Opinion
96 Cr. 126 (JFK), 01 Civ. 5528 (JFK)
December 4, 2003
ORDER
Preliminary Statement
On January 7, 2000, defendant Rudy Ventura ("Ventura" or "Petitioner") was convicted by a plea of guilty of distribution of, and possession with intent to distribute, approximately sixty-four grams of a mixture and substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. § 812, 841(a) 841(b)(1)(A) and 18 U.S.C. § 2. Presently before the Court is Ventura's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth herein, Ventura's motion is denied.
Facts
In November 1996, Ventura was charged in a fourteen count indictment ("Indictment") with conspiracy to distribute narcotics and other associated crimes. On January 7, 2000, pursuant to a plea agreement, Ventura pled guilty to Count Fourteen of the Indictment. Count Fourteen charged Ventura with distribution of, and possession with intent to distribute, approximately sixty-four grams of a mixture and substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. § 812, 841(a), 841(b)(1)(A) and 18 U.S.C. § 2. As part of his plea agreement, Ventura waived his right to appeal any sentence within a stipulated guidelines range of seventy to eighty-seven months imprisonment and five years of supervised release. Written Plea Agreement ("Plea Agreement") at 5, United States v. Ventura (No. 96 Cr. 126).
Despite agreeing not to, Ventura appealed the conviction and sentence. On December 8, 2000, the Second Circuit dismissed the appeal on the grounds that Ventura had waived his right to appeal in his plea agreement, and, ruling in the alternative, summarily affirmed on the ground that there were no non-frivolous appellate issues. On June 19, 2001, Ventura filed the instant motion to vacate his conviction and sentence, pursuant to 28 U.S.C. § 2255.
Discussion
I. Plea Waiver
As part of his plea agreement, Ventura waived the right to attack his conviction collaterally. Plea Agreement at 1, United States v. Ventura (No. 96 Cr. 126). The Second Circuit has consistently upheld defendants' waivers of their rights to appeal or collaterally attack their convictions. United States v. Yemitan, 70 F.3d 746, 748 (2d Cir. 1995), aff'd, 1996 U.S. App. LEXIS 27133 (2d Cir. Oct. 15, 1996); see also United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995)("Without alleging a constitutional or jurisdictional violation, it is an anathema to allow one who has voluntarily waived his right to appeal to attack the sentence collaterally." (quoted in Trujillo v. United States, Nos. 92 Civ. 6791(PKL), 91 Cr. 575 (PKL), 1993 U.S. Dist. LEXIS 8456, *9-10 (S.D.N.Y. June 21, 1993),aff'd, 33 F.3d 49 (2d Cir. 1994)). Relief from a waiver of appeal is generally only available pursuant to 28 U.S.C. § 2255 when there has been a complete injustice. United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoted in Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (per curiam)).
As part of Ventura's plea agreement he waived his right to file a collateral appeal. In his motion, Ventura offers no proof of any constitutional or jurisdictional violations. Therefore, because Ventura made no showing of any constitutional or jurisdictional injustices, his waiver of appeal bars the present motion.
Ventura also argues his plea agreement should be vacated because to plead guilty and waive any or all opportunities to challenge a plea before the sentence is even imposed is unconscionable. He contends these types of plea agreements should not be accepted by courts. The Second Circuit, however, has held it is "well established that a knowing and voluntary waiver of the right to appeal is generally enforceable."United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001) (per curiam). A knowing and voluntary waiver of the right to appeal is enforceable if the waiver "was specifically the subject of colloquy between the district court and the defendant at the time of the guilty plea hearing". U.S. v. Santiago 2003 U.S. App. LEXIS 20789, *4 (2d Cir. Oct. 9, 2003). During Ventura's plea colloquy, he testified he understood he was waiving the right to appeal and that his plea of guilty was voluntary. Plea Record at 9-10, United States v. Ventura (No. 96 Cr. 126). Ventura offers no evidence to dispute his testimony during the plea colloquy that his plea was knowing and voluntary. Thus, Ventura's waiver was made knowingly and voluntarily and is, therefore, valid.
II. Ineffective Assistance of Counsel
Ventura alleges that he was the victim of ineffective counsel. Ventura's claim of ineffective counsel is predicated on his belief that his lawyer lacked sufficient knowledge of the United States Sentencing Guidelines and, therefore, failed to properly attack his sentence. The Supreme Court has articulated a two-pronged test to determine whether a criminal defendant received ineffective assistance of counsel. Under this test, articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), Ventura 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 (2d Cir. 1998) (per curiam). The Strickland Court specifically recommended that the court use the second prong of theStrickland test if it is easier to dispose of an ineffective counsel claim on grounds of lack of sufficient prejudice.Strickland, 466 U.S. at 697.
