The opinion of the court was delivered by: Nina Gershon, United States District Judge
Pro se petitioner Hector Lebron moves, pursuant to 28 U.S.C. § 2255, seeking to have his sentenced vacated, set aside, or corrected after he pleaded guilty to conspiracy to distribute and possess heroin on December 2, 1998. For the following reasons, the motion is denied.
On December 2, 1998, petitioner pleaded guilty to Count One of an indictment that charged that petitioner and others ". . . did knowingly and intentionally conspire to distribute and to posses with intent to distribute heroin, a Schedule I narcotic drug controlled substance, in violation of Section 841(a)(1) of Title 21 of the United States Code. (Title 21, United States Code, Sections 846 and 841(b)(1)(A)(i); Title 18, United States Code 3551 et seq.)" Section 841(b)(1)(A)(i) makes it a crime, punishable by a term of imprisonment of not less than ten years and not more than life in prison, to distribute one kilogram or more of a mixture or substance containing a detectable amount of heroin.
At the time of sentencing, petitioner requested an evidentiary hearing with respect to the amount of heroin that would be attributable to him. Four witnesses testified as to petitioner's role in the offense and the quantity of heroin he distributed over time. Cooperating witnesses Maurice Pfeiffer, John Romero and Juan Mercedes and case agent Tom McNally testified. Based on that testimony, the court found that the relevant conduct dated back to 1989 and that petitioner's drug dealing from that period was part of the same course of conduct for purposes of relevant conduct under the Sentencing Guidelines. Although the court was not satisfied that petitioner was acting as a partner with Willie Torres so as to warrant a supervisor or leader upward adjustment of three or four levels (Sentencing Transcript ("Sent.") at 3), it did find that petitioner's conduct warranted a two level upward adjustment for his role as a manager, because it was clear that petitioner had others working for him. Sent. at 2.
The court also found that Mr. Pfeiffer's testimony that petitioner was involved in more than 18 kilos of sales of heroin was credible, as was Pfeiffer's testimony that sales of 9.2 kilos were attributable to petitioner for the 1995-1996 period. The court found that petitioner himself acknowledged that he distributed 600-700 grams of heroin during the 1997-1998 period. However, the court noted that the government only had requested that the petitioner be attributed more than 3 kilos of sales. The court stated, "[s]o even if I were to substantially discount the 18 kilos and the 9 kilos, there's no question in my mind that the government has established that this defendant has distributed more than 3 kilos, which imposes level 34." Sent. at 4. In total, the court enhanced petitioner's guideline level by two points for his role as a manager and relevant conduct, reduced his level by two points for the global plea, and reduced it three more points for acceptance of responsibility. This resulted in a total offense level of 31 at a criminal history category of II, which meant that the guidelines range was 121 to 151 months. Petitioner was sentenced on July 1, 1999 to 121 months of imprisonment.
Petitioner's 28 U.S.C. § 2255 Motion
In his original motion papers, filed in this court on June 30, 2000, petitioner raised the following claims: (1) the appeals court made an error by not accepting petitioner's appeal; (2) audiotapes were admitted to the grand jury in error because they were not properly authenticated; (3) Special Agent McNally's statement to the grand jury was false testimony that prosecutors had an obligation to correct; (4) this court made an error by failing to specify the evidence upon which it relied in finding the petitioner responsible for an additional nine kilograms of heroin; (5) this court erred in not accepting petitioner's downward departure request; (6) this court erred in accepting Mr. Pfeiffer's testimony and attributing a manager's role to petitioner and in enhancing petitioner's sentence for relevant conduct; and (7) petitioner's attorney was ineffective because he caused petitioner to plead guilty to a conspiracy in which he had no involvement.
On July 7, 2000, petitioner filed an "Amended 28 U.S.C. § 2255 motion, Motion to dismiss the indictment for outrageous government conduct and memorandum of law" contesting the evidence that was presented to the grand jury. On December 28, 2000, petitioner filed a "Third Amendment Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255" in which he challenged the manager's role and relevant conduct two point enhancement as a violation of Apprendi v. New Jersey, 530 U.S. 466 (2000) and also claimed ineffective assistance of trial counsel for: (1) Failure to move to suppress the tapes that were presented to the grand jury; (2) coercing petitioner into pleading guilty against his free will; and (3) not appealing the sentencing decision of this court when counsel promised petitioner that he would. Petitioner claims that, had it not been for counsel's neglect, he would have gone to trial and that counsel's performance undermined the outcome of the proceedings.
To begin with, all of petitioner's claims, except his ineffective assistance of counsel claim and his Apprendi claim, discussed below, are barred by the terms of his plea agreement. That agreement provides that petitioner "will not file an appeal or otherwise challenge the conviction or sentence" if the court imposes a sentence not greater than 188 months. Petitioner was sentenced to 121 months. Agreements to waive the right to appeal or to file a collateral attack as part of the plea agreement, if knowingly and voluntarily made, have been recognized as valid and enforceable in the Second Circuit. Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001); Pena v. United States, 201 F. Supp.2d 231, 233-35 (S.D.N.Y. 2002). Petitioner's agreement that he would neither appeal or "otherwise challenge" his conviction clearly applies to this § 2255 petition. See Triujillo v. United States, 1993 WL 227701 at *3 (S.D.N.Y. June 21, 1993, aff'd mem., 33 F.3d 49 (2d Cir. 1994). ("Without alleging a constitutional or jurisdictional violation, it is an anathema to allow one who has voluntarily waived his right to appeal to attack the sentence collaterally.") Furthermore, on February 15, 2000, the Court of Appeals for the Second Circuit dismissed petitioner's appeal as barred by the terms of the plea agreement and, therefore, this issue has been ruled upon.
However, in Frederick v. Warden, 308 F.3d 192 (2d Cir. 2002), the Court of Appeals for the Second Circuit recently held that a waiver in a plea agreement of the right to appeal or collaterally attack a guilty plea was unenforceable to the extent that it would preclude "an attack on the validity of the process by which the waiver has been procured, here, the plea agreement." Id. at 195. The full implications of this decision are unclear; however, since all of petitioner's claims, except the ineffective assistance of counsel claim and the Apprendi claim, do not attack the validity of the process by which the plea was obtained, those claims are barred by the terms of the plea agreement. Insofar as Frederick may provide a basis on which petitioner's ineffective assistance of counsel claims and his Apprendi claim are not barred by the terms of his plea agreement, those claims are addressed below.
Ineffective Assistance of Counsel
In order to prevail on an ineffective assistance of counsel claim, petitioner must show both that his counsel's performance fell below the objective standard of reasonableness dictated by prevailing professional norms and that there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Under the first prong, a court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689.
To establish the second, "prejudice" prong, a petitioner must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A "reasonable probability" in this context is one that undermines confidence in the outcome of the proceeding. Id. at 694. In the plea context, the second prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the `prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
Petitioner claims that his trial counsel's performance was deficient because: (1) he failed to move to suppress the wiretap tapes that were presented to the grand jury because they were not authenticated; (2) he coerced petitioner into pleading guilty against his free will; and (3) he did not appeal the sentencing decision of this court when he promised petitioner that he would. Petitioner claims that, had it not been for counsel's ...