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ROSA v. U.S.

October 18, 2001

GENARO ROSA, PETITIONER,
V.
UNITED STATES, RESPONDENT.



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

          ORDER

On September 24, 2001, the Honorable Gabriel W. Gorenstein, United States Magistrate Judge, issued a thorough Report and Recommendation in the above-captioned matter recommending that the pro se petitioner's motion under 28 U.S.C. § 2255 to vacate his judgment of conviction be denied and the petition dismissed.

Petitioner has failed to file any objection to the Report and Recommendation, and, for that reason alone, has waived any right to further appellate review, see Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992). Accordingly, the Court hereby adopts the Report and Recommendation, and, for the reasons stated therein, dismisses the petition. Clerk to enter judgment.

SO ORDERED.

REPORT AND RECOMMENDATION

Petitioner Genaro Rosa, proceeding pro se, has moved under 28 U.S.C. § 2255 to vacate his judgment of conviction.*fn1 For the reasons stated below, it is recommended that Rosa's motion be denied.

Proceedings before the Trial Court

On May 6, 1997, Genaro Rosa, along with three other individuals, was arrested for possession of heroin. On August 21, 1997, a grand jury indicted him on charges of (1) conspiracy to distribute, or possess with intent to distribute, one kilogram or more of mixtures and substances containing heroin and (2) possessing with intent to distribute approximately 368 grams of mixtures or substances containing heroin, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. See Indictment, filed August 22, 1997, in 97 Cr. 829. Rosa and the other defendants waived their right to a jury trial. (Tr. 5-10).*fn2 On January 5, 1998, the trial began before Judge Rakoff and continued on January 6, 7 and 8.

On the morning of January 9, 1998, counsel for one of Rosa's co-defendants stated that the defendants were willing to enter pleas of guilty pursuant to a "global plea offer" from the United States Attorney's Office. (Tr. 700). Following a recess in the trial to prepare written plea agreements, the parties returned to the courtroom. (Tr. 702). While at first not all four defendants were apparently ready to state their willingness to plead guilty (Tr. 702-703), ultimately all four did so. (Tr. 707-745, 746-57, 757-68, 768-81). In accordance with his plea agreement, Rosa pled guilty only to the second count of the two-count indictment: possession with intent to distribute approximately 368 grams of heroin. (Tr. 757-68). The parties stipulated Rosa's sentencing guidelines range to be 63 to 78 months. See Letter from Assistant United States Attorney Jennifer M. Moore to Jose Muniz, Esq., dated January 9, 1998 (reproduced as Exhibit C to Affidavit of Jennifer M. Moore, dated February 18, 2000) (hereinafter "Plea Agreement"). Sentencing was set for April 16, 1998.

During the sentencing proceeding, Rosa's counsel initially stated that Rosa "wants to withdraw his plea over my recommendation that he not do so." (S.20). The Court reminded Rosa of the Plea Agreement and the sentence he was facing. Rosa responded: "That I wasn't really too sure, your Honor." (S.20). When told by the Court that the probation office was recommending the lowest number in the stipulated sentencing range, Rosa asserted that he had "three kids to take care of and, right now, my mom's, she is really sick." (Id.) The Court denied the motion to withdraw the plea and sentenced Rosa to a term of imprisonment of 63 months, to be followed by five years of supervised release, and a mandatory special assessment of $100. (S.20, 26-27). Rosa did not appeal.

Rosa's Motion to Vacate His Sentence under 28 U.S.C. § 2255

Rosa's present motion is dated April 14, 1999, and was received by the Court on April 19, 1999. See Genaro Rosa's (Prisoner No. 42012-054) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (hereinafter, "Motion to Vacate" or "Motion"). Rosa raises multiple grounds in support of the relief he seeks, almost all of which are set forth without any elaboration. See Motion to Vacate at 5-6, and unnumbered page. His claims, reproduced verbatim, are as follows:

A. Ineffective Assistance of Counsel-Sixth Amendment Violation. Counsel failed to adequately investigate and prepare for the case; counsel also failed to properly communicate the risks of going to trial, depriving him to make a plea knowingly and willingly. He was held in a county which was in very bad condition for (5) months before being indicted and never waive or gave my attorney permission to do so.
B. Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily or of with understanding of the nature of the charge and consequences of the plea. Lying to the defendant as to sentence to be imposed, rushing into plea without investigation, plea not knowingly and intelligently made (see attached from psychologist the IQ is extremely low). His attorney was well aware that Mr. Rosa didn't comprehend very well but force him to sign a plea agreement he never seen or went over before. Plea urged for the sake of a contingent plea agreement for codefendant, failure to request time in which to review Jencks material.
C. The sentence was imposed in violation of the Due Process Clause of the Fifth and Sixth Amendment. Counsel failed to raise timely, formal, written objections to the PSI erroneous computation of the amount drugs attributed to the defendant, Mr. Rosa stated he never seen any drug. Failure to object to ex parte information provided to the court before sentencing. Counsel failed to sit in on the interview with the Probation officer.
D. Denial of Right of Appeal. Failure to give notice of appeal for defendant, failure to advise filing notice of appeal, deceiving the defendant as to the existence of an appeal, refusal of trial counsel to turn over case files for post-conviction relief.
E. Federal Sentencing Guidelines. Failure to argue for a reduction in base offense level, I was incarcerated in nonfederal institution (county jail) for (5) months with extraordinary conditions. I was a first time offender and was eligible for two point reduction for my minor role.
F. Conviction obtain by use of false evidence gained pursuant to an unconstitutional search and seizure-Fourth Amendment Violation. No record of a search warrant up to this date.

