Opinion
05 Civ. 9895, 03 Cr. 1457 (JFK).
August 30, 2006
PETITIONER, Pro Se: CURTE RAINFORD # 51968-054 Low Security Correctional Institute Allenwood White Deer, PA
For the Respondent: MICHAEL J. GARCIA, United States Attorney, S.D.N.Y. United State Courthouse White Plains, NY Of Counsel: Michael Bosworth, Asst. United States Attorney
OPINION AND ORDER
Before this Court is the pro se motion of Petitioner Curte Rainford ("Rainford") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the motion is denied.
BACKGROUND
In October 2003, the Drug Enforcement Agency ("DEA") received information from a confidential informant about marijuana sales by an organization known as "John Shop." This organization operated out of 1407 White Plains Road, Rear Apartment, 2nd Floor, Bronx, New York ("White Plains Road Address"), among other places.
On or about November 11, 2003, after conducting two weeks of surveillance at the White Plains Road Address, DEA agents observed Rainford driving up to the location in a truck. The truck was then followed to a storage facility located at 1880 Bartow Avenue, Bronx, New York ("Storage Facility"). The agents observed Rainford back into a parking space, exit the truck, and enter the Storage Facility. After approximately ten minutes, Rainford exited the Storage Facility, and moved the truck to a loading dock area. He, along with another man, Rohan Cameron ("Cameron"), then loaded four cardboard boxes into the truck. (Compl. ¶¶ 5-8.)
After leaving the Storage Facility, an officer with the New York Police Department pulled the truck over for failing to stop at a stop sign. The truck was then searched due to the strong odor of marijuana emanating from within. The search revealed that the cardboard boxes, which Rainford and Cameron loaded onto the truck, contained approximately seventy pounds of a substance later confirmed to be marijuana. Rainford also possessed keys to a bin in the Storage Facility. Upon later search, the bin contained approximately 350 pounds of a substance later confirmed to be marijuana. (Compl. ¶¶ 8-12.)
Both Rainford and Cameron were charged with knowingly possessing, with intent to distribute, one hundred kilograms or more of marijuana, in violation of 21 U.S.C. §§ 812, 841(a) (1) and 841(b) (1) (B).
On May 20, 2004, Rainford, accompanied by attorney Adam Jaffe (filling in for Stacey Richman), appeared before this Court. Rainford pleaded guilty, pursuant to a plea agreement ("Plea Agreement"), the provisions of which are set out in a letter dated May 10, 2004. The Plea Agreement stipulated Rainford's United States Sentencing Guidelines ("U.S.S.G") Offense Level at twenty-three. The U.S.S.G. range for that level is forty-six to fifty-seven months imprisonment. However, the Plea Agreement also states that "because Count One carries a statutory mandatory minimum sentence of five years' [sic] imprisonment [and a statutory maximum of 40 years], the stipulated sentence is 60 months." (Plea Agreement at 3.) According to the Plea Agreement "[t]he parties agree that neither a downward nor an upward departure from the [sentence] of 60 months is warranted," and "that the defendant will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255. . . ." any sentence at or below 60 months. (Plea Agreement at 3.)
At the allocution, the Court asked Rainford whether his lawyer had explained the Plea Agreement to him and whether he understood the terms of the Agreement. Rainfornd replied "Yes, your Honor," to both questions. (Plea Tr. at 11.) Upon further questioning, Rainford stated he was aware that, even though his U.S.S.G. range set the time of incarceration at forty-six to fifty-seven months, he would not be sentenced to a term less than sixty months because of the applicable statutory minimum.
THE COURT: Under the terms of the plea agreement, you said, as I understand it, that you understand that according to the government you are what is called in offense level 23 and the range for your sentence is 46 to 57 months. However, there is a mandatory minimum of five years. So apparently the government has agreed that the appropriate sentence is going to be five years.
Do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: . Do you understand that this is not binding on me? Do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: I can be more strict than that. You realize that?
THE DEFENDANT: Yes, your Honor.
THE COURT: Also they say that you have agreed that neither a downward, in other words, less than 60 months, nor an upward departure is warranted.
In other words, you agreed that 60 months, five years is what is the appropriate sentence, is that correct?
THE DEFENDANT: Yes, your Honor.
