and obtain evidence from the Government substantiating the allegations against him; (3) employing a translator who failed to adequately explain material portions of the Plea Agreement, causing Pacheco to involuntarily waive his right to direct appeal; and (4) failing to inform the Government of Pacheco's willingness to cooperate. Pacheco also claims that the Indictment against him was defective because: (1) it incorrectly alleged that Pacheco was in "possession" of a controlled substance; and (2) it failed to comply with Apprendi v. New Jersey. Finally, Pacheco contends that this Court erred in calculating his total offense level under the Guidelines because the two-point deduction for the so-called "safety valve" was not deducted twice from his base offense level. For the reasons set forth below, Pacheco's motion is denied.
530 U.S. 466 (2000).
See U.S.S.G. § 2D1.1 (b)(7) ("if the defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a) of § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases), decrease by 2 levels.").
I. BACKGROUND
A. The Offense Conduct
In May 1998, the Drug Enforcement Administration ("DEA") identified certain members of a narcotics trafficking organization operating principally in and around West Fordham Road in the Bronx, New York. The identified members of this organization, including Pacheco, were involved in the distribution of wholesale quantities of cocaine and heroin.
See Presentence Report ("PSR"), Ex. 1 to the Memorandum of Law of the United States of America in Opposition to Defendant Jose Manuel Velazquez Pacheco's Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Gov't Mem."), ¶ 17.
In the course of the investigation, certain narcotics-related conversations involving Pacheco were intercepted from cellular telephones. The Indictment list four such calls, taking place on November 27, 1998 and December 7, 8, and 9, 1998. On January 26, 1999, DEA Special Agents arrested an individual ("CW-1"), who subsequently agreed to cooperate. CW-1 referred to Pacheco as "Pucho" and identified him as a member of the narcotics organization. The Government received additional information that Pacheco and other co-conspirators had attempted to obtain approximately two kilograms of heroin and five kilograms of cocaine. Pacheco was arrested pursuant to an arrest warrant on April 8, 2000 and was indicted on April 20, 2000. The Indictment charged Pacheco with conspiracy to distribute at least five kilograms of cocaine and at least one kilogram of heroin, in violation of section 846 of Title 21, United States Code.
See id. ¶ 18.
See Indictment, Ex. 3 to Gov't Mem., ¶ 4.
See PSR ¶ 19.
See id. ¶ 20.
See Indictment ¶¶ 1-3.
B. Pacheco's Plea Allocution and Sentencing
On November 28, 2000, Pacheco entered into a plea agreement with the Government (the "Plea Agreement"). The Plea Agreement specified that Pacheco would "not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Sentencing Guidelines Range set forth above (120 to 121 months)."
See November 28, 2000 Plea Agreement, Ex. 4 to Gov't Mem.
Id. at 4.
On December 4, 2000, Pacheco pled guilty to Count One of the Indictment before Magistrate Judge Kevin Nathaniel Fox. On December 12, 2000, this Court accepted Pacheco's guilty plea. At the sentencing, which was held on June 1, 2001, the Court made the following calculation of Pacheco's Guidelines range. His base offense level was 32, which corresponded to at least one kilogram of heroin and at least five kilograms of cocaine. Three points were then deducted for Pacheco's acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. At offense level 29, Criminal History Category II, Pacheco's Guidelines range was 97 to 121 months in custody. But because of the statutory mandatory minimum, his effective Guidelines range became 120 to 121 months in custody. Pacheco was sentenced to 120 months imprisonment. He did not file a direct appeal.
Count One charged that an object of the drug conspiracy was the distribution and possession with intent to distribute more than five kilograms of cocaine and more than one kilogram of heroin in violation of 21 U.S.C. § 841(b)(1)(A), which requires a statutory minimum term of imprisonment of 120 months.
II. LEGAL STANDARDS
A. Section 2255
Section 2255 allows a convicted person held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. Accordingly, collateral relief under section 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.'"
See 28 U.S.C. § 2255.
United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Accord United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989) ("Habeas corpus relief is generally available only to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.").
B. Ineffective Assistance of Counsel
A petitioner seeking to attack his sentence based on ineffective assistance of counsel must: (1) show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) "affirmatively prove prejudice," namely, demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 688, 693-94 (1984).
In analyzing a claim that counsel's performance fell short of constitutional standards, "it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument." Instead, the court "must `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . .'" As explained by the Supreme Court,
Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001).
Id. (quoting Strickland, 466 U.S. at 689).
strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.
Strickland, 466 U.S. at 690-91.
