Opinion
03 Civ. 4204 (MBM).
December 29, 2004
EDUARDO RODRIGUEZ, Fort Rix, NJ, Petitioner pro se.
DAVID N. KELLEY, ESQ., United States Attorney for the Southern District of New York.
MARC P. BERGER, ESQ., Assistant United States Attorney New York, NY.
OPINION AND ORDER
Eduardo Rodriguez pleaded guilty before me on June 16, 1999, pursuant to a plea agreement signed that day, to three counts of possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g) (1), one count of possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922 (k), and one count of possessing a semi-automatic assault weapon, in violation of 18 U.S.C. § 922 (v) (1), all set forth in indictment 98 Cr. 1179. In addition, Rodriguez forfeited to the government just under $15,000 in cash found in his apartment at the time of his arrest.
In the plea agreement, the government promised to refrain from further prosecuting Rodriguez for possessing the firearms referred to in the counts to which he pleaded guilty, and to dismiss Count Six of the indictment, which charged possession with intent to distribute 114 packages of heroin. In addition, the parties agreed that the applicable U.S. Sentencing Guidelines range for the counts to which Rodriguez had pleaded guilty was 120 to 150 months. In return, Rodriguez agreed that if sentenced within the agreed-upon range, he would neither appeal nor file any application pursuant to 28 U.S.C. § 2255 to challenge his sentence, nor would he challenge forfeiture of the funds seized at the time of his arrest. Rodriguez was sentenced on September 16, 1999, principally to 132 months' incarceration — within the guideline range to which he and the government had agreed.
Rodriguez did not appeal, but in July 2003 he did file the current petition pursuant to 28 U.S.C. § 2255 challenging the court's subject matter jurisdiction, the legality of the search of his home that resulted in seizure of the firearms at issue, the validity of the sentence imposed on him, and the forfeiture of the almost $15,000 found in his apartment at the time of his arrest. The government opposes, arguing that the petition is untimely, violates the plea agreement Rodriguez signed and from which he benefitted, is procedurally barred because Rodriguez did not appeal, and is devoid of merit as a matter of substance.
Rodriguez purports to petition also pursuant to Federal Rule of Criminal Procedure 32(d), as it existed at the time of his plea, the substance of which is now contained in Rule 11 (d), and has to do with the circumstances in which a defendant may withdraw a guilty plea. However, that Rule deals only with withdrawal of a guilty plea before sentence. Rule 32(e) as it then existed, however, stated explicitly that following sentence, "a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255." Current Rule 11(e) is substantially similar, directing that after sentence, a guilty plea may be set aside "only on direct appeal or collateral attack."
For the reasons set forth below, the requested relief is denied and the petition is dismissed. No certificate of appealability will issue.
I.
This petition meets two insuperable barriers at the outset: It is time-barred and explicitly violates the terms of the plea agreement Rodriguez signed.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended 28 U.S.C. § 2255 to impose a one-year limitations period for post-conviction applications that runs from the latest of four dates, of which only one is relevant here: the date when the judgment of conviction becomes final. Sentence having been imposed on September 16, 1999, and no appeal having been taken, Rodriguez's petition, filed May 13, 2003, obviously is time-barred, absent some equitable reason to toll the limitations period. To establish such a reason, a petitioner would have to show "that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v.Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (quoting Smith v.McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)). When directed by order herein dated June 3, 2003 to give a reason why the case should not be dismissed as time-barred, Rodriguez provided none but simply responded airily that it should not be dismissed "because the Constitutional violations in the present case infringes the Defendant's Right to proper judicial procedure, being the issues at hand require the Honorable Court's analysis." That is not a reason why the limitations period should be tolled, but merely an invitation to disregard the limitations period. I decline to do so.
Before I accepted Rodriguez's guilty plea, he was placed under oath and care was taken to assure that he was competent to enter a plea (6/16/99 Tr. 2-4), and that he had had enough time to discuss the case with his lawyer, with whose representation he was satisfied. (Id. at 4-5) Moreover, Rodriguez acknowledged that he had signed the plea agreement, had reviewed it with his lawyer and understood it before he signed it, and needed no explanation of its terms. (Id. at 11-12) Despite Rodriguez's acknowledgment that he understood the terms of the agreement, I questioned him explicitly as to his understanding of his agreement about the applicable Sentencing Guidelines range, as follows:
THE COURT: One of the features of this letter is you have an agreement with the government on what the guidelines range is, correct?