THE COURT: Again, that his [sic] is not binding on me, it's binding on you and the government.
(Plea Tr. at 11-12.)
Rainford further assured the Court that the decision to enter into the Plea Agreement was of his own free will; not the product of promises made by others of leniency or special treatment, and not the result of coercion, fear, force, or threat of force. (Plea Tr. at 15.) When asked whether he was pleading guilty because he was "in truth and in fact guilty," Rainford replied, "Yes, you Honor." (Plea Tr. at 16.) On November 9, 2004, the Court sentenced Rainford to sixty months imprisonment. (Sentencing Tr. at 4.)
On November 9, 2005, Rainford filed a pro se § 2255 petition in the Southern District of New York. He filed the present, amended motion on January 9, 2006. Rainford alleges three grounds on which this Court should, vacate, set aside or correct his sentence: (1) counsel was ineffective by erroneously predicting the possible sentence he would receive if he was found guilty by a jury, as well as misinforming him of the sentence stipulated in the Plea Agreement; (2) counsel was ineffective for failing to argue for a downward departure at sentencing because Rainford, as a Jamaican National, had agreed to deportation upon release; and (3) counsel was ineffective by failing to move to dismiss the indictment based on the Government's failure to notify Rainford of his rights under the Vienna Convention on Consular Relations.
DISCUSSION
I. Petitioner's Plea Agreement Forecloses This § 2255 Petition
It is settled law that a defendant who waives his right to appeal or collaterally attack a sentence pursuant to the terms of a knowing and voluntary plea agreement, is thereafter bound by such terms if his sentence falls within the stipulated range.United States v. Djelevic, 161 F.3d 104, 106-107 (2d Cir. 1998); United States v. Yemitan, 70 F.3d 746, 747 (2d Cir. 1995). Permitting defendants to challenge such sentences "would render the plea bargaining process and the resulting agreement meaningless." United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993). Thus, "if 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," it will be enforced. United States v. Ready, 82 F.3d 551, 556-57 (2d Cir. 1996).
The record in the instant case sufficiently shows that Rainford knowingly and voluntarily entered into a Plea Agreement, in which he waived his right to appeal or collaterally attack his sentence. During allocution, Rainford answered in the affirmative when asked whether his attorney had explained the Plea Agreement to him, whether he understood the agreement, and whether he was entering into the agreement voluntarily.
The Plea Agreement expressly states that "the defendant will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 . . . any sentence within or below . . . 60 months. . . ." (Plea Agreement at 4.) Because Rainford was given a sentence of 60 months, he is barred from bringing the instant petition. (Sentencing Tr. at 4.)
Finally, Rainford in his Reply Brief, essentially concedes the matter. He states "Petitioner contends that the Government was kind of correct that he waived his right to collaterally attack the sentence." (Pet'r. Reply Br. at 2.)
II. Rainford's Claims of Ineffective Assistance of Counsel are Meritless
A waiver of appeal in a plea agreement "is not enforceable where the defendant claims that the plea agreement was entered into without effective assistance of counsel." United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001). Rainford argues that his waiver is not enforceable because the Plea Agreement he entered into was the product of ineffective assistance of counsel.
A. The Strickland Standard for Ineffective Assistance of Counsel
In order to assess claims of ineffective assistance of counsel, the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), outlined a two-part test. A criminal defendant must show: "(1) that counsel's representation fell below an objective standard of reasonableness measured by the prevailing professional norms; and (2) that there is a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different." United States v. Gordon, 156 F.3d 376, 379 (1998). Thus, the Court must first determine whether or not counsel's performance was deficient. Strickland, 466 U.S. at 687. To meet this requirement, the defendant must prove that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id.
A guilty plea "based on reasonably competent advice is an intelligent plea not open to attack. . . ." McMann v. Richardson, 397 U.S. 759, 770 (1970). Judicial scrutiny of counsel's advice and performance "must be highly deferential."Id. at 689. The reviewing court must remember that the twenty-twenty benefit of hindsight was not available to counsel when the plea agreement was entered into or at sentencing. As such, a court should be wary of "second guess[ing] counsel's assistance after conviction or adverse sentence . . ." Id.
To satisfy the second prong of Strickland, the "prejudice" prong, a defendant must show "that there is a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different."Gordon, 156 F.3d at 379.
