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United States District Court, S.D. New YorkJan 25, 2005
No. 04 Civ. 1111 (SAS). (S.D.N.Y. Jan. 25, 2005)

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No. 04 Civ. 1111 (SAS).

January 25, 2005

Pedro Santana, FCI Loretto, Loretto, PA, Petitioner (Pro Se).

Michael Farbiarz, Assistant United States Attorney, New York, New York, for Respondent.


Pedro Santana, proceeding pro se, has moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In his motion, petitioner argues that his former attorney was ineffective in failing to: (1) oppose imposition of the two-point gun enhancement pursuant to United States Sentencing Guidelines ("USSG") § 2D1.1(b); (2) oppose the two-point enhancement to petitioner's criminal history calculation pursuant to USSG § 4A1.1(d); and (3) file a timely Notice of Appeal despite allegedly being instructed to do so. For the following reasons, petitioner's motion is denied.


On August 30, 2002, petitioner pled guilty before this Court to violating 21 U.S.C. § 846(b)(1)(A). See August 30, 2002 Plea Allocution Transcript ("Plea Tr.") Ex. A to the to the June 28, 2004 Letter from AUSA Michael Farbiarz ("Farbiarz Ltr."). During his plea allocution, petitioner stated that he had distributed at least one kilogram of heroin and at least five kilograms of cocaine from 1993 through 2001. See Plea Tr. at 19-22.

Petitioner pled guilty pursuant to a Plea Agreement. See 8/23/02 Plea Agreement, Ex. B to the Farbiaz Ltr. Petitioner and his then-attorney, Martin R. Stolar, signed the Plea Agreement. See Plea Agreement at 5. Petitioner's Plea Agreement contained a waiver clause whereby petitioner explicitly agreed that he "will 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." Id. at 4.

Petitioner's sentencing range was calculated based on certain stipulations entered into by the parties as contained in the Plea Agreement. See id. at 3. Two of those stipulations are relevant here. First, the parties stipulated that a two-level criminal history enhancement was warranted pursuant to USSG § 2D1.1(b)(1) because a firearm was possessed during the charged conspiracy. See id. at 2. Second, the parties stipulated that the petitioner violated 21 U.S.C. § 846(b)(1)(A) while on probation, thereby triggering the criminal history category enhancement set forth in USSG § 4A1.1(d). See id. In particular, the parties stipulated that on September 13, 1989, petitioner was convicted of attempted criminal possession of a controlled substance in New York State Supreme Court and sentenced to five years probation. See id.

At his plea allocution, petitioner stated under oath that he understood that his offense level was being increased two levels because a firearm was used in the charged conspiracy. See Plea Tr. at 14. In addition, petitioner stated that he understood that he was in Criminal History Category II based, in part, upon the fact that his earlier term of probation did not end until February 1993, after the onset of the narcotics conspiracy to which he pled guilty. See id. at 16.

In addition, petitioner stated at his plea allocution that he had read and understood the Plea Agreement, that he had reviewed it with his attorney, and that he did not have any questions about the Plea Agreement. See id. at 17. When asked if he was satisfied with his attorney, petitioner responded "Yes." Id. at 6. Petitioner also stated that he understood that by signing the Plea Agreement he was foregoing his right to challenge any sentence within the stipulated sentencing range of 235 to 293 months in custody. See id. at 18 ("Q. Do you understand that you have agreed to waive any right to appeal or to in any other way attack [your] sentence which is within this guideline range or below this guideline range. Do you understand that? A. Yes.").

Following his allocution, the Court accepted petitioner's guilty plea, see id. at 25, and a pre-sentence report ("PSR") was prepared. The PSR noted that petitioner was convicted in 1989 in New York State Supreme Court and sentenced to five years probation. See PSR at 4. The PSR also set forth substantial, specific evidence that demonstrated that firearm use was an integral part of the charged conspiracy. See id. at 6-8.

At his sentencing hearing, petitioner stated that he had reviewed the PSR and had no objections to it. See December 30, 2002 Sentencing Transcript ("Sentencing Tr."), Ex. C to the Farbiarz Ltr. at 2-3. This Court then adopted the findings of fact in the PSR, see id. at 3, and sentenced petitioner to a term of imprisonment of 235 months, which was at the low end of the stipulated Guidelines range. See id. at 5.


