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BALBUENA v. U.S.

June 16, 2000

JUANA BALBUENA, PETITIONER,
V.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Sweet, District Judge.

OPINION

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 stipulation.

For the reasons set forth below, the petition is denied.

Prior Proceedings

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.

Discussion

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 following provision:

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 ...


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