Ventura claims the length of his sentence would have been reduced had his lawyer petitioned the Court to consider his personal circumstances. Petitioner's Response ("Response") at 2, United States v. Ventura (No. 96 Cr. 126). In considering an ineffective counsel claim, a court need not accept a petitioner's uncorroborated, self-serving testimony as true. Slevin v. United States 71 F. Supp.2d 348, 356 n. 7 (S.D.N.Y. 1999),aff'd, 234 F.3d 1263 (2d Cir. 2000); see also Williams v. United States, 481 F.2d 339, 346 (2d Cir. 1973), cert. denied, 414 U.S. 1010 (1973); United States v. Follette, 416 F.2d 156, 163-64 (2d Cir. 1969), cert. denied, 397 U.S. 1000 (1970). Although a convicted felon's self-serving testimony is not likely to be credible, the court bears the responsibility of actually making a credibility finding in each case. See Cullen v. United States, 194 F.3d 401, 407-08 (2d Cir. 1999); see also Purdy v. Zeldes, 337 F.3d 253 (2d Cir. 2003). Also, in the Second Circuit, it is established that the failure of the petitioner to submit an affidavit from counsel corroborating an ineffective assistance of counsel claim provides sufficient justification to dismiss a petition to vacate a guilty plea. See, e.g., United States v. Santelises, 476 F.2d 787, 790 n3 (2d Cir. 1973); United States v. Welton, 439 F.2d 824, 826 (2d Cir. 1971), cert. denied 404 U.S. 859 (1971); Slevin, 71 F. Supp.2d at 357. Ventura did not submit an affidavit from his counsel to corroborate his ineffective assistance of counsel claim.
Ventura has given no reasons why his personal circumstances should have warranted a downward departure from the sentencing guidelines. Ventura supplied no evidence, as required by Second Circuit case law, to support his self-serving testimony of ineffective assistance of counsel. There is no showing that counsel's performance was unprofessional. Therefore, Ventura has failed to show prejudice. Because Ventura has failed to satisfy the second prong of the Strickland test, this Court need not look at the first prong of the Strickland test. Ventura's ineffective counsel claim is denied.
III. Apprendi Claim
Ventura also alleges his constitutional rights were violated based on the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Principles from Apprendi cannot be applied retroactively to a claim presented on collateral review. Coleman v. United States, 329 F.3d 77, 90 (2nd Cir. 2003) (Apprendi does not apply retroactively because the rule was "new" and "procedural", but not "watershed").
Ventura's conviction became final when his time to seek certiorari in the United States Supreme Court expired on March 8, 2001. Ventura's firstApprendi claim is in the form of this collateral attack, dated June 19, 2001, after his time to seek certiorari had expired. Therefore, the Apprendi claim is unavailable to Ventura.
Even if the Apprendi claim were available to Ventura, his case does not present an Apprendi issue. Ventura alleges 21 U.S.C. § 841 is unconstitutional on its face based onApprendi. The Second Circuit rejected this argument joining every other circuit to have addressed it. United States v. Outen, 286 F.3d 622, 634 (2d Cir. 2002). Therefore, Ventura's constitutional challenge to 21 U.S.C. § 841 is rejected.
In addition, Ventura alleges that the Apprendi principles require a district judge to advise a defendant who pleads guilty to a drug offense that the government would have to prove beyond a reasonable doubt any quantity of drugs that boosts the defendant's maximum sentence if the case were to proceed to trial. Apprendi does not apply, however, to sentences within the applicable statutory maximum.United States v. Norris, 281 f.3d 357, 359 (2d Cir. 2002),cert. denied, 536 U.S. 949 (2002); see also United States v. Thomas, 274 F.3d 655, 660 n3 (2d Cir. 2001) (noting the constitutional requirement to include quantity in an indictment will only arise in cases where the sentence is above a statutory maximum);United States v. King, 2003 U.S. App. LEXIS 19280, *5 (2d Cir. 2003) (stating that circuit and Supreme Court precedents make clear that imposition of a sentence that does not exceed the statutory maximum does not trigger Apprendi's requirements).
Ventura's reliance on Apprendi is misplaced. Ventura pleaded guilty to 21 U.S.C. § 841 (b)(1)(A) which caries a statutory maximum penalty of life imprisonment. He was sentenced to seventy-two months imprisonment. Apprendi, therefore, does not apply because Ventura's sentence is far below the statutory maximum.
Ventura further contends that the indictment to which he pled was defective because it failed to set forth the quantity of drugs he was charged with possessing. For a judge to accept a guilty plea, the plea must be knowing and voluntary. U.S.C.S. Fed. Rules Crim. Pro. R. 11(b) (2). In order for a guilty plea to be made knowingly and voluntarily, the defendant must receive notice of the true nature of the charge. Such notice requires something other than a mere recitation of the technical elements of the offense. Henderson v. Morgan, 426 U.S. 637, 644 (1976); see also Frederick v. Warden, 308 F.3d 192, 197 (2nd Cir. 2002), cert. denied, 537 U.S. 1146 (2003) (noting notice can be sufficiently provided in various ways). The court is given a wide degree of discretion in deciding the best method to inform and ensure the defendant's understanding of the charge. United States v. Defusco, 949 F.2d 114, 117 (4th Cir. 1991), cert. denied, 503 U.S. 997 (1992).
During his plea colloquy, Ventura testified he received the Indictment, in particular Count Fourteen, read it with his attorneys and had his attorneys explain it to him. Plea Colloquy at 4, United States v. Ventura (No. 96 Cr. 126). Count Fourteen explicitly stipulated the quantity of drugs Ventura was charged with as "fifty grams and more of cocaine." Plea Agreement at 1, United States v. Ventura (No. 96 Cr. 126). Therefore, Ventura's plea was knowing and voluntary because he knew the quantity of drugs he was charged with even though the specific drug quantity was not mentioned during the plea colloquy. As such, and for the reasons set forth above, Petitioner's Apprendi claim is without merit.
CONCLUSION
Ventura's 28 U.S.C. § 2255 motion is hereby denied in its entirety. This case is ordered closed and the clerk of the Court is instructed to remove it from the Court's active docket.
SO ORDERED.