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RIZA v. UNITED STATES

July 12, 1996

SHAMSUDDIN RIZA, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J.:

 Pursuant to 28 U.S.C. § 2255, petitioner Shamsuddin Riza, acting pro se, brings the above-captioned action seeking 1) vacatur or reduction of his sentence on the ground that he received ineffective assistance of counsel and 2) a hearing on his claims. Petitioner asserts, inter alia, that his counsel failed to object at sentencing to certain enhancements of his sentence which had been stipulated in his plea agreement and to unspecified inaccuracies in his presentence investigation report ("PSR"). For the reasons that follow, the petition is denied.

 BACKGROUND

 On December 21, 1992, petitioner Shamsuddin Riza and three others were indicted on twenty-four counts of various extortion-related offenses arising out of the "wrongful use of actual and threatened force, violence, and fear" to obtain contracts, cash, and the placement of workers on various construction projects located in New York City. See Indictment S2 92 Cr. 530 (JES), attached to Gov't. Mem. of Law, Exh. A ("Indictment"). On March 31, 1993, pursuant to a signed plea agreement, Riza entered a plea of guilty to six counts of extortion in violation of 18 U.S.C. § 1951. See Tr. dated Mar. 31, 1993 ("Mar. 31, 1993 Tr.") at 2-3, 11; Plea Agreement dated Mar. 31, 1993 ("Pl. Agrmt.") at 1-2.

 In the plea agreement, the parties stipulated that the offense level calculated under the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G.") applicable to his conviction was level 26, which carried a term of imprisonment of 63 to 78 months. Pl. Agrmt. at 3. In reaching that calculation, the parties agreed that each count was subject to a two level specific offense characteristic enhancement under U.S.S.G. §§ 2B3.2(b)(1) or 2B3.2(b)(4)(A), because the offense either involved "an express or implied threat of bodily injury" or resulted in bodily injury to a victim. Id. at 1, 2. In the plea agreement, Riza also stipulated that "neither the Court nor the Probation Department is bound by the foregoing Guidelines Stipulations/Guidelines Analysis," "that the sentence to be imposed upon Shamsuddin Riza is determined solely by the sentencing Judge," and that "neither party will appeal a sentence by the Court that falls within the sentencing range/offense level [of 63 to 78 months]." Id. at 3, 4.

 During the plea allocution, Riza stated that he had read and discussed the plea agreement with his counsel and that he was satisfied with his counsel's advice in relation thereto. Mar. 31, 1993 Tr. at 4-5. In addition, the Court cautioned Riza that the plea agreement was not binding on the Court, which was free to accept or reject the terms contained therein. Id. at 6.

 Prior to sentencing, pursuant to Fed. R. Crim. P. 32(c)(1) the United States Probation Department submitted a PSR which recommended, inter alia, the same two level enhancements under U.S.S.G. §§ 2B3.2(b)(1) and 2B3.2(b)(4)(A) which the parties had stipulated in the plea agreement. See Tr. dated Oct. 14, 1993 ("Oct. 14, 1993 Tr.") at 2.

 On October 14, 1993, the Court sentenced Riza to seventy-eight months incarceration followed by three years supervised release and imposed a fine of $ 75,000 plus a mandatory $ 300 special assessment. Oct. 14, 1993 Tr. at 10-13. At no time did Riza or his counsel object to the sentence enhancements stipulated in the plea agreement, recommended in the PSR and accepted by the Court. Nor did Riza file a direct appeal. *fn1"

 On May 9, 1995, Riza filed the instant petition claiming that he was denied effective assistance of counsel in violation of his Sixth Amendment rights. *fn2" Riza claims that his counsel failed to fully explain, object to, or appeal the enhancements stipulated in the plea agreement and recommended in the PSR. Riza asserts that his counsel should have argued that the enhancements for actual or threatened injury amounted to a double counting in his sentence because the base offense of extortion involves threat or actual harm.

 Riza also claims that his counsel "should have filed a formal motion to the Court requireing [sic] that the Court strike or redact the disputed statements from the Pre-Sentence report, which contain no indicia of reliability," Pet'r. Resp. to Gov't. Mem. of Law filed Aug. 31, 1996 at 2, and that the Court should have granted a hearing thereon pursuant to Fed. R. Crim. P. 32(c)(3)(D). *fn3" Riza alleges that as a result, the Bureau of Prisons continues to take these inaccuracies into consideration when making decisions regarding the terms of his incarceration. Riza does not, however, specify what portion of the PSR is inaccurate.

 DISCUSSION

 Riza's § 2255 petition is procedurally barred and therefore must be dismissed. It is well established that where, as here, a defendant knowingly and voluntarily agrees not to appeal a sentence falling within the specified Guidelines range, here of 63 to 78 months incarceration, he cannot thereafter file a direct appeal. See United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.)(dismissing direct appeal because "in no circumstance, however, may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement"), cert. denied, 509 U.S. 931, 113 S. Ct. 3060, 125 L. Ed. 2d 742 (1993). It follows that because the instant issues were not and could not have been raised on direct appeal, they cannot be used as a basis to collaterally attack his sentence. See Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993)("§ 2255 petition may not be used as a substitute for direct appeal") (citing United States v. Frady, 456 U.S. 152, 165, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982)).

 Nor has Riza established any "cause" or "actual prejudice," both of which must be established, to overcome this procedural bar. Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993) (citing Frady 456 U.S. at 167-68); see also Campino v. United States, 968 F.2d 187, 188-91 (2d Cir. 1992). The plea agreement itself, which precluded direct appeal of his sentence, does not constitute cause. See United States v. Pipitone, 67 F.3d 34, 38-39 (2d Cir. 1995); United States v. Jones, 1995 U.S. App. LEXIS 13021, No. 94-6209, 1995 WL 321263, at *1 (4th Cir. May 30, 1995) (per curiam) (plea agreement preventing appeal is insufficient cause for procedural default); Coleman v. Thompson, 501 U.S. 722, 753, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991) ("'cause'... must be something external to the petitioner, something that cannot fairly be attributed to him"). Moreover, the fact that Riza's attorney may have advised against direct appeal likewise does not constitute cause where, as here, his counsel ...


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