Moreover, "[i]n assessing the attorney's performance, a reviewing court must judge his conduct on the basis of the facts of the particular case, `viewed as of the time of counsel's conduct,' and may not use hindsight to second-guess his strategy choices." Thus, a petitioner cannot prevail on a claim of ineffective assistance merely because he disagrees with his counsel's strategy.
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting Strickland, 466 U.S. at 690).
See Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (explaining that an indigent appellant does not have a constitutional right to compel appointed counsel to press every nonfrivolous point on appeal and recognizing "the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review"); Mayo, 13 F.3d at 533 ("[I]t is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made.").
A habeas petitioner "may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." However, "[t]he failure to include a meritless argument does not fall outside the wide range of professionally competent assistance to which [a] [p]etitioner [i]s entitled." Finally, even if an attorney's performance were objectively unreasonable and unprofessional, the defendant must still prove prejudice. That is, the defendant must show "`a reasonable probability' that, but for the deficiency, `the result of the proceeding would have been different.'"
Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000).
Aparicio, 269 F.3d at 99 (quotations and citations omitted).
Id. at 95 (quoting Strickland, 466 U.S. at 694).
C. Waiver of Collateral Attack Rights
"[W]aivers of the right to appeal a sentence, like waivers of constitutional rights, are invalid unless they are voluntary and knowing." An agreement to waive appellate and/or collateral attack rights is not enforceable unless "the record `clearly demonstrates' that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary." Thus, a defendant's knowing and voluntary waiver of his right to attack his sentence pursuant to section 2255 is generally enforceable.
United States v. Monzon, 359 F.3d 110, 116 (2d Cir. 2004) (quotations and citation omitted, bracket in original).
Id. (quotations and citations omitted).
See, e.g., Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002) ("There is no general bar to a waiver of collateral rights in a plea agreement.") (citing Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001) (per curiam)); Monzon, 359 F.3d at 116 ("Where the record clearly demonstrates that the defendant's waiver of her right to appeal a sentence within an agreed Guidelines range was knowing and voluntary, that waiver is enforceable.").
An enforceable section 2255 waiver bars claims based on grounds that arose after, as well as before, the agreement was signed. "However, a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured, here, the plea agreement."
See Garcia-Santos, 273 F.3d at 509 ("There is every reason to believe the parties intended the waiver to apply to claims of error at sentencing as well as to claims relating to pre-pleading events since, for a defendant who pleads guilty, the main contested issues are ordinarily about the sentencing.").
Frederick, 308 F.3d at 195 (citing United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001) (per curiam) ("[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."); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999) (holding that a waiver of the right to file a section 2255 motion is unenforceable where the defendant claims ineffective assistance of counsel with respect to the plea agreement containing the waiver)).
D. Procedural Default
It is well-settled that federal prisoners may not employ section 2255 as a substitute for direct appeal. As the Supreme Court explained in United States v. Frady, "[o]nce the defendant's chance to appeal has been waived or exhausted . . . we are entitled to presume he stands fairly and finally convicted, especially when, as here, he had already has a fair opportunity to present his federal claims to a federal forum." "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either `cause' and actual `prejudice,' or that he is `actually innocent."
See, e.g., United States v. Frady, 456 U.S. 152, 165 (1982); United States v. Addonizio, 442 U.S. 178, 184-85 (1979).
Frady, 456 U.S. at 164.
Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted). Accord Massaro v. United States, 538 U.S. 500, 504 (2003) ("Claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice."); United States v. Warren, 335 F.3d 76, 79 (2d Cir. 2003) ("If the defendant fails to raise a claim of error on direct appeal, habeas relief is generally available only upon a showing of cause and prejudice.").
The Supreme Court has made clear that "cause" is measured by a stringent standard of diligence. Furthermore, "the resulting prejudice must create an ` actual and substantial disadvantage, infecting [the petitioner's] entire trial with error of constitutional dimensions.'"
See, e.g., Coleman v. Thompson, 501 U.S. 722, 753 (1991) ("cause" is "something external to the petitioner" that "cannot be fairly attributed to him"; "[a]ttorney ignorance or inadvertence is not `cause'") (emphasis in original); Murray v. Carrier, 477 U.S. 478, 488 (1986) (("[C]ause for a procedural default on appeal ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim.").
Narvaez v. United States, No. 95 CR 941, 2003 WL 21749638, at *2 (S.D.N.Y. July 29, 2003) (quoting Frady, 456 U.S. at 170) (emphasis in original).
