The opinion of the court was delivered by: Robert W. Sweet, United States District Judge
Pro se petitioner Darryl Patrick ("Patrick"), who is presently incarcerated, has moved pursuant to 28 U.S.C. § 2255 to vacate his guilty plea, claiming that he should not have been classified as a career offender and that he received ineffective assistance of counsel. For the following reasons, Patrick's petition for a writ of habeas corpus is denied.
Patrick's Offense Conduct
Patrick supervised the sale of crack cocaine, which was sold in clear bags with brown spots, known on the streets of Washington Heights as "Chocolate Chip." Patrick purchased the cocaine, which was later cooked into crack cocaine and packaged in individual bags with members of the Purple Crew, a separate crew that sold their crack cocaine in purple bags in Washington Heights.
Patrick's Plea Agreement and Guilty Plea
On May 1, 2001, Patrick signed a plea agreement in which he agreed to plead guilty to Count One of superseding information S2 99 Cr. 338 (RWS), which charged him with conspiracy to possess with the intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(b)(1)(C).
Patrick was originally charged with violating 21 U.S.C. § 841(b)(1)(A). In exchange for his guilty plea, the government agreed not to prosecute Patrick further for his participation in a conspiracy to distribute crack cocaine from 1994 through March 12, 1999, or to file any prior felony informations pursuant to 21 U.S.C. § 851 in connection with Patrick's 1989, 1990 and 1994 convictions for criminal sale and attempted criminal sale of controlled substances.
The plea agreement contained four provisions relevant to this petition: (1) an agreed-upon Sentencing Guidelines range; (2) an agreement that the government would not seek to file any prior felony informations; (3) a waiver by Patrick of the right to appeal any sentence imposed within or below the agreed-upon range; and (4) a waiver by Patrick of the right to attack collaterally under 18 U.S.C. § 2255 any sentence imposed within or below the agreed-upon range of 235 to 240 months.*fn1
The plea agreement provided:
(i) that the defendant will neither appeal, nor
otherwise litigate under [28 U.S.C. § 2255], any
sentence within or below the Stipulated Guidelines
Range (235 to 240 months) and (ii) that the Government
will not appeal any sentence within or above the
Stipulated Guidelines Range (235 to 240 months). This
provision is binding on the parties even if the Court
employs a Guidelines analysis different from that
stipulated to herein. Furthermore, it is agreed that
any appeal as to the defendant's sentence that is not
foreclosed by this provision is limited to that
portion of the sentencing calculation that is
inconsistent with (or not addressed by) the above
Patrick appeared before Magistrate Judge Gabriel W. Gorenstein on May 1, 2002, to enter a plea of guilty to the Information. At the hearing, the Court first obtained Patrick's permission to proceed before a Magistrate Judge. After placing Patrick under oath, the Court elicited that Patrick was 38 years old, had attended school through the 11th grade, and was not being treated for any condition or taking any medication that affected his ability to hear, think, reason or make decisions.
The Court then elicited that Patrick had read the superseding Information and had reviewed it with his attorney, Daniel Meyers, Esq. ("Meyers"). Patrick further indicated that he did not need any further opportunity to confer with Meyers and that he was satisfied with Meyers' representation. The Court then reviewed with Patrick all of the rights that he had and would be waiving by entering a guilty plea and the maximum statutory penalties Patrick faced as a result of pleading guilty. The Court informed Patrick that he would face a separate prosecution for perjury if it turned out that any of Patrick's answers were untruthful.
With respect to the Plea Agreement, the Court engaged Patrick in a colloquy to ensure that he had read the agreement and reviewed it with his attorney. The Court directed Patrick to a few particular portions of the agreement. In particular, the following exchange occurred:
THE COURT: Do you also understand that under the
terms of this plea agreement, if the judge sentences you
to a prison term that is no longer than the maximum of
the predicted range, that is no longer than 240 months,
you are giving up your right to challenge that sentence,
both on appeal to the Court of Appeals and by application
to the trial judge? Do you understand that?
The Court asked the government to set forth the elements of the charges against Patrick, and Patrick admitted his participation in the ...