The opinion of the court was delivered by: LEISURE
Pro se petitioner, Jesus Ramirez, filed the instant petition for relief pursuant to 28 U.S.C. § 2255. Ramirez seeks a reduction of his sentence on the basis that he was subjected to enhanced penalties for crack cocaine possession due to ineffective assistance of counsel. For the following reasons, petitioner's motion is denied.
In an indictment dated March 29, 1995, Ramirez was charged with three counts of conspiracy to distribute and possession with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 812, 841. On September 21, 1995, as a result of plea negotiations with the Government, Ramirez pleaded guilty to one count of conspiracy to distribute crack cocaine. The plea agreement stipulated that Ramirez conspired to possess with intent to distribute 121.9 grams of mixtures and substances containing cocaine base and 153.2 grams of cocaine. Pursuant to the United States Sentencing Guidelines (the "U.S.S.G.") the applicable base offense level was 32. See U.S.S.G. § 2D1.1(c)(3). Because Ramirez accepted responsibility for the offense, the agreement provided for a three-level decrease in the offense level, thus resulting in a level of 29. Ramirez had no relevant criminal record, and therefore the applicable sentencing range was calculated at 87 to 108 months. Included in the plea agreement was a provision under which Ramirez agreed neither to appeal nor litigate under 28 U.S.C. § 2255 any sentence falling within or below the stipulated Guidelines range.
At the plea allocution held on September 21, 1995, petitioner acknowledged that he had reviewed the plea agreement with his attorney. See Tr. of Plea Allocution 9-10, 12 [hereinafter Tr.]. Ramirez indicated that he knowingly and willingly entered into the plea agreement. Id. at 11-13, 21-22. During the plea allocution, the Court was careful to explain to petitioner that he had the right to a jury trial and that he would be presumed innocent of all charges. See Id. at 10, 12-15. Finally, the Court notified Ramirez of the substantial monetary fines and/or prison term he could face if found guilty at trial. Id. at 16-17. Ramirez was sentenced on May 15, 1996, to 70 months imprisonment. The lower sentence resulted from an applicable two-point reduction provided by an intervening amendment to the U.S.S.G. Seventy months was the minimum available under the new sentencing range.
Petitioner argues that his attorney failed to produce evidence indicating that the substance he pleaded guilty to possessing could have been a form of cocaine other than crack cocaine. As a result, Ramirez contends, he was subjected to an improper sentencing range, due to the enhanced offense levels mandated by crack cocaine offenses. Accordingly, Ramirez asserts that he was denied effective assistance of counsel.
I. Petitioner's Ability to Assert a § 2255 Petition
As part of his plea agreement, Ramirez waived not only his right to appeal any sentence which did not exceed the agreed-upon Guidelines range, but he also waived his right to seek post-conviction relief under 28 U.S.C. § 2255 if the sentence did not exceed the suggested range.
The Court of Appeals for the Second Circuit has upheld the validity of voluntary and informed waivers of appeal. See United States v. Salcido-Contreras, 990 F.2d 51, 51 (2d Cir. 1993); see also United States v. Rivera, 971 F.2d 876, 896 (2d Cir. 1992). The Salcido-Contreras Court noted that under no circumstances could "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," because "such a remedy would render the plea bargaining process and the resulting agreement meaningless." Id. (emphasis added); see also United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990) (noting that appeal is not barred if the sentence was not in accordance with the plea agreement).
Whereas the Second Circuit has explicitly recognized the validity of a waiver of the right to appeal, the Court has yet to hold on the question of the validity of a § 2255 waiver as a direct bar to a petition addressing the issues purportedly waived. Thus, it does not appear that this Circuit has held that an explicit § 2255 waiver is fully enforceable to bar such a petition outright. The Fifth Circuit was the first to have explicitly recognized the validity of § 2255 waivers in plea agreements.
See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). The Wilkes court noted that it could find "no principled means of distinguishing such a waiver from the waiver of a right to appeal." Id. Accordingly, the Wilkes court permitted the waiver of § 2255 petitions, but noted that such waiver was conditioned upon knowing and voluntary consent. Id.
While the Fifth Circuit's decision is persuasive, this Court respectfully declines to apply such a holding in the instant case, because Second Circuit authority indicates that petitioner's ability to bring a § 2255 motion should instead be considered in light of his waiver of the right to appeal his sentence. Specifically, in United States v. Pipitone, 67 F.3d 34 (2d Cir. 1995), the Second Circuit that a § 2255 motion was procedurally barred because the petitioner had expressly waived his right to appeal a conforming sentence, although the plea agreement was silent about the use of habeas petitions. Pipitone, 67 F.3d at 36. After being sentenced in conformity with the agreement, the petitioner brought the § 2255 petition contesting an asserted misapplication of the U.S.S.G. Id. at 37. The Court stated that it was "loathe to countenance so obvious a circumvention of a plea agreement," and therefore held that the waiver of the right to appeal could not constitute cause for the petitioner's delay in asserting his claim sufficient to avoid the procedural default rule. Id. at 39.
In effect, the Pipitone Court held that a petition that is merely an attack on the merits of a sentence is barred by petitioner's express waiver of his right to appeal a conforming sentence. Id. at 39; see also Abarca, 985 F.2d at 1014 (noting that a waiver of the right to appeal a sentence includes the waiver of the right to attack the sentence collaterally under § 2255); Trujillo v. United States, 1993 U.S. Dist. LEXIS 8456, 1993 WL 227701, at *3 (S.D.N.Y. 1993) (Leisure, J.). In essence, the Second Circuit simply confirmed that the use of § 2255 is limited to its express language and can not be used to attack the merits of a sentence. Likewise, in Trujillo, this Court noted that allowing "a defendant to raise an issue in a section 2255 petition despite the defendant's knowing and voluntary waiver of the right to appeal, . . . would create a route by which a petitioner could circumvent the Salcido-Contreras holding in contravention of the policies underlying that decision." Trujillo, 1993 U.S. Dist. LEXIS 8456, 1993 WL 227701, at *3.
These precedents are instructive to the resolution of the present petition. Without examining the merits of petitioner's waiver of § 2255, it is clear that his waiver of appeal precludes him from attacking the merits of his plea agreement, and Pipitone bars him from doing so collaterally absent other cause for his delay in asserting the claim. Ramirez has asserted that his attorney failed to present evidence that could have shown that the substance he pleaded guilty to distributing was a substance other than crack cocaine. Accordingly, Ramirez asserts that it was erroneous for him to have been sentenced under the harsher sentencing requirements mandated for crack cocaine offenses. Instead, Ramirez contends that the proper sentencing range was 24 to 30 months, the applicable sentencing range for a cocaine offense involving the amounts alleged in his case. As previously noted, Ramirez was actually sentenced to 70 months imprisonment, a period well below the stipulated range of 87 to 108 months. Thus, Ramirez is ...