Opinion
09 Civ. 1033 (GEL), 06 Cr. 46 (GEL).
March 9, 2009
OPINION AND ORDER
On September 24, 2007, this Court sentenced defendant Jose Hernandez to 120 months of imprisonment, following his plea of guilty to one count of conspiracy to distribute more than five kilograms of cocaine. He now moves pursuant to 28 U.S.C. § 2255 to vacate that sentence on a variety of grounds. Because "it plainly appears from the motion . . . and the record of prior proceedings that the moving party is not entitled to relief," Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts, the motion will be dismissed.
Hernandez raises three arguments. First, he argues that the lawyers who represented him at his guilty plea were constitutionally ineffective because they "allowed [him] to plead guilty to an amount [of] cocaine that was many times the amount alleged in the indictment." (Mot. ¶ 12A.) "To establish ineffective assistance of counsel . . ., [a defendant] must demonstrate (1) that his counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense. The first component requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. The second requires a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Hemstreet v. Greiner, 491 F.3d 84, 89 (2d Cir. 2007) (relying on Strickland v. Washington, 466 U.S. 668, 687, 694 (1984)) (internal citations and internal quotation marks omitted). Hernandez can establish neither element of this familiar standard.
Hernandez entered a plea agreement stipulating that his offense involved upwards of 150 kilograms of cocaine, which — absent any downward adjustments other than acceptance of responsibility — would have resulted in a guideline recommendation of 168 to 210 months of imprisonment. (8/17/06 Tr. 17 Ex. 2.) He argues that his attorneys were ineffective for urging him to accept such a stipulation, when the indictment only charged that the amount of cocaine involved in the conspiracy was in excess of five kilograms. (D. Mem. 1-2.) Hernandez appears to believe that a lawyer is inherently ineffective for agreeing to such a stipulation. He is simply wrong. The amount charged in the indictment is the amount necessary to state a violation of 21 U.S.C. § 841(b)(1)(A), which subjects a defendant to a maximum sentence of life imprisonment and a minimum sentence of ten years. The actual quantity of cocaine involved in is a fact that affects the guideline sentence recommendation, and need only be proved by a preponderance of the evidence. See United States v. Booker, 543 U.S. 220, 244 (2005). Hernandez offers no reason whatsoever to believe that it was inadvisable for him to admit to the quantity stated in the plea agreement. As the evidence overwhelmingly established that Hernandez had transported truckloads of cocaine, see United States v. Hernandez, No. 06 Cr. 46, 2006 WL 2242318 at *1-2 (S.D.N.Y. Aug. 3, 2006), there is no basis for suggesting that counsel could have argued successfully for a lower amount. Moreover, the plea agreement was highly advantageous to Hernandez, because (as was carefully explained to Hernandez at the time of his guilty plea) it preserved his right to argue for a variety of downward adjustments that could bring his guideline range down to and even below the mandatory minimum sentence for the offense to which he pled guilty. (8/17/06 Tr. 16-20.) Even if there was some deficiency in counsel's decision to recommend that Hernandez agree to this stipulation, that advice cannot have prejudiced him in any way, since he was eventually sentenced not to 168 months or more in prison, but to 120 months, the statutory mandatory minimum sentence for the offense of conviction.
Second, Hernandez argues that a different attorney who represented him at sentencing was ineffective at sentencing and failed to file a notice of appeal as Hernandez instructed him to do. (Mot. ¶ 12B; D. Mem. 2.) Hernandez's claim of ineffectiveness at sentencing consists entirely of the assertion that counsel was ineffective; he does not indicate in any way what he thinks counsel did or did not do that was deficient. In any event, since the Court found that Hernandez was a minor participant in the offense, and sentenced him to the statutory mandatory minimum for the offense to which he pled guilty, despite the Government's argument that the guideline recommendation called for a sentence of at least 168 months, Hernandez can establish neither that his attorney, who succeeded in advocating a reduced sentence, was ineffective, nor that he was in any way prejudiced, since he received the minimum sentence legally available.
Hernandez's claim that counsel failed to file a notice of appeal is refuted by the record. The docket for the case shows that a notice of appeal was timely filed on October 1, 2007. (Doc. # 92.) While the appeal was later dismissed for failure to perfect, Hernandez suffered no prejudice, as the Court of Appeals, on his motion, reinstated the appeal and directed the appointment of new counsel to represent him. See Order in United States v. Gonzalez, No. 07-3730 (2d Cir. Aug. 14, 2008) (Doc. # 98.) Hernandez is correct that where an attorney fails to file a notice of appeal as requested by his client, no prejudice need be shown, and the defendant will be entitled to relief in the form of an order permitting him to bring the appeal of which he was deprived by the attorney's deficient performance. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). But whether or not Hernandez's retained attorney (his third attorney) was guilty of deficient performance in pursuing an appeal, that relief is unnecessary here, as Hernandez has not been deprived of his appeal, but rather continues to have an appeal pending.
Finally, Hernandez argues that he was taken into custody and interrogated without being advised of his rights pursuant toMiranda v. Arizona, 384 U.S. 436 (1966). (Mot. ¶ 12C; D. Mem. 4-6.) Hernandez moved to suppress the resulting statements, and the motion was granted in part and denied in part. Hernandez, 2006 WL 2242318 at *7. By pleading guilty, Hernandez waived any further objection to the admissibility of his statements. See United States ex rel. Glenn v. McMann, 349 F.2d 1018, 1019 (2d Cir. 1965) ("A voluntary guilty plea entered on advice of counsel is a waiver of all non-jurisdictional defects in any prior stage of the proceedings against him."). Even if he had gone to trial and preserved his objections to the Court's pre-trial suppression ruling, § 2255 is not a substitute for appeal, and does not permit defendants to relitigate in the district court issues already decided in pre-trial motions. See Hubbard v. United States, No. 06 Civ. 1176, 2006 WL 3627761, at *3 (S.D.N.Y. Dec. 13, 2006) (Section 2255 cannot be used "to relitigate questions that were raised on direct appeal, or to litigate for the first time issues that could have been raised on direct appeal but were not.").
Accordingly, as all of Hernandez's arguments are manifestly without merit, his motion pursuant to 28 U.S.C. § 2255 is dismissed. Because Hernandez has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. He may, however, pursue any further appellate relief in forma pauperis.
SO ORDERED.