United States District Court, Southern District of New York
January 30, 2002
LUIS RODRIGUEZ, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Michael B. Mukasey, U.S. District Judge
OPINION AND ORDER
Petitioner, Luis Rodriguez, was charged in indictment 99 Cr. 1002 with
conspiracy to distribute 50 grams or more of crack cocaine, two counts of
distributing that controlled substance, and two counts of possessing it,
in violation of 21 U.S.C. § 846, 841 and 844. The charges carried a
penalty of up to life and a mandatory minimum sentence of 10 years.
21 U.S.C. § 841 (b)(1)(A)(1994).
On November 24, 1999, after having been so charged, Rodriguez waived
his right to be charged in an indictment and permitted the government to
file a superseding information containing two counts of using the
telephone to facilitate a drug felony, in violation of 21 U.S.C. § 843
(b), each count carrying a maximum penalty of four years' imprisonment.
21 U.S.C. § 843 (d) (1994 & Supp. V 1999). He then pleaded guilty
pursuant to a letter agreement with the government, which he had signed
that very day (11/24/99 Tr. at 10) and which specified an applicable
Sentencing Guidelines range of 92-115 months, although it noted that
because the maximum penalty for each count was four years, the effective
range actually was 92-96 months. (10/16/01 Letter of Daniel M. Gitner,
Esq. to the Court, Ex. E at 3) In that same letter, Rodriguez agreed that
if sentenced in the range of 92-96 months or below, he would neither
appeal "nor otherwise litigate under Title 28, United States Code, Section
2255." (Id. at 5)
At the time of the plea, Rodriguez was found competent (11/24/99 Tr. at
4-5), acknowledged that he understood and gave up his right to have a
grand jury vote on whether he should be charged (id. at 5), and
acknowledged that he understood also the maximum penalty per count and
the applicability of the Sentencing Guidelines (id. at 8, 9-10), as well
as the specific 92-96-month range he had agreed to in this case (id. at
11). Rodriguez acknowledged further that he had had enough time to
discuss the case and possible defenses with his court-appointed attorney
and that he was satisfied with that attorney's representation. (Id. at 5)
Finally, he acknowledged that he had reviewed the plea agreement with his
attorney before signing it, and understood it. He declined an offer to
explain the agreement:
Q. [by the Court] Is there anything in this letter that
you want me to explain?
A. No. Everything's all right. (Id. at 10)
On February 29, 2000, notwithstanding the recommendation in the
Presentence Investigation Report that Rodriguez be sentenced at the high
end of the range, I sentenced him to the minimum — 92 months.
(2/29/00 Tr. at 5-6) No appeal was filed on his behalf.
Now, having obtained the benefit of the deal described above, Rodriguez
petitions under 28 U.S.C. § 2255 (1994 & Supp. V 1999) to set aside
the judgment and the sentence imposed pursuant thereto, arguing that he
did not knowingly waive his right to an indictment by a grand jury, that
his attorney was ineffective for having failed to prosecute an appeal and
for having failed to object to the imposition of
consecutive sentences on the two counts, and that his sentence was
As noted above, Rodriguez gave up the right to appeal or to file a
petition such as this one in return for avoiding at least a 10-year
mandatory minimum, even before the filing of a prior felony information,
and a maximum of life, in return for a maximum 8-year exposure and a
sentence that turned out to be even less than that. Rodriguez is not the
first defendant to file a section 2255 petition in violation of a plea
agreement after accepting the benefits of the agreement. See, e.g.,
Latham v. United States, 164 F. Supp.2d 365 (S.D.N.Y. 2001). For the
reasons set forth in Latham, and also because Rodriguez has not shown
cause external to himself for failing to prosecute an appeal, let alone
resulting prejudice, see Coleman v. Thompson, 501 U.S. 722, 753 (1991);
Campino v. United States, 968 F.2d 187, 188-90 (2d Cir. 1992), and
because he may not use a section 2255 petition as a substitute for
appeal, see United States v. Frady, 456 U.S. 152, 165 (1982), the
requested relief is denied and the petition is dismissed. I decline to
address the merits of the petition, see Latham, 164 F. Supp.2d at 367
(declining to address merits of petition filed in violation of plea
agreement), except to note that even the brief procedural history set
forth above shows that the petition is without merit.
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