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United States District Court, Southern District of New York

May 22, 2003


The opinion of the court was delivered by: Robert W. Sweet, United States District Judge.


Petitioner Max Olaya-Rodriguez ("Olaya-Rodriguez" or the "Petitioner") has filed a petition pro se pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence of 135 months' incarceration and a five-year supervised release imposed by this Court. The United States (the "Government") has opposed the petition which will be denied for the reasons set forth below.

Prior Proceedings

Olaya-Rodriguez pled guilty without a plea agreement on December 1, 1999 before the Honorable Allen G. Schwartz to a one-count indictment which charged him and thirteen co-defendants with participating from 1996 to mid-1998 in a conspiracy to possess with intent to distribute and to distribute heroin, in violation of 21 U.S.C. § 846. During his plea allocution, Olaya-Rodriguez admitted that in 1997 and 1998 he had transported for a co-defendant a total of approximately $400,000 in proceeds from the sale of heroin. Olaya-Rodriguez moved prior to sentencing for downward departure on several grounds, which the Government opposed.

Olaya-Rodriguez was sentenced on May 19, 2000, at which time there were two contested sentencing issues: whether the base offense level was 38 or some lower number, and whether a two-level downward departure was warranted on the ground that Olaya-Rodriguez was a "minor participant" in the heroin conspiracy. See U.S.S.G. § 3B1.2(b). The Court denied the request of Olaya-Rodriguez for a downward departure and imposed a sentence of 135 months, at the bottom of the range, in addition to a five-year term of supervised release.

Represented by new counsel on appeal, Olaya-Rodriguez challenged the sentence on three grounds: (1) that the Court erred in setting a base offense level of 38 and holding the defendant responsible for in excess of thirty kilograms of heroin; (2) that the Court erred in denying the defendant a "minor role" downward departure; and (3) that the Court erred in sentencing the defendant to a five-year term of supervised release. In a summary order addressing the Olaya-Rodriguez's appeal and that of three co-appellants, the Court of Appeals rejected these contentions. United States v. Bonilla, 2001 WL 792179 (2d Cir. July 11, 2001).

On or about June 3, 2002, Olaya-Rodriguez filed a petition raising ten principal reasons for vacating his sentence on the grounds of the ineffective assistance of his counsel with respect to the minor role adjustment, his assistance to the Government, the quantity of the drugs involved, the sufficiency of the evidence, a failure to comply with Apprendi v. New Jersey, 530 U.S. 466 (2000), his guilty plea, the lack of a Fatico hearing, his pretrial detention, his consent to deportation, and the infractions of four lawyers whom he had discharged.

Following the untimely death of Judge Schwartz, this action was reassigned. The petition, the Government's opposition and Olaya-Rodriguez's reply were marked fully submitted on April 16, 2003.

The Petition is Procedurally Barred Except For the Ineffective Assistance of Counsel Claim

To the extent that Olaya-Rodriguez has raised issues that he, with new appellate counsel, failed to raise in his direct appeal of his sentence, he is procedurally barred from doing so in this action. It is well-established that "if a petitioner failed to assert a claim on direct review, he is barred from raising the claim in a subsequent § 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom or that he is `actually innocent' of the crime of which he was convicted." DeJesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998). "`Cause' . . . must be something external to the petitioner, something that cannot be fairly attributable to him." Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993) (per curiam) (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)). Olaya-Rodriguez does not contest his guilt and has not demonstrated any cause for his procedural default.

One exception to this procedural default rule is for claims of ineffective assistance of counsel. Such claims may be brought in a Section 2255 proceeding whether or not the petitioner could have raised them on direct appeal. Massaro v. United States, ___ U.S. ___, 123 S.Ct. 1690, 1694, ___ L.Ed.2d ___, (2003) (abrogating Billy-Eko v. United States, 8 F.3d 111, 114-15 (2d Cir. 1993)). As a result, Olaya-Rodriguez's ineffective assistance of counsel claims will be dealt with separately.

In addition, in certain instances, as will be discussed below, Olaya-Rodriguez has raised issues that were in fact raised by his appellate counsel and were decided by the Court of Appeals against Olaya-Rodriguez. "[S]ection 2255 may not be employed to relitigate questions which were raised and considered on direct appeal." Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986) (per curiam).

The standard by which trial counsel can be deemed constitutionally ineffective is a strict one. A defendant claiming ineffective assistance of counsel must: (1) overcome a strong presumption that his counsel's conduct was reasonable and show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms"; and (2) "affirmatively prove prejudice," that is, show that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 693-94 (1984); see also Hernandez v. United States, 202 F.3d 486, 488 (2d Cir. 2000) ("[u]nder the Strickland standard, a petitioner must establish both (1) that counsel made errors so serious that defendant was deprived of reasonably competent representation, and (2) that counsel's deficient performance prejudiced the defense"). Only if both of these elements are satisfied can a defendant demonstrate that his counsel made errors "so serious" that "counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment," and that the defendant was, as a result, deprived of a fair proceeding. Strickland, 466 U.S. at 687.