THE DEFENDANT: Yes.
THE COURT: In fact, [it's] the one I used in my illustration [of the guidelines], 120 to 150 months?
THE DEFENDANT: Yes.
THE COURT: Do you understand that that agreement is binding on you, and it's binding on the government, but it's not binding on me. I have my own obligation to decide what the correct guideline range is. I am not saying I am going to come up with anything different, but if I do, then I am not going to let you withdraw your plea, even if the guideline range that I come up with is higher than the one you agreed to with the government. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: What this does protect you against is if I sentence you within that range, then the government cannot appeal claiming it should have been higher. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Just the same way, if I sentence you within that range, you can't appeal claiming that it should have been lower. Do you understand that?
THE DEFENDANT: Yes.
(Id. at 12-13) Rodriguez does not even attempt to explain why his plea agreement should not be enforced, with the result that this petition would be dismissed, other than the substantively inadequate allegations he makes, which are treated below. Plea agreements are enforced according to principles of contract law.See Santobello v. New York, 404 U.S. 257, 262-63 (1971). As shown above, the record reflects that petitioner entered into this particular contract knowingly and willingly, and accepted the benefits that went with doing so, which included limiting his liability for the crimes to which he pleaded guilty and escaping prosecution for the heroin found in his possession. One of the considerations the government bargained for was not having to deal with applications of the sort presented here. It is too late for the government to get the full benefit of its bargain, but it is not too late for the court, as a third-party beneficiary, to get some part of that benefit by dealing in summary fashion, as I will below, with the substance of Rodriguez's claims.
Rodriguez is not the first defendant to breach an agreement in this fashion, by further litigating what he had agreed to litigate no further, and no doubt will not be the last. For the same reason that the efforts of others failed, so too does his.See, e.g., United States v. Garcia, 166 F.3d 519, 521 (2d Cir. 1999) (agreement not to appeal enforced); United States v.Salcido-Contreras, 990 F.2d 51, 52-53 (2d Cir. 1993) (same);Rodriguez v. United States, 185 F. Supp. 2d 311, 312-13 (S.D.N.Y. 2002) (agreement not to file § 2255 petition enforced).
For the above reasons alone, the writ can be denied and the petition dismissed.
II.
Even if Rodriguez's petition were not barred by the passage of time and by the terms of his plea agreement, the arguments he advances would be procedurally barred, and in any event are utterly lacking in merit.
Rodriguez did not raise on appeal any of the claims he now advances. Therefore, in order to press these claims, he must show either cause for that failure and actual prejudice, or that he is actually innocent of the charges. See Bousley v. United States, 523 U.S. 614, 622 (1998); DeJesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998). He has shown neither.
A. Subject Matter Jurisdiction
Turning to the substance of Rodriguez's claims, he argues first that this court lacked subject matter jurisdiction over the charges against him because unlawful possession of firearms is essentially a state law offense, with no substantial connection to interstate commerce, and that the charges therefore were void. Rodriguez's argument is defeated by Second Circuit authority directly to the contrary. The statute barring possession of a weapon that had previously traveled in interstate commerce by a person previously convicted of a felony has been held to be within the power of Congress to regulate interstate commerce.See United States v. Sorrentino, 72 F.3d 294, 296 (2d Cir. 1995). The firearm need only have traveled previously in interstate commerce and need not be traveling in commerce when possessed by the defendant. See United States v. Carter, 981 F.2d 645, 647 (2d Cir. 1992).