If a defendant fails to establish "cause" and "prejudice" to excuse a procedural default, he can obtain collateral review of his constitutional claim only by demonstrating that the constitutional error "has probably resulted in the conviction of one who is actually innocent." The Supreme Court has emphasized that "`actual innocence' means factual innocence, not mere legal insufficiency."
Bousley, 523 U.S. at 623 (quotations and citation omitted).
Id. ("To establish actual innocence, petitioner must demonstrate that, `in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.'") (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995) (quotations and citation omitted)).
III. DISCUSSION
A. Scope of the Waiver
"When construing an appellate waiver, [courts] apply `well-established contract principles' and examine the plain language of the plea agreement." Such waivers are strictly construed and "any ambiguities in these agreements are read against the Government and in favor of a defendant's appellate rights." Thus, the scope of a waiver is governed by the express language of the agreement in which it is found and the Government, as drafter, must be held to the literal terms of that agreement.
United States v. Taylor, 413 F.3d 1146, 1152 (10th Cir. 2005) (quoting United States v. Porter, 405 F.3d 1136, 1142 (10th Cir. 2005)).
United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (quotations and citations omitted).
See United States v. Anglin, 215 F.3d 1064, 1067 (9th Cir. 2000).
Here, the Plea Agreement specifies that Pacheco would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the Stipulated Guidelines Range set forth above (120 to 121 months)." Pacheco was sentenced to 120 months imprisonment. The waiver of appeal in the Plea Agreement therefore bars any challenges to Pacheco's sentence, but it does not waive any challenges to his underlying conviction. Therefore, a challenge to the underlying conviction is not barred by the Plea Agreement, but any claims challenging Pacheco's sentence are barred.
Plea Agreement at 4.
See Bridgeman v. United States, 229 F.3d 589 (7th Cir. 2000). In Bridgeman, the petitioner (Mr. Bridgeman) signed a plea agreement which expressly waived his right to appeal his sentence on any ground. See id. at 590. After his sentencing, he brought a section 2255 motion claiming ineffective assistance of counsel. See id. at 591. The petitioner specifically asserted "that counsel had rendered his guilty plea involuntary by misadvising him that the plea agreement would produce a 57-month sentence." Id. The Government argued that petitioner's plea agreement waiver barred his section 2255 motion. The court rejected this argument, stating that the "government mischaracterizes the scope of the waiver at issue." Id. The court drew a distinction between challenges to the sentence and challenges to the underlying conviction. See id. In the words of the court, "[b]ecause Mr. Bridgeman never waived his right to challenge his conviction, his claim that his plea was involuntary because his lawyer misadvised him as to the guideline range is not precluded by the plea agreement." Id. at 592.
See United States v. Smith, 160 F.3d 117, 120-21 (2d Cir. 1998) ("Smith's plea agreement waived only his right to appeal his sentence, which is unchallenged on appeal. Smith is arguing a Rule 11 violation, which the plea agreement did not foreclose. We therefore go to the merits."); see also Sierra v. United States, No. 00 Civ. 7113, 2002 WL 362775, at *3 (S.D.N.Y. Mar. 6, 2002) ("However, where a petitioner claims he received ineffective assistance of counsel in entering a plea agreement, a waiver clause contained in that plea agreement will not bar his claim.").
B. Pacheco's Claim That His Sentence Was Improperly Calculated Is Barred by His Direct Appeal Waiver
Pacheco's second claim is a direct challenge to the sentence imposed and, as such, is barred by the waiver provision. The interplay between an appeal waiver and an ineffective assistance of counsel claim has been recently addressed by the Second Circuit. In United States v. Monzon, the court stated that "[t]o find an appeal waiver unenforceable simply because the defendant makes the claim, where the record (a) indicates that the appeal waiver was knowing and voluntary and (b) does not show merit in the ineffective-assistance-of-counsel claim, would render the plea bargaining process and the resulting agreement meaningless." As discussed below, Pacheco's cognizable ineffective assistance claims are without merit. Furthermore, Pacheco has failed to show that the Plea Agreement or the waiver contained therein were not knowing and voluntary. The instant claim is therefore barred by the appeal waiver.
Monzon, 359 F.3d at 119 (quotations and citation omitted).
In any event, Pacheco's claim is meritless. Pacheco was not eligible for relief from the statutory minimum under the "safety valve" because he had more than one criminal history point. Pacheco did not object to that portion of the PSR listing his three criminal history points. The instant claim is both barred and lacking in merit and is therefore dismissed.