Motion to Vacate at 5-6, and unnumbered page.

The Motion to Vacate was referred to a Magistrate Judge on June 14, 1999. It was redesignated for decision by the undersigned on April 18, 2001.

Basis for Section 2255 Relief

28 U.S.C. § 2255 provides that:

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255. Relief under section 2255 is available only "for constitutional error, lack of jurisdiction, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996) (internal quotation marks and citations omitted).

Effect of Rosa's Failure to Appeal

A section 2255 motion may not be used as a substitute for a direct appeal. See United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Where a petitioner does not bring a claim on direct appeal, he is barred from raising that claim in a subsequent section 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom. See, e.g., Amiel v. United States, 209 F.3d 195, 198 (2d Cir. 2000) (citing Billy-Eko v. United States, 8 F.3d 111, 115 (2d Cir. 1993)); United States v. Canady, 126 F.3d 352, 359-60 (2d Cir. 1997) (citing Reed v. Farley, 512 U.S. 339, 355, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994)); Campino v. United States, 968 F.2d 187, 189 (2d Cir. 1992). This rule also applies where the defendant fails to appeal at all. See United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995) ("cause and prejudice" requirement applies where there is a "complete failure to take a direct appeal"). The term "cause" means "something external to the petitioner, something that cannot be fairly attributed to him." Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (emphasis in original).

Where a ground raised in a section 2255 motion is based on ineffective assistance of counsel, however, the rule requiring the ground to have been raised on appeal does not apply on the theory that the ineffective assistance of counsel itself provides the "cause" for the failure to appeal the issue. See, e.g., Bloomer v. United States, 162 F.3d 187, 192 (2d Cir. 1998); Riascos-Prado v. United States, 66 F.3d 30, 34-35 (2d Cir. 1995) (citing Billy-Eko v. United States, 8 F.3d at 115). Thus, to the extent that Rosa raises a bona fide claim of ineffective assistance of counsel, the doctrine requiring that claims be raised first on appeal would not bar him from obtaining section 2255 review.

Effect of Rosa's Agreement Not to Seek Section 2255 Relief

In this case, another potential bar to Rosa's motion is his having entered into a Plea Agreement under which he agreed not to seek relief under 28 U.S.C. § 2255 if — as occurred here — he received a sentence within or below the agreed-upon range of 63 to 78 months imprisonment. See Plea Agreement at 3.

The law is clear that, with respect to the waiver of a right to an appeal, "a defendant's knowing and voluntary waiver of his right to appeal a sentence within an agreed upon guideline range is enforceable." United States v. Djelevic, 161 F.3d 104, 106-07 (2d Cir. 1998); accord United States to Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000) (waiver of an appeal is valid if entered into knowingly and voluntarily). Thus, a defendant "who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence [may not] then appeal the merits of a sentence conforming to the agreement. Such a remedy would render the plea bargaining process and the resulting agreement meaningless." United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993). While this case law pertains to a waiver of the right to appeal, there is no "principled means of distinguishing [a section 2255] waiver from the waiver of a right to appeal," United States v. Wilkes, 20 F.3d 651, 652 (5th Cir. 1994), and it should apply equally to Rosa's waiver of his right to seek post-conviction relief generally. See, e.g., Gumbs v. United States, 8 F. Supp.2d 882, 883 (S.D.N.Y. 1998).

Nonetheless, "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." United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001) (citing United States v. Djelevic, 161 F.3d at 107). "The rationale is that `the very product of the alleged ineffectiveness' cannot fairly be used to bar a claim of ineffective assistance of counsel." Hernandez, 242 F.3d at 114 (citing Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999)). Similarly, a section 2255 waiver is unenforceable where the asserted ground for challenging the sentence is ineffective assistance of counsel in connection with the plea negotiations or agreement itself. See Jones v. United States, 167 F.3d at 1145; Balbuena v. United States, 104 F. Supp.2d 218, 220 (S.D.N.Y. 2000).

Thus, to the extent that Rosa has bona fide claims of ineffective assistance of counsel in connection with his plea, his agreement not to seek relief under 28 U.S.C. § 2255 will not be enforced against him.

Law Governing Claims of Ineffective Assistance of Counsel

To prevail on an ineffective assistance of counsel claim, the petitioner must (1) show that counsel's representation fell below "an objective standard of reasonableness" under "[p]revailing norms of practice;" and (2) "affirmatively prove prejudice" by showing that there is a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner must establish both counsel's deficiency and resulting prejudice to succeed on an ineffective assistance of counsel claim. See id. at 687, 104 S.Ct. 2052.

It is well established that "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Thus a court must give counsel "wide latitude in making tactical decisions" because a petitioner seeking to establish constitutionally ineffective assistance of counsel must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)); see, e.g., United States v. Jones, 918 F.2d 9, 11 (2d Cir. 1990) (counsel's decisions are not to be evaluated in "hindsight"). "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

Where a petitioner establishes counsel's incompetence, the petitioner must still meet the second prong of the test, Strickland, 466 U.S. at 687, 104 S.Ct. 2052, and show that he was prejudiced by counsel's actions. See id. at 693-94, 104 S.Ct. 2052. There must be a showing of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. In the context of a guilty plea, the second part of the test is met by showing "a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." United States v. Coffin, 76 F.3d 494, 498 (2d Cir. 1996) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). It is not enough for the petitioner to show that counsel's error had "some conceivable effect" on the outcome of the case; there must be a showing that the "decision reached would reasonably likely have been different." Strickland, 466 U.S. at 693, 696, ...


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