A. Section 2255 Standard

Section 2255 allows a convicted person being 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 sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255. 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.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

B. Ineffective Assistance of Counsel

The Sixth Amendment guarantees a fair trial and competent counsel in all criminal prosecutions. See U.S. Const. amend. VI. The Sixth Amendment "`stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not still be done.'" Gideon v. Wainwright, 372 U.S. 335, 343 (1963) (quoting Johnson v. Zerbst, 304 U.S. 458, 462 (1938)). To prove that counsel was constitutionally ineffective, a petitioner must satisfy the two-part test established in Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner must first show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms." Id. at 688. The second prong requires a petitioner to "affirmatively prove prejudice," i.e., to demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "Failure to make a meritless argument does not amount to ineffective assistance." United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999).


1. Waiver in General

A. Waiver of Collateral Attack Rights

Petitioner asserts that his sentence was improper. In particular, petitioner contends that his offense level should not have been enhanced by USSG § 2D1.1(b)(1) and that his criminal history category should not have been enhanced pursuant to USSG § 4A1.1(d). Petitioner argues that his attorney was ineffective for failing to make these arguments. See Memorandum of Law in Support of Motion Pursuant to 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence ("Pet. Mem.") at 3-5. Although petitioner couches his first two arguments in terms of ineffective assistance of counsel, they are actually challenges to his sentence. Therefore, these arguments are foreclosed by the waiver provision contained in his Plea Agreement. See United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998) (holding that a section 2255 petitioner may not avoid the effect of his forfeiture of collateral attack rights by "dress[ing] up" his sentencing challenges as purported violations of the Sixth Amendment).

There was nothing difficult or confusing about the waiver language contained in the Plea Agreement to suggest that Santana might not have understood its consequences. On the contrary, the waiver provision was explicit and straightforward.

The Second Circuit has "long enforced waivers of direct appeal rights in plea agreements." Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001). "The reasons for enforcing waivers of direct appeal . . . lead . . . to the same conclusion as to waivers of collateral attack under § 2255." Id. However, "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." United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001) (per curiam). Similarly, although "[t]here is no general bar to a waiver of collateral attack rights in a plea agreement," such waivers are unenforceable where the asserted ground for challenging the sentence is ineffective assistance of counsel in connection with plea negotiations or the agreement itself. Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002) ("[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."), cert. denied, 537 U.S. 1146 (2003).

"The rationale is that `the very product of the alleged ineffectiveness' cannot fairly be used to bar a claim of ineffective assistance of counsel." Hernandez, 242 F.3d at 114 (quoting Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999)).

Here, petitioner does not contend that the forfeiture of his right to collaterally attack his sentence was itself somehow improper — either because the forfeiture was insufficiently knowing and voluntarily or because it was predicated upon ineffective assistance of counsel. Petitioner does not seek to withdraw his guilty plea, nor does he claim that his Plea Agreement was entered into involuntarily. From his accompanying memorandum of law, it is clear that Santana seeks to be re-sentenced without the gun enhancement or the criminal history category enhancement. See Pet. Mem. at 4 ("It is my belief that upon review of the record and the government's contentions, it will become abundantly obvious to this Court that my sentence was incorrectly enhanced as a result of unconstitutional representation of counsel.") and 5 ("I ask that I be permitted to have this issue [of the enhancements] re-examined as the prejudice is substantial.") ("I was denied my right to present these issues that I hereby raise today strictly as a result of ineffective assistance of counsel"). Having received the benefit of the bargain embodied in his Plea Agreement, it would be inappropriate to permit petitioner to unilaterally rescind a portion of that bargain, namely, his commitment to forego collaterally attacking any sentence within the stipulated sentencing range.

2. Petitioner's Waiver Was Knowing and Voluntary

A guilty plea must represent "a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31 (1970). The voluntariness of a plea of guilty, however, should be determined by considering all of the relevant circumstances. See Brady v. United States, 397 U.S. 742, 749 (1970). Assuming petitioner's attorney failed to adequately explain the Plea Agreement's waiver provision, that explanation was provided by the Court at his plea allocution. If petitioner truly did not understand the consequences of his plea after his colloquy with this Court, he should not have pled guilty. By pleading guilty after a thorough and detailed allocution, petitioner has foreclosed any claim that his waiver of appellate and collateral challenge rights was not knowing, intelligent and voluntary.

This conclusion is compelled by the Second Circuit's decision in Garcia-Santos. In Garcia-Santos, the Second Circuit affirmed this Court's dismissal of a section 2255 motion, finding that "Garcia-Santos's plea agreement was entered into knowingly and voluntarily, and with awareness of his waiver of appeal and collateral attack." Garcia-Santos, 273 F.3d at 508. I dismissed the motion in Garcia-Santos on the ground that the petitioner pled guilty under a plea agreement in which he expressly agreed not to attack his sentence under section 2255 if he was sentenced within or below a stipulated range — and the sentence imposed was within that range. See id.

