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HERNANDEZ v. UNITED STATES

November 11, 1992

GERALDO HERNANDEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: MICHAEL B. MUKASEY

 MICHAEL B. MUKASEY, U.S.D.J.

 Geraldo Hernandez has petitioned pursuant to 28 U.S.C. § 2255 for a writ of habeas corpus and to vacate the judgment of conviction that followed his guilty plea. He argues that the 90-month sentence he received violated a plea bargain insofar as it represented an upward departure from the 10-16 month range generated by the adjusted offense level and criminal history category reflected in the presentence report, that his guilty plea was not entered with knowledge of the possibility that upward departure was possible, and that he was denied the effective assistance of counsel for not having been advised of what he claims was his right to have withdrawn his plea.

 As set forth below, Hernandez's allocution itself shows that the sentence violated no bargain and that Hernandez knew the risks and benefits of his plea. The full record shows that Hernandez received the assistance of uncommonly skillful counsel, and there is no legal basis to support petitioner's suggestion that he had a right to withdraw his plea. Accordingly, there is no need for a hearing to show that the petition is frivolous; the writ is denied and the petition is dismissed.

  The facts of this case have been set forth in opinions of this court, 738 F. Supp. 779 (S.D.N.Y. 1990) and 753 F. Supp. 1191 (S.D.N.Y. 1990), and the Court of Appeals, 941 F.2d 133 (2d Cir. 1991), familiarity with which is assumed for current purposes.

 I.

 Hernandez's first two contentions, that he had bargained for a sentence between 10 and 16 months and that he was unaware of a possible upward departure, are rebutted by the record of his plea allocution. At that time, Hernandez was placed under oath and cautioned that his answers during the allocution would be subject to the penalties of perjury or of making a false statement if he did not answer truthfully. (Tr. 19) *fn1" He had already heard government counsel state:

 It is our understanding that this is to be a conditional plea, with the sole condition being that the defendant retains a right to appeal the result of the suppression hearing.

 THE COURT: Right.

 [THE PROSECUTOR]: There are no further agreements beyond that.

 (Tr. 3) He had also heard his attorney, Barry Scheck, Esq., tell the Court:

 But in this context, the defendant is getting what he represented to me he wants most, which is a plea of guilty with a condition. That is our sole agreement at this point.

 (Tr. 4) In addition, he had participated in the following exchange:

 MR. SCHECK: Yes, your Honor. My client has authorized me to enter a plea of guilty to the one and only count of the ...


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