B. Validity of Search
Second, Rodriguez challenges the search of his apartment that disclosed the weapons. However, as the court stated after a suppression hearing:
Parolees, like the defendant, do not enjoy "the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special parole restrictions." Morrissey v. Brewer, 408 U.S. 471, 480 (1972). One consequence of that condition of liberty is felt in the Fourth Amendment context. To the extent that a parole officer conducts a warrantless search of a parolee's residence pursuant to a state law or regulation that itself satisfies the Fourth Amendment's reasonableness requirement, evidence seized in the course of such a search can be used in an independent criminal proceeding against the parolee. See Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). . . . In the present case, the parole officers conducted a warrantless search of the defendant's apartment based on information provided by NYPD detectives that he was violating several conditions of his parole. That search was conducted pursuant to, and within the limits of, the New York State Division of Parole Policy and Procedures Manual, which allows a parole officer to search a parolee's apartment without a warrant only where that officer "has an articulable reason for doing so that is rationally related to the circumstances of the particular case and the officer's duty to supervise." [citation omitted]. . . . This restriction, along with the others imposed by New York law on parole officers' abilities to search parolees' residences, satisfies the Fourth Amendment's reasonableness requirement. Cf. Griffin, 483 U.S. at 875 (upholding a warrantless search conducted pursuant to a state law which permitted such a search where the probation officer had "reasonable grounds" to believe that contraband was present).
(3/11/99 Tr. at 50-51) Moreover, as noted at the suppression hearing, the officers who searched Rodriguez's apartment had more specific information furnished by NYPD detectives than did the probation officer in Griffin, whose search nonetheless was sustained. (Id. at 53) Nor was there any subterfuge here or use of probation officers as stalking horses for police officers. (Id. at 53-55) Rodriguez's objection to the admissibility of the evidence seized from his apartment is, for the above reasons, without foundation.
C. Sentence
Rodriguez's challenge to the computation of his sentence is no more substantial than his challenges to the court's jurisdiction and the search. His argument is, essentially, that his possession of three weapons at the same time was one offense, and that charging him in multiple counts affected his sentence adversely. He suggests as well that he was placed in jeopardy more than once for the same offense, and therefore that his prosecution in this fashion violated the Double Jeopardy Clause of the Fifth Amendment. However, the only way in which possession of multiple weapons affects the sentence is in computation of the offense level, which depends not on the number of counts but rather on the number of weapons possessed. Possession of between three and seven weapons yields a one- or two-level enhancement. See U.S.S.G. § 2k2.1(b) (1998)
Rodriguez's double jeopardy argument is barred by his plea. As our Court of Appeals has explained, because the rights contained in the Double Jeopardy Clause are "personal," they can be waived, including by entry of a guilty plea, which is "`an admission that he committed the crime charged against him,' rather than merely `a confession which admits that the accused did various acts.'" Therefore, "`a defendant who pleads guilty to two counts with facial allegations of distinct offenses concede[s] that he had committed two separate crimes.'" United States v. Leyland, 277 F.3d 628, 631-32 (2d Cir. 2002) (citations and parentheticals omitted).
D. Forfeiture
Rodriguez contests the validity of the forfeiture assessed against him because it was not set forth in the indictment and therefore, he argues, he did not receive sufficient notice of it. The argument is without merit because the forfeiture was set forth in the plea agreement, which Rodriguez signed and which provided him with all the notice that due process requires.
For an interested party to have received notice consistent with due process the "`notice [must be] reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. . . . [W]hen notice is a person's due . . . [t]he means employed [to provide notice] must be such as one desirous of actually informing the absentee might reasonably adopt. . . .'" Weng v. United States, 137 F.3d 709, 713 (2d Cir. 1998) (quoting Mullane v. Cent. Hanover Bank Trust Co., 339 U.S. 306, 314-15 (1950)). The notice Rodriguez received was set forth as follows in the plea agreement:
[I]t is understood that the defendant will not contest the administrative and/or civil forfeiture pursuant to 21 U.S.C. § 881(a)(6) of the following moneys which were furnished or intended to be furnished by any person in exchange for a controlled substance, or were proceeds traceable to such an exchange, or were used and intended to be used to facilitate any narcotics violation: approximately $14,994.00 seized from the apartment of the defendant at the time of his arrest in connection with the indictment. (Dec. 3, 2003, Letter of Marc P. Berger, Esq. to the Court, Ex. D at 4)
Notice of the forfeiture having been contained in a document Rodriguez signed and to which he agreed, he cannot successfully dispute the sufficiency of the notice he received with respect to the forfeiture.
* * *
For the above reasons, neither Rodriguez's conviction nor his sentence will be set aside, and the petition is dismissed. Reasonable jurists could not differ with respect to the result here, and Rodriguez did not make a substantial showing that he had been denied a constitutional right. Therefore, no certificate of appealability will issue.