United States District Court, Southern District of New York
June 16, 2000
JUANA BALBUENA, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Sweet, District Judge.
Juana Balbuena ("Balbuena") has petitioned, pursuant to
28 U.S.C. § 2255, for vacatur of a sentence imposed by the Honorable
Sonia Sotomayor on November 13, 1997. More specifically, Balbuena
contends that she was denied her right to effective assistance of
counsel under the Sixth Amendment because her attorney, Charles
Lavine ("Lavine"), erroneously advised her to refrain from
stipulating to deportation even though she would have been
eligible for a downward departure in her sentence based on such a
For the reasons set forth below, the petition is denied.
On or about June 4, 1997, Balbuena executed a plea agreement
(the "Plea Agreement") with the Government. The Plea Agreement
included a stipulation regarding application of the United States
Sentencing Guidelines ("the Guidelines") to Balbuena's offense
conduct, according to which the parties stipulated that
Balbuena's total offense level was 33, her criminal history
category was I, and the applicable sentencing range was 135-168
months' imprisonment. On or about June 4, 1997,
Balbuena pled guilty to conspiracy to distribute and possess with
intent to distribute narcotics in violation of 21 U.S.C. § 846.
On November 13, 1997, she was sentenced to 135 months'
incarceration, to be followed by a five-year term of supervised
release. Balbuena is presently serving her sentence.
On or about November 19, 1997, Balbuena filed a notice of
appeal. On or about January 26, 1998, Balbuena's counsel, Lavine,
filed a motion to be relieved as appellate counsel and to have
new counsel appointed on the ground that one of the issues
Balbuena planned to raise on appeal was the adequacy of his
representation in connection with her plea and sentencing. That
motion was granted on or about February 9, 1998. On or about May
1, 1998, after two other changes of counsel, Gino Josh Singer
("Singer") was substituted as counsel of record.
On or about June 24, 1998, Balbuena filed a motion to withdraw
her appeal without prejudice so she could pursue her claim of
ineffective assistance of counsel through the instant petition,
on the ground that the facts necessary to adjudicate this claim
were not fully developed on the record below. On or about July
14, 1998, the Court of Appeals denied the motion without
prejudice to the filing of a stipulation. On or about August 14,
1998, the Court of Appeals dismissed the appeal for failure to
comply with a previous scheduling order. On or about August 25,
1998, the Government and Balbuena, through Singer, executed a
stipulation withdrawing Balbuena's appeal without prejudice to
reinstatement upon the conclusion of proceedings relating to the
instant petition. On or about August 26, 1998, Balbuena submitted
simultaneous motions to reinstate the appeal and to withdraw the
appeal without prejudice upon its reinstatement. The motion to
reinstate the appeal was granted on or about September 2, 1998
and the motion to withdraw the appeal without prejudice was
granted on or about September 11, 1998.
The instant petition was filed on June 30, 1999. After
affording the Government an opportunity to respond, the petition
was deemed fully submitted as of February 9, 2000.
I. Balbuena's Claim Of Ineffective Assistance Of Counsel Is
Not Barred By The Plea Agreement
As an initial matter, the Government contends that Balbuena's
claim is barred by the Plea Agreement, which included the
It is further agreed . . . that the defendant will
neither appeal, nor otherwise litigate under Title
28, United States Code, Section 2255, any sentence
within or below the stipulated Guidelines range. . .
. Furthermore, it is agreed that any appeal as to the
defendant's sentence that is not foreclosed by this
provision will be limited to that portion of the
sentencing calculation that is inconsistent with (or
not addressed by) the above stipulation.
The Government avers that pursuant to this provision Balbuena
waived her right to challenge either on direct appeal or by way
of collateral attack any sentence within or below the stipulated
sentencing range. Balbuena's sentence of 135 months was within
the stipulated range of 135 to 168 months' incarceration.
The question of the validity — or scope thereof — of a
defendant's waiver of her right to file a collateral attack has
not yet been addressed directly by the Second Circuit. There is
little question that a defendant's knowing and voluntary waiver
of his right to direct appeal of a sentence within an agreed-upon
range is enforceable. See United States v. Djelevic,
161 F.3d 104, 106-07 (2d Cir. 1998). At the same time, even a waiver of
the right to direct appeal is enforceable only if it was knowing
and voluntary, the sentence was within the stipulated range, and
there are no extraordinary circumstances making enforcement of
the agreement contrary to
public policy. See United States v. Rosa, 123 F.3d 94, 97-98
(2d Cir. 1997); Ocasio v. United States, No. 99 Civ. 9045, 2000
WL 460459, at *3 (S.D.N.Y. April 18, 2000).