B. Application of Strickland to Present Petition
1. Counsel's Sentencing Advice
Rainford first avers that he pleaded guilty because of the erroneous advice of his counsel. Rainford alleges that counsel advised him he would receive a forty-seven-month sentence under the agreement. Rainford also claims that counsel informed him that if he were to plead not guilty, go to trial and be found guilty, he would be sentenced to twenty years imprisonment.
Rainford is unable to meet the first prong of Strickland for either of these allegations. Rainford's claim that counsel induced his plea by informing Rainford of an agreement under which he would have received forty-seven months is flatly contradicted by the record. When determining the validity of such a claim, the Court is entitled to rely upon the "defendant's sworn statements, made in open court, that he understood the consequences of his plea, had discussed the plea with his attorney, knew that he could not withdraw the plea, understood that he was waiving his right to appeal [his] sentence . . . and had been made no promises except those contained in the plea agreement." Hernandez, 242 F.3d at 112.
Rainford's Plea Agreement states that "the stipulated sentencing Guidelines range is 46 to 57 months." It clarifies, however, that "because Count One carries with it a statutory mandatory minimum sentence of 60 months, the stipulated sentence is 60 months." (Plea Agreement at 2-3.) At sentencing, the Court asked Rainford, "you agreed 60 months, five years is what is the appropriate sentence, is that correct?" to which Rainford replied, "Yes, your Honor." (Plea Tr. at 12.) Rainford was aware of the statutory minimum sentence. In fact, he was informed of it numerous times.
The second assertion, that Rainford's attorney induced Rainford to plead guilty by telling Rainford he would receive twenty years at trial, is also without merit. At the plea allocution, the Court asked Rainford, "Have you been induced to offer to plead guilty by any fear or pressure or threat or force or anything like that?" Rainford answered, "No, your Honor." The Court explained to Rainford in some detail his right to continue to plead not guilty and go to trial. (Pl. Tr. 7-9.) Of particular importance, the Court explained to Rainford that by entering a guilty plea "I could sentence you just as if the jury had brought in a verdict of guilty against you." Rainford was then questioned about his understanding of the applicable sentence range after a conviction at trial or through a guilty plea.
Q: This charge in your case carries a maximum sentence, that is the very most under the statute, could be up to 40 years in prison. Do you understand that?
A: Yes, your Honor.
Q: And there is a mandatory minimum sentence of five years in prison. Do you understand that?
A: Yes, your Honor.
(Plea Tr. 9-10.)
Construing Rainford's present allegation consistently with Rainford's statements during the plea allocution, Rainford may be arguing that his attorney advised Rainford that he could be sentenced to twenty years if found guilty at trial. Title 21 U.S.C. §§ 812, 841(a) (1) and 841(b) (1) (B), the statute under which Rainford was charged, carries with it a maximum term of forty years imprisonment. As such, if Rainford were to be found guilty by a jury, he could reasonably have been sentenced to up to forty years imprisonment. "In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the [Government's] case," and counsel "must predict how the facts, as he understands them, would be viewed by a court." McMann, 397 U.S. at 769. Because twenty years was a reasonable prediction, the advice provided by counsel in this case was not unreasonable.
Rainford erroneously equates his situation with that of his codefendant, Cameron. Cameron pleaded not guilty, was convicted by a jury, and was sentenced to a term of seven years. Rainford argues that if he had gone to trial, as Cameron did, he would also have received seven years. He claims that if counsel had informed him prior to pleading guilty that he would have received seven years, he would not have pleaded guilty and would have gone to trial. This argument is simply untenable. Rainford received a sentence that was two years less than the one Cameron received, and the absolute minimum Rainford could have received by statute. This is not ineffective assistance of counsel.
Nor was counsel's performance prejudicial. Rainford's attorney bargained for, and Rainford received, the absolute minimum sentence possible for his crime. Because the Court was bound by the statutory minimum, it is unlikely the proceeding would have resulted differently, and indeed if Rainford had gone to trial, he could have received up to forty years imprisonment.