Pacheco incorrectly states in the Petition that he is entitled to two separate two-point "safety valve" deductions. Petition, Attachment at 2. Even if he were entitled to a single "safety valve" deduction, there is no authority for deducting it twice.
See 18 U.S.C. § 3553(f)(1) and U.S.S.G. § 5C1.2(a)(1) (stating that in order to be eligible for the provision, "the defendant does not have more than 1 criminal history point").
C. Pacheco's Claim That He Was Charged in a Defective Indictment Is Procedurally Barred and Without Merit
Pacheco claims that the Indictment was defective because it alleged that he was in possession of a controlled substance, which he claims is incorrect. Pacheco further claims that he was indicted and charged incorrectly according to Apprendi v. New Jersey. Because Pacheco was not barred from challenging the validity of the Indictment, this claim should have been brought on direct appeal. It is well-established that a defendant is procedurally barred from bringing a claim in a section 2255 motion that was not previously raised on direct appeal. As the Second Circuit recently stated:
See Petition, Attachment at 1.
See id. at 2.
See, e.g., Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (barring section 2255 review of claim involving insufficiency of the evidence where such claim was not raised on direct appeal); Underwood v. United States, 166 F.3d 84, 88 (2d Cir. 1999) ("Because Underwood had no cause for failing to raise his claim on direct appeal, the claim is now barred."); Davis v. United States, 329 F. Supp. 2d 560, 564 (S.D.N.Y. 2004) ("The general rule is that claims not raised on direct appeal by federal prisoners `may not be raised on collateral review unless the petitioner shows cause and prejudice.'" (quoting Massaro v. United States, 538 U.S. 500, 504 (2003)).
A habeas action is not intended to substitute for a direct appeal. Any 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), cert. denied, 125 S. Ct. 1968 (2005) (citing Frady, 456 U.S. at 165).
There are two exceptions to this general rule: (1) ineffective assistance of counsel claims, and (2) claims showing `cause' and `prejudice' or that the defendant is `actually innocent.'" Under the cause and prejudice exception, "such a showing must be made when there is a complete failure to take a direct appeal." Neither exception applies to Pacheco's claim that the Indictment was "improperly written on the charges." Pacheco's claims of ineffective assistance of counsel are without merit. In addition, Pacheco has not shown any prejudice. Furthermore, he makes no claim that he is "actually innocent." Accordingly, he is procedurally barred from bringing his defective Indictment claim in this proceeding.
Id. (quoting Bousley, 523 U.S. at 622).
United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995).
Petition ¶ 12(B).
Regardless of any procedural bar, Pacheco's claim that "according to Apprendi v. New Jersey he was indicted incorrectly and was charged incorrectly" is wholly without merit. Pacheco does not explain how Apprendi applies to the instant Indictment. As a substantive matter, the Indictment is not flawed because it accurately mirrors the criminal statutes defendant was charged with violating and provides sufficient details to put the defendant on adequate notice of the charges against him. To the extent that Pacheco is attempting to argue that he was improperly sentenced according to Apprendi, that argument must fail as well. Apprendi involved a sentence that was enhanced on the basis of judicial fact-finding and exceeded the statutory maximum for the offense conduct. See Apprendi, 530 U.S. at 481. Here, Pacheco was sentenced to 120 months imprisonment, the statutory minimum under 21 U.S.C. § 841(b)(1)(A). The statutory maximum for this offense was life imprisonment. Thus, Apprendi clearly does not apply.
D. Petitioner's Ineffective Assistance of Counsel Claims Fail to Meet the Strickland Standard
1. Pacheco's First Ineffective Assistance Claim Is Foreclosed by the Appeal Waiver
Pacheco claims that counsel was ineffective because he "did not argue the levels of points given to [Pacheco] for his charge." Pacheco further claims that his total offense level under the Guidelines was incorrectly calculated because the two-point "safety valve" deduction should have been deducted twice. He also argues that he should have received a downward departure because of his "minimum participation. According to Pacheco, the fact that his attorney did not pursue these adjustments is evidence of his attorney's ineffectiveness.
Petition, Attachment at 1.
See id. at 2. Pacheco does not state why the two-point reduction should be deducted twice. Using Pacheco's calculations, his adjusted offense level would be 25, not 26, as incorrectly stated in his Attachment.
Id. at 1.