Although some circuit courts have upheld waivers of collateral
attack, see, e.g., Watson v. United States, 165 F.3d 486, 489
(6th Cir. 1999), others have not enforced the waiver when the
petitioner claims ineffective assistance of counsel or
involuntariness of the waiver, see Jones v. United States,
167 F.3d 1142, 1145 (7th Cir. 1999); see also United States v.
Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (upholding waiver
because informed and voluntary); United States v. Abarca,
985 F.2d 1012, 1014 (9th Cir. 1993) (declining to hold that waiver
forecloses claim of ineffective assistance or involuntariness),
cert. denied, 508 U.S. 979, 113 S.Ct. 2980, 125 L.Ed.2d 677
(1993). In addition, a number of district courts within this
circuit have held that a Section 2255 petitioner should not be
deemed to have waived the right to challenge her sentence where
the ground for attack is ineffective assistance of counsel or
that the plea or waiver was not knowing and voluntary. See,
e.g., Ocasio, 2000 WL 460459, at *3; Ramirez v. United States,
963 F. Supp. 329, 331-32 (S.D.N.Y. 1997).
The reasoning of those courts which have not enforced a Section
2255 waiver where the petitioner raises a claim of ineffective
assistance of counsel or involuntariness is persuasive and is
adopted in considering the instant motion. As the court noted in
Jones, "[j]ustice dictates that a claim of ineffective
assistance of counsel in connection with the negotiation of a
cooperation [or plea] agreement cannot be barred by the agreement
itself — the very product of the alleged ineffectiveness." 167
F.3d at 1145. Therefore, Balbuena's claim is not barred by the
Plea Agreement and the Court will consider it on the merits.
II. Balbuena Has Not Established That Her Counsel Was
In Strickland v. Washington, 466 U.S. 668
, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), the Supreme Court set forth a two-pronged
test to determine whether a claim of ineffective assistance of
counsel in violation of the Sixth Amendment right to counsel was
established. Under this test, the petitioner must establish that
(1) his attorney's performance "was unreasonable under prevailing
professional norms and that the challenged action was not sound
strategy," id. at 688-89, 104 S.Ct. 2052, and (2) there is a
reasonable possibility that, "but for counsel's unprofessional
errors, the result of the proceeding would have been different,"
id. at 694, 104 S.Ct. 2052.
Balbuena alleges that Lavine recommended she not agree to
stipulate to deportation even though she initially told him she
wanted to do so. Balbuena further alleges that Lavine "did not
adequately explain certain aspects of the case" relating to the
possibility of stipulating to deportation or, as it is otherwise
known, agreeing to "judicial deportation". Balbuena contends that
in making her decision she relied on Lavine's erroneous and
inadequate advice. In essence, Balbuena's contention is that
because Lavine was ineffective in advising her that her decision
to forego judicial deportation and its potential benefits was not
knowing and voluntary. Cf. Luna v. United States, No. 98 Civ.
7970, 1999 WL 767420, at *3 (S.D.N.Y. Sept. 28, 1999)
(defendant's contention that he agreed to waive appeal rights was
due to ineffective assistance to be construed as claim that his
waiver not knowing and voluntary). The issue here therefore turns
upon whether Lavine's performance was unreasonable and the effect
it had on Balbuena's decision-making process.
It should be noted that Lavine contends that he made no
recommendation as to whether Balbuena should enter into the
stipulation but instead only discussed the matter with her and
let her decide. Even assuming that he did make an affirmative
recommendation, however, he was not ineffective under
According to both Balbuena and Lavine, their discussion
included consideration of the possibility of her benefitting as
to sentencing from third-party cooperation by her son — who was
indicted in the same case — in the event he chose to surrender
and cooperate. Balbuena alleges that Lavine recommended she
pursue that option rather than judicial deportation. She asserts
that Lavine's recommendation was contrary to the general practice
in the Southern District at the time according to which defense
attorneys "regularly" advise their non-citizen clients to
stipulate to deportation in order to obtain sentencing
departures. She further asserts that the third-party cooperation
option was too speculative to constitute a viable alternative.
Balbuena essentially contends that it was per se ineffective
assistance of counsel for an attorney in this district to
recommend to a non-citizen client not to stipulate to deportation
at the time she was sentenced. This position does not comport
with Strickland, however, in which the Supreme Court observed
that "`[t]here are countless ways to provide effective assistance
in any given case,' and that `even the best criminal defense
attorneys would not defend a particular client in the same way.'"