The Second Circuit applied five factors in affirming my dismissal. First, as in the instant case, the petitioner in Garcia-Santos signed the plea agreement. See id. Second, the petitioner in Garcia-Santos "stated to the magistrate judge that he had read and understood the plea agreement." Id. Here, petitioner made a similar statement. See Plea Tr. at 17. Third, the Garcia-Santos petitioner "did not attempt to appeal his sentence, even though he had been told by the sentencing judge that he had the right to appeal." Garcia-Santos, 273 F.3d at 508. Here, no appeal was taken even though I advised petitioner at sentencing that he had a right to appeal. See Sentencing Tr. at 8. Fourth, in Garcia-Santos, the petitioner "did not claim, in his § 2255 motion, that he had not understood the waiver contained in his plea agreement," Garcia-Santos, 273 F.3d at 508, and no such claim is made here by petitioner.

In Garcia-Santos, there was also a fifth factor regarding petitioner's motion for reconsideration of the court's denial of his section 2255 motion. The motion for reconsideration was denied and the Second Circuit noted that "even in his petition for reconsideration, [the petitioner] did not assert explicitly or under oath that at the time of his plea he did not understand that he was giving up his right to appeal and petition under § 2255." Garcia-Santos, 273 F.3d at 508. This fifth factor is not applicable here as petitioner did not file a motion for reconsideration.

Application of the Garcia-Santos factors supports dismissal of the instant motion. Accordingly, the Plea Agreement, and its waiver of appeal and collateral attack rights, cannot be vitiated on grounds that it was not knowing and voluntary.

3. Petitioner Cannot Show That His Forfeiture Was Predicated on Ineffective Assistance of Counsel

At no point does petitioner assert that he entered into the Plea Agreement without the benefit of effective assistance of counsel. The closest petitioner arguably comes to pressing such a claim is his assertion that his attorney told him that he would not be prejudiced by the two point gun enhancement. See Pet. Mem. at 4 ("[A]lthough I had explained to my attorney that I never saw any firearm, he just told me to take it easy, I wouldn't be prejudiced, yet . . . I was.").

Assuming, arguendo, that this assertion can be construed as an argument that the Plea Agreement was entered into without the benefit of effective assistance of counsel, it is plainly unavailing. As an initial matter, even if petitioner's attorney made the above statement, there is no evidence that the statement was made prior to the execution of the Plea Agreement such that petitioner's waiver of his rights was somehow predicated on it. Moreover, any suggestion from petitioner that he relied upon his attorney's advice that he would not receive a longer sentence based upon the gun enhancement is flatly contradicted by a number of sworn statements made by petitioner in open court. For example, at his plea allocution, the following colloquy ensued:

Q. In this plea agreement, which you signed, the parties stipulated or agreed to the following guidelines range. The guideline range you agreed to says that you conspired with others, which means agreed with others, to distribute at least 30 kilograms of heroin, which sets the base offense level at level 38. And then that's increased by two more levels because a firearm, a gun, was used in the conspiracy. So that sets the offense level at 40. But then because you are pleading guilty and accepting responsibility for the crime three levels are subtracted. So the final offense level is 37. Do you understand that?

A. Yes.

Q. You understand how I reached it?

A. Yes, yes.

Plea Tr. at 14 (emphasis added). This statement directly contradicts his current assertion that, because of his attorney's advice, he had no such understanding. In a similar vein, petitioner stated that he understood the Plea Agreement, which explicitly describes the gun enhancement, when he signed it. See id. at 17.

Furthermore, petitioner told the Court that no promises were made to him beyond those set forth in the Plea Agreement. See id. This statement necessarily excludes the possibility that petitioner's attorney made a promise to him regarding the length of his sentence. Finally, petitioner made the following statements with regard to sentencing estimates:

Q. Do you understand that if your attorney or anyone else has attempted to estimate or predict what your sentence will be, that their estimate or prediction could be wrong. Do you understand that?

A. Yes.

Q. Do you also understand that even if your sentence is different from what your attorney or anyone else told you it might be, or if it is different from what you expect you will still be bound to your guilty plea and you will not be allowed to withdraw your guilty plea. Do you understand that?

A. Yes.

Id. at 16-17. These statements negate any claim that petitioner was acting in reliance upon his attorney's alleged guarantee that the gun enhancement would not affect the length of his sentence.