Although this claim is couched in terms of ineffective assistance of counsel, it is, in reality, a challenge to his sentence. As such, it barred by the Plea Agreement's waiver provision. The Second Circuit addressed a similar situation in United States v. Djelevic where the defendant sought to challenge his sentence on the ground of ineffective assistance at sentencing, despite his unequivocal waiver of his right to appeal any sentence within the stipulated Guidelines range. The court declined to reach the merits of defendant's claim, stating as follows:
Despite his effort to dress up his claim as a violation of the Sixth Amendment, [defendant] in reality is challenging the correctness of his sentence under the Sentencing Guidelines, and is therefore barred by the plain language of the waiver contained in his plea agreement with the government. Instead of claiming directly that the district court should have reduced his guidelines range two levels because the grouping rules of § 3D1.4 should not be applied, or that he should have received only a two-level and not a three-level enhancement for his role in the offense, [defendant] claims that his attorney was ineffective for failing to make these precise agreements at sentencing. . . . If we were to allow a claim of ineffective assistance of counsel at sentencing as a means of circumventing plain language in a waiver agreement, the waiver of appeal provision would be rendered meaningless. This we decline to do.
161 F.3d 104 (2d Cir. 1998).
Id. at 107.
This claim can therefore be summarily dismissed on procedural grounds.
Were this Court to review the substance of this claim, it would find the claim to be without merit as there was no basis for Pacheco to receive a sentence below the 120-month statutory minimum. "[T]he failure to make a meritless argument does not rise to the level of ineffective assistance." United States v. Kirsch, 54 F.3d 1062, 1071 (2d Cir. 1995).
2. Counsel Was Not Ineffective for Allegedly Failing to Confirm the Substantive Allegations of the Indictment
Pacheco asserts that his counsel "failed to review the Indictment" and "failed to obtain evidence from the Government as they were saying that they had recorded phone calls from [Pacheco] making drug transactions over the phone in different occassions [sic]." These assertions are conclusory, unsubstantiated, and have no basis in fact.
Petition, Attachment at 1.
First, Pacheco provides no proof that his attorney failed to review the Indictment or obtain discovery materials, beyond his own self-serving and conclusory statement to that effect. Wary of such allegations, courts have consistently required evidence beyond a defendant's unsupported, self-serving statements to support a claim of ineffective assistance. Contrary to Pacheco's conclusory statements, the Government had in fact provided Pacheco's former attorney, Peter Quijano, with draft transcripts of various tape recordings that had been intercepted. Thus, Pacheco has no basis for asserting that his counsel failed to obtain evidence regarding the recorded phone calls. Nor has he any basis for concluding that his attorney did not sufficiently review the Indictment. The three-page Indictment is a succinct summary of the charges against Pacheco. Failing to challenge an Indictment that is not defective on its face does not rise to the level of ineffective assistance of counsel.
See, e.g., United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (self-serving claims must be supported by objective evidence); United States v. Aiello, 814 F.2d 109, 113 (2d Cir. 1987) ("[T]he application must contain assertions of fact that a petitioner is in a position to establish by competent evidence."); Davison v. United States, Nos. 97 CR 490, 00 Civ. 3406, 2001 WL 883122, at *8 (S.D.N.Y. Aug. 3, 2001) (blanket assertions of ineffective assistance in a self-serving affidavit are insufficient to sustain petitioner's burden).
See July 17, 2000 Letter from AUSA Mark Mendelsohn to Peter Quijano, Ex. 7 to Gov't Mem.
Even assuming, arguendo, that his attorney was somehow deficient, a claim which is not supported by any evidence, Pacheco must still affirmatively prove prejudice under Strickland. Pacheco makes no showing that he would not have pled guilty absent any alleged errors by his attorney. Indeed, in his allocution, Pacheco substantiated the Government's claims as follows:
In May of 1998 I was going to get together with another person in Zima Restaurant in order to agree to distribute cocaine and heroin. We called on cellular phones and we got together and we made the agreement, and we agreed that we would get two kilos of heroin, and five kilos of cocaine in the Bronx.
Transcript of December 4, 2000 Plea Allocution ("Plea Tr."), Ex. 5 to Gov't Mem., at 14-15.
This statement is indicative of Pacheco's willingness to plead guilty without regard to whether his attorney sufficiently reviewed the Indictment or obtained adequate discovery. Because Pacheco cannot prove prejudice under Strickland, his second ineffective assistance claim must be dismissed.
3. Pacheco's Claim That He Did Not Understand the Terms of the Plea Agreement Is Contrary to Statements He Made During His Plea Allocution
Pacheco further contends that his attorney's "translator did not fully explain to [Pacheco] the Plea Agreement that he was getting into and [Pacheco] was not informed that he was giving [up] his rights to an appeal. If [Pacheco] would have been aware of this he would never have got[ten] himself into that Plea Agreement." This claim, again, is self-serving, unsubstantiated, and contrary to the facts.