2. Counsel's Failure to Argue for Downward Departure
Rainford next argues that defense counsel was ineffective because she failed to argue for a downward departure at sentencing, pursuant to U.S.S.G. § 5K2.0, based on Rainford's willingness to be deported after his confinement. Under U.S.S.G. § 5K2.0,
[T]he sentencing court may impose a sentence below the range established by the applicable guidelines only if the court finds that there exists a mitigating circumstance of a kind, or to a degree, that . . . (2) Has not been adequately taken into consideration by the Sentencing Commission in formulating the guidelines; and (3) should result in a sentence different from that described.
U.S.S.G. § 5K2.0(b) (2), (3).
In United States v. Galvez-Falconi, 174 F.3d 255 (2d Cir. 1999), the Second Circuit held that district courts may downwardly depart from the sentencing guidelines, pursuant to § 5K2.0, if a defendant who is unlawfully present in the United States, consents to deportation after imprisonment. Id. at 260. In order for the defendant to receive such a downward departure, he "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.
Rainford is unable to meet the Strickland standard on this claim. The Plea Agreement entered into specifically states that "[t]he parties agree that neither a downward nor an upward departure . . . is warranted. Accordingly, neither party will seek such a departure or seek any adjustment not set forth herein." (Plea Agreement at 3.) At allocution, the Court asked Rainford, "you have agreed that neither a downward departure, less than 60 months, nor an upward departure is warranted" to which he replied, "Yes, your Honor." (Plea Tr. at 12) Given the terms of the Plea Agreement, it would have been unreasonable and prejudicial if counsel had argued for a downward departure. See United States v. Cimino, 381 F.3d 124, 128 (2d Cir. 2004). ("[W]e hold that, when a defendant breaches his plea agreement, the Government has the option . . . to treat it as unenforceable.")
Even more compelling, Rainford has not even suggested that he had a "colorable, nonfrivolous defense to deportation."Galvez-Falconi, 174 F.3d at 260. Therefore, Rainford's claim that his counsel should have argued for a downward departure based on Rainford's willingness to be deported is without merit, and does not satisfy Strickland.
C. Counsel's Failure to Move to Dismiss All Charges
Last, Rainford argues that defense counsel was ineffective by failing to move to dismiss the indictment because, as a Jamaican National, Rainford was not advised of his rights under the Vienna Convention on Consular Relations ("VCCR"); specifically, the right to have his consulate notified of his arrest and to communicate with the consulate. Article 36(1) (b) of the VCCR provides,
With a view to facilitating the exercise of consular functions relating to nationals of the sending State . . . (b) if he so requests, competent authorities of the receiving state shall, without delay, inform the consular post of the sending state if, within its consular district, a national of the State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded to the said authorities without delay. The said authorities shall inform the person concern without delay of his rights under this sub-paragraph.
Vienna Convention on Consular Relations, Apr. 24, 1963, art. 36, ¶ 1, 21 U.S.T. 77, 596 U.N.T.S. 261. Rainford's argument has been foreclosed by the Second Circuit.
In United States v. De La Pava, 268 F.3d 157 (2d Cir. 2001), the Circuit was faced with a situation not unlike the present one. The defendant was charged with illegally re-entering the United States after having been deported. Id. at 160. He pleaded guilty and was sentenced to sixty-five months imprisonment. Id. at 161. On appeal, defendant argued, inter alia, ineffective assistance of counsel, on the ground that his trial counsel failed to move to dismiss the indictment based on the Government's failure to notify him of his rights under Article 36 of the VCCR. Id. Without deciding whether the VCCR confers judicially enforceable rights on individuals, the Circuit squarely held that "a violation of Article 36 of the Vienna Convention on Consular relations is not a basis for the dismissal of an indictment." Id. Based on this, the Circuit reasoned that defendant was unable to satisfy Strickland. Id.
Similarly, in the present petition, Defense counsel's performance did not fall below an "objective standard of reasonableness" by failing to argue for relief that is unavailable. Nor was Rainford prejudiced. If his attorney had moved to dismiss the indictment, the motion would have been denied.
CONCLUSION
Rainford's motion pursuant to § 2255 is denied. As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see Perez, 129 F.3d at 259-60;Lozada v. United States, 107 F.3d 1011, 1017 (2d Cir. 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, 445 (1962). This case is closed and the Court directs the clerk of the court to remove this case from the Court's active docket.
SO ORDERED.