The opinion of the court was delivered by: Cote, District Judge.
On October 12, 2000, Jessica Jimenez ("Jimenez") signed a
petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2255. Jimenez entered a
plea agreement with the Government that contained a guidelines
stipulation and was sentenced on December 10, 1999, principally
to a prison term of 60 months, following her plea of guilty to
conspiring with others to distribute 5 grams or more of crack
cocaine in violation of 21 U.S.C. § 846. Jimenez, who did not
appeal her conviction, now contends that (1) her assigned
counsel for plea and sentence was ineffective in not advising
her correctly regarding her opportunity to qualify for the
"safety valve" sentence adjustment, which would have allowed her
to receive a sentence below the mandatory minimum prison term of
60 months, and (2) that her conviction violates the principles
stated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000).*fn1 For the following reasons,
the petition is denied.
On January 26, 1999, Jimenez was arrested and on February 16,
March 4, and May 13, 1999, indictments were filed charging her
and twelve others with conspiring to distribute and possess with
the intent to distribute five grams and more of crack cocaine
from October 1997 until January 1999.*fn2 On July 28, 1999,
pursuant to a plea agreement ("Agreement"), Jimenez pleaded
guilty to the first count of a superceding information and
admitted, under oath, that she had conspired to distribute five
grams of crack cocaine. As part of the Agreement, the Government
agreed to downward adjustments based upon Jimenez' minimal role
and acceptance of responsibility, and Jimenez stipulated to a
base offense level of 32, and agreed not to appeal or
collaterally attack a sentence within a range of 60 to 71 months
imprisonment. In the Agreement, Jimenez additionally
acknowledged that, because she had not made a proffer to the
Government, she was not eligible for a sentence below the
mandatory minimum pursuant to the "safety valve" provision,
18 U.S.C. § 3553(f).
At the time of her plea, the Court advised Jimenez about the
safety valve provision and described, in detailed terms, that
she could receive a sentence below the 60-month statutory
minimum if she made a truthful disclosure to the Government at
any time before sentence was imposed of her activity and the
activity of others in connection with the conspiracy to which
she was pleading guilty. She stated, while under oath, that she
During her allocution, Jimenez stated that she, with others,
had "agreed to pack crack cocaine in 1998," and affirmed that
she participated in "packaging 5 grams or more of crack
cocaine." On December 10, 1999, Jimenez was sentenced to the
mandatory minimum term of 60 months in prison. At the sentencing
hearing, neither Jimenez nor her attorney objected to statements
in the Presentence Investigation Report that Jimenez trafficked
in at least 5 grams of crack cocaine. Jimenez did not appeal her
A. Ineffective Assistance of Counsel
Jimenez asserts that she received ineffective assistance of
counsel at the time of her plea and sentence because
her attorney improperly advised her regarding the safety valve
provision. To prevail on a claim of ineffective assistance of
counsel, a habeas petitioner must show: (1) that her attorney's
performance fell below an objective standard of reasonableness,
and (2) there is a "reasonable probability" that the outcome
would have been different but for counsel's error. United
States v: Davis, 239 F.3d 283, 286 (2d Cir. 2001). A
"reasonable probability" is one "sufficient to undermine
confidence in the outcome." Flores v. Demskie, 215 F.3d 293,
304 (2d Cir. 2000) (citing Strickland v. Washington,
466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). There is
a strong presumption that counsel's conduct falls within the
"wide range of reasonable professional assistance." Clark v.
Stinson, 214 F.3d 315, 321 (2d Cir. 2000) (citation omitted).
The safety valve provision, 18 U.S.C. § 3553(f), is only
available to defendants who meet each of its five requirements.
One of those requirements is that the defendant truthfully
provide to the Government all information and evidence that the
defendant has concerning the offenses that were part of the same
course of conduct or of a common scheme or plan with the offense
of conviction. This provision requires the defendant to reveal
not just her own activity, but also the activity of others in
connection with the offense of conviction. Jimenez was advised
by the Court of the requirements for eligibility for the safety
valve and, at the time of sentence, defense counsel assured the
Court that he had focused on the safety valve issue repeatedly
in representing his client.
Jimenez contends that her assigned counsel misled her
regarding the safety valve procedure when he advised her that
she would be required to tell the Government all that she knew
about her own "involvement," as well as others' involvement, in
the drug conspiracy in order to qualify, and that she would be
subject to additional prison time and charges should she submit
to the necessary interview with the Government. Jimenez'
attorney's advice was legally and factually correct. Jimenez
would be obligated, in a proffer session, to explain all that
she knew about her involvement and her co-conspirators'
involvement in the drug conspiracy. It is also worth noting that
Jimenez' contention, in her response to the Government's
opposition to her petition, that she could not participate in a
proffer because she did not know of "others activities [sic],"
directly contradicts her plea allocution, in which she admitted
that she and others packaged crack cocaine, that she was paid
for her efforts, and that she knew the crack cocaine was sold.
Of course, depending on what Jimenez actually did as a member
of the conspiracy, a proffer session could have exposed Jimenez
to additional prison time. Jimenez was originally indicted for a
conspiracy that carried a ten-year mandatory minimum punishment.
The superceding information to which Jimenez entered her plea
carried a mandatory minimum term of imprisonment of five years
and contained a charge based on a smaller quantity of drugs than
that contained in the original indictment. A truthful proffer
session with the Government may well have revealed that her
offense level and mandatory minimum term of imprisonment should
have been set according to the original indictment or that she
was not entitled to the 4 level minor role adjustment she
received pursuant to the Agreement. In sum, Jimenez has not
provided any basis to find that her attorney's advice regarding
the safety valve was erroneous or that the decision not to
participate in a proffer
session with the Government was anything other than a
well-advised tactical decision.
Moreover, under the Agreement, Jimenez gave up her right to
appeal or otherwise litigate any sentence of 71 months or less.
There are certain circumstances where that waiver will not be
enforced. "[A] plea agreement containing a waiver of the right
to appeal is not enforceable where the defendant claims that the
plea agreement was entered into without effective assistance of
counsel," and, therefore, it is generally appropriate to review
the constitutionality of the process by which such a plea was
entered, despite the waiver. United States v. Hernandez,
242 F.3d 110, 113-14 (2d Cir. 2001) (per curiam). Jimenez has not
claimed that her attorney was ineffective in negotiating her
plea agreement or that she entered the Agreement without the
effective assistance of her counsel. Her colloquy with the Court
at her plea confirms that she understood the ...