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