United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990)
(quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Lavine's
recommendation, assuming it occurred, was based on consideration
of an alternative way of obtaining a downward departure — one
which would not foreclose Balbuena from contesting her
A recommendation by Lavine that Balbuena not stipulate to
deportation thus represented one strategic choice among others
that was not unreasonable on the circumstances of the case.
Ultimately, the possibility of a departure based on third-party
cooperation was not realized. But a fair assessment of an
attorney's performance under the Sixth Amendment cannot be made
with the benefit of hindsight. See Strickland, 466 U.S. at 689,
104 S.Ct. 2052. Nor is it sufficient that in looking back we
might deem the choice made to be less meritorious than the one
rejected. The question is whether or not the course pursued
"might be considered sound  strategy" by the attorney at the
time. Id. at 689, 104 S.Ct. 2052. That question must be
answered affirmatively here.
This conclusion is further supported by Lavine's assertion,
which is uncontradicted by Balbuena, that they discussed her
desire to petition the INS to remain because she wanted to try to
stay with her family in the United States. This consideration
would have provided yet another reason to make the strategic
choice not to recommend stipulating to deportation since that
would have eliminated any hope, even if slim, of remaining in the
United States. In short, whether Lavine affirmatively recommended
that Balbuena not consent to judicial deportation, or merely
discussed the issue with her, in the end he engaged in what could
be viewed as reasonable defense strategy under Strickland.
Moreover, with respect to Balbuena's claim that Lavine did not
adequately explain the option of judicial deportation, the record
shows otherwise. First, Balbuena admits in her own affidavit
Before I pleaded guilty, Mr. Lavine discussed with me
the terms of a plea agreement he had reached with the
government. He explained the amount of time I was
likely to receive under this agreement, and went over
the written agreement with me.
During that meeting, Mr. Lavine . . . informed me of
a memorandum and policy that had been implemented by
the United States Attorney General in 1995, and which
encouraged the United States attorneys offices to
recommend sentence reductions in exchange for plea
agreements that include consent to judicial
deportation by non-citizens such as myself.
As discussed above, Balbuena's affidavit and Lavine's
declaration further reveal that she and Lavine discussed her
options, her concerns regarding these options, and the advantages
and disadvantages of each. Balbuena also testified during the
plea proceeding that she had a full opportunity to discuss her
case, including the consequences of entering a plea of guilty,
with Lavine, and that she was satisfied with his representation.
Although there are cases in which "a breakdown in
communications between counsel and client may constitute
ineffective assistance . . . affect[ing] the validity of any
subsequent plea action," Luna, 1999 WL 767420, at *4, no such
breakdown occurred here. Balbuena's allegation that Lavine was
ineffective because he "failed to adequately explain" the
judicial deportation option is belied by the record.*fn1 Nor
does the record support her contention that her decision was
based on unwitting reliance on Lavine's advice.
Finally, the record of the plea proceeding provides yet further
evidence that Balbuena's decision was not an uninformed one. At
that proceeding the court itself took pains to explain the
judicial deportation issue to Balbuena and the Government
explained its position on the record:
The Court: Is everything anyone has told you, and
anyone means the government or your lawyer, has
everything anyone told you about your plea or
sentence in this letter?
The Government: Your honor. . . . Mr. Lavine informed
me today that Ms. Balbuena may wish to enter into a
stipulation of deportation, and as I informed him,
is she does so and the necessary paperwork is
completed prior to sentencing, the government would
not oppose the additional one point downward
departure, so that that is in addition in terms of
the plea agreement.
The Court: Ms. Balbuena, you must decide whether you
are going to agree to be deported well before your
sentence. You can't wait for me to give you your
sentence and then decide that you want to cooperate
with deportation to get a lower sentence, it must
be decided well before then. Do you understand
The Defendant: Yes.
Thus, the option of judicial deportation was not only explained
and discussed sufficiently in the context of Balbuena's
conferrals with Lavine, but was the subject of further
exploration during the plea proceeding itself. The Court
concludes that Balbuena made a knowing and voluntary choice to
forego judicial deportation, and that she was not led blindly
astray by her counsel.
Because Balbuena's decision was not the result of ineffective
performance on the part of Lavine, she cannot satisfy the first
prong of the Strickland test, and it is unnecessary to
determine under the second prong of Strickland whether the
result of the proceeding would have been different. See
Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
For the reasons set forth above, Balbuena's petition is denied.
Furthermore, as Balbuena has not made a substantial showing of
the denial of a constitutional right a certificate of
appealability will not issue. See 28 U.S.C. § 2253(c)(2).
Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that an
appeal from this order in forma pauperis would not be taken in
good faith. See Coppedge v. United States, 369 U.S.
438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
It is so ordered.