In these circumstances, the claim that petitioner received ineffective assistance of counsel in connection with the plea process can be summarily dismissed. Petitioner simply cannot carry his burden of showing ineffectiveness of counsel on the basis of a self-serving, post hoc assertion that contradicts a number of his sworn, in-court statements. As the Supreme Court held in the collateral attack context:

Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.
Blackledge v. Allison, 431 U.S. 63, 74 (1977) (emphasis added).

In sum, petitioner's Plea Agreement, and its waiver of appellate and collateral attack rights, was entered into knowingly and voluntarily by petitioner. Nor did petitioner receive ineffective assistance of counsel with regard to the plea process and the resulting Plea Agreement. Accordingly, petitioner's first two ineffective assistance of counsel claims which are, in effect, challenges to his sentence are foreclosed by the waiver provision contained in his Plea Agreement.

B. Petitioner's Remaining Ineffective Assistance Claim

Petitioner asserts, in conclusory fashion, that he directed his attorney to file an appeal on his behalf, but that his attorney failed to do so. If petitioner could carry his burden of proving that this assertion is true, counsel's performance would have been constitutionally ineffective. See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) ("We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable . . . This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel's failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant's wishes."). However, petitioner's bare bones " Flores-Ortega" allegation is belied by the record. In connection with this motion, petitioner's former counsel, Martin R. Stolar, submitted an Affidavit that flatly contradicts the assertion that petitioner directed his attorney to file a Notice of Appeal. Mr. Stolar states the following in his Affidavit:

On June 24, 2004, I reviewed relevant portions of my United States v. Pedro Santana, 00 Cr. 1181 (SAS) case file. Based on my review of those materials, and my independent memory of the case, I can say with full confidence that I have no recollection of Mr. Santana ever directing me or asking me to file an appeal on his behalf. In addition, I have no written request from him in my case file where it would normally be if I had received it.

June 25, 2004 Affidavit of Martin R. Stolar, Ex. E to the Farbiarz Ltr. This sworn statement cuts strongly in favor of summary dismissal of petitioner's claim that he directed his attorney to file a Notice of Appeal. See, e.g., Benvenuto v. United States, No. 01-CV-2642, 2001 WL 1590515 at *4-5 (E.D.N.Y. Nov. 7, 2001) (denying section 2255 petitioner's Flores-Ortega claim without an evidentiary hearing based on trial attorney's letter to the Court); Morris v. United States, No. 99 Civ. 3497, 98 CR 436, 2000 WL 1459774 at *2 (S.D.N.Y. Sept. 29, 2000) (similar); Nix v. United States, 111 F. Supp. 2d 186, 190 (E.D.N.Y. 2000) (denying section 2255 petitioner's Flores-Ortega claim without an evidentiary hearing where "[the petitioner's] thoroughly self-serving assertion is contradicted by a declaration made under penalty of perjury by an officer of the Court that no such request [for the filing of a notice of appeal] was made.").

Assuming, arguendo, that petitioner did instruct his former attorney to file a Notice of Appeal and his attorney failed to do so, his ineffective assistance of counsel claim would fail for a different reason, namely, the failure to show prejudice. "Generally, a defendant suffers prejudice if there is a reasonable probability that his reliance on counsel's ineffective assistance affected the outcome of the proceedings." Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003). As the Supreme Court explained in Strickland:

In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.
466 U.S. at 697.

Petitioner entered into a Plea Agreement in which he agreed to forego his rights to appeal and collaterally challenge any sentence within the stipulated sentencing range. Even if petitioner's former attorney did as he allegedly requested and filed a timely Notice of Appeal, the appeal would have been summarily dismissed by the Second Circuit in accordance with the terms of the Plea Agreement. Accordingly, petitioner cannot show that he was prejudiced by his attorney's failure to do something that necessarily would have proven to be futile. Therefore, aside from factual evidence proffered by the Government contradicting petitioner's purported request that a Notice of Appeal be filed, lack of prejudice is an alternative basis on which to dismiss petitioner's third ineffective assistance claim.

C. Certificate of Appealability

Finally, there is the question of 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." 28 U.S.C. § 2253(c)(2). "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.'" 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)). Petitioner has made no such showing in this case. Accordingly, this Court denies a certificate of appealability.


For the foregoing reasons, the motion to vacate, set aside, or correct Santana's sentence is denied. Because petitioner has failed to make "a substantial showing of the denial of a constitutional right," this Court will not issue a certificate of appealability. 28 U.S.C. § 2253(c)(2); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Clerk of the Court is directed to close this case.