Petition, Attachment at 1.
During the plea allocution, Pacheco indicated that he understood the charges set forth in the Indictment. Magistrate Judge Fox then questioned Pacheco specifically about the Plea Agreement. Pacheco answered in the affirmative when asked whether he had sufficient opportunity to review the Plea Agreement with his attorney before signing it. In particular, the Court questioned Pacheco as to whether he understood the provision waiving his appeal and collateral attack rights as follows:
See Plea Tr. at 9.
See id. at 13.
THE COURT: Do you understand that among other things the agreement which is represented by this November 28, 2000 letter constricts your ability to appeal from or collaterally attack the judgment of conviction and any sentence that might be imposed upon you?
THE DEFENDANT: Yes, your Honor.
Id. at 13-14.
"[I]n the absence of any credible evidence to the contrary, the court is permitted to rely upon the defendant's sworn statements, made in open court, that: his plea was knowing and voluntary . . . he had discussed the plea with his attorney, he knew that he could not withdraw the plea, he knew that no promises had been made except those contained in the plea agreement, and he was satisfied with the advice of counsel." The above colloquy amply demonstrates that Pacheco fully understood the Plea Agreement's waiver provision and consented to that provision as part of his plea negotiations. His claim that his attorney did not fully explain the terms of the Plea Agreement and that he otherwise misunderstood the Plea Agreement is belied by the record. This ineffective assistance claim is therefore dismissed.
United States v. Soler, 289 F. Supp. 2d 210, 216 (D. Conn. 2003), aff'd, 124 Fed. Appx. 62 (2d Cir.), cert. denied, 126 S. Ct. 354 (2005).
An official court interpreter participated throughout the plea allocution. See Plea Tr. at 1. At no time did Pacheco indicate that he did not understand the interpreter.
See United States v. DeJesus, 219 F.3d 117, 121 (2d Cir. 2000) (per curiam) (rejecting defendant's assertion that he did not knowingly waive his right to appeal in his plea agreement where that contention was inconsistent with statements he made during his plea colloquy).
4. Counsel Was Not Ineffective in Allegedly Failing to Inform the Government of Pacheco's Interest in Cooperating
Pacheco's final ineffective assistance of counsel claim rests on his unsupported allegation that he "had informed his attorney that he was willing to cooperate [with the Government] in exchange for perhaps been [sic] taken into consideration into a better sentence, and his attorney failed to discuss this matter with the Government." As before, the facts directly contradict Pacheco's claim.
Petition, Attachment at 1.
On April 11, 2000, the Government entered into a Proffer Agreement with Pacheco and one of his former attorneys, Nancy Ennis. The Proffer Agreement was signed by Pacheco, his attorney, and the Assistant United States Attorney assigned to the case. As the Proffer Agreement makes clear, it is not a cooperation agreement nor a promise to enter a cooperation agreement. The Proffer Agreement, which refers to a meeting between Pacheco and the Government on April 11, 2000, is evidence that Pacheco's attorney had, in fact, informed the Government of Pacheco's desire to cooperate with the Government, and that Pacheco had met with the Government to provide information on at least one occasion. Thus, Pacheco's argument is contradicted by the underlying facts.
See Proffer Agreement, Ex. 8 to Gov't Mem.
Ultimately, however, the Government did not enter into a cooperation agreement with Pacheco.
Under the circumstances, Pacheco cannot demonstrate that he suffered prejudice under Strickland. Pacheco signed the Plea Agreement and then pled guilty pursuant to that Agreement. At his allocution, Pacheco made clear that his plea was voluntary, given of his own free will, and that no other promises or understandings or agreements had been reached with him in connection with his guilty plea. Therefore, even if Pacheco's counsel did not discuss the possibility of cooperation with the Government, Pacheco was prepared to plead guilty. Because Pacheco has not demonstrated that he would have abandoned his guilty plea and gone to trial absent a cooperation agreement with the Government, he has failed to prove prejudice as required by Strickland. Pacheco's final ineffective assistance claim is therefore dismissed.
See Plea Tr. at 14.
IV. CONCLUSION
For the foregoing reasons, Pacheco's section 2255 motion is dismissed. The remaining question is whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." "A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Petitioner has made no such showing in this case. Accordingly, I decline to issue a certificate of appealability. The Clerk of the Court is directed to close this case.
Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citation omitted)).
SO ORDERED.