The same standard is appropriate for appellate counsel, who cannot be deemed ineffective for raising but failing to prevail on a given argument, given the strict requirements for a showing of ineffective assistance. "[A]ppellate counsel is not required to raise every colorable claim of error." Soares v. United States, 66 F. Supp.2d 391, 397 (E.D.N.Y. 1999) (citing Jones v. Barnes, 463 U.S. 745, 754 (1983)). An ineffective assistance of appellate counsel claim can succeed if "counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker" and "there was a reasonable probability that the [omitted claim] would have been successful." See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (internal quotation marks omitted).

Olaya-Rodriguez Has Not Established His Counsel Was Ineffective

To prevail on a motion pursuant to 28 U.S.C. § 2255, the petitioner must demonstrate that either "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." 28 U.S.C. § 2255; see United States v. Addonizio, 442 U.S. 178, 185 (1979). The Supreme Court has held that, "an error of law does not provide a basis for collateral attack unless the claimed error constituted `a fundamental defect which inherently results in a complete miscarriage of justice.'" Id. at 185 (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Indeed, "to obtain collateral relief [under § 2255] a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982).

Olaya-Rodriguez has asserted that he was entitled to a minor role downward departure, and that counsel was ineffective for failing to request one. In fact, sentencing counsel did request such a downward departure, and the Court denied the request. Appellate counsel then sought review of that decision, and the Court of Appeals rejected Petitioner's argument as follows:

We reject also Olaya-Rodriguez's contentions that the evidence (a) did not support a finding of his awareness of 30 kilos, and (b) required a minor role adjustment. There is no merit to these contentions. The information furnished by Olaya[-Rodriguez] in his safety valve proffer under U.S.S.G. § 5C1.2(5), together with other information available to the sentencing judge, showed Olaya[-Rodriguez]'s awareness of, and significant participation in, a vast and complex conspiracy involving numerous participants and large amounts of drugs.
Bonilla, 2001 WL 792179, at *1. Therefore, counsel clearly was not ineffective, but simply raised this contention and failed to prevail. Moreover, this claim, concerning only a small variation in the length of the sentence, is not cognizable in a collateral attack on a sentence as constituting a serious violation of Sixth Amendment dimension.

Olaya-Rodriguez has claimed that he was entitled to a downward departure pursuant to U.S.S.G. § 5K1.1 based on his substantial assistance to the Government. Counsel did not make such an application at sentencing. Because new appellate counsel then did not see fit to raise this argument on Petitioner's direct appeal, the claim is procedurally barred at this stage, unless Petitioner can point to evidence outside of the record that appellate counsel could have developed to craft an argument on appeal. See Douglas, 13 F.3d at 47. Olaya-Rodriguez, however, points only to the evidence that was before this Court at sentencing, namely the purported assistance that Petitioner rendered in the course of his safety-valve proffer. Olaya-Rodriguez has presented no colorable argument that he provided the Government with meaningful assistance, and sentencing counsel correctly perceived that this assistance did not merit a downward departure. Olaya-Rodriguez has not shown that the result would have been different had such an argument been raised on appeal, and it was not. Moreover, in addition to the procedural bar, this claim is not cognizable at this stage.

Olaya-Rodriguez renewed his challenge to the determination of setting a base offense level at 38 based on the amount of heroin involved. Like the minor role contention, this contention was raised by appellate counsel and rejected by the Second Circuit in the language quoted above. Bonilla, 2001 WL 792179, at *1. Therefore, not only is the claim not cognizable, but it is procedurally barred and has been determined by this Court as well as the Court of Appeals to be substantively without merit.

Olaya-Rodriguez by his petition has challenged the sufficiency of the evidence to support his conviction for conspiracy to distribute heroin. However, Olaya-Rodriguez was convicted pursuant to a guilty plea. "The . . . elements of a . . . narcotics conspiracy offense are the existence of a conspiracy and the defendant's willful[ly] joining it." United States v. Story, 891 F.2d 988, 992 (2d Cir. 1989). Appellate counsel did not raise this argument on direct appeal, and it is therefore procedurally barred as well.

Olaya-Rodriguez has raised an issue as to the effectiveness of his counsel, based on the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). The Second Circuit has "ruled that Apprendi is inapplicable to Guidelines' calculations that do not result in a sentence on a single count above the statutory maximum for that count." United States v. McLeod, 251 F.3d 78, 82 (2d Cir. 2001) (citing United States v. Garcia, 240 F.3d 180, 183-84 (2d Cir. 2001), cert. denied, 533 U.S. 960 (2001)). See Santana-Madera v. United States, 260 F.3d 133, 141 (2d Cir. 2001) (same). Thus, Apprendi "appl[ies] only when a sentencing court's findings increase the penalty faced by the defendant above the statutory maximum for a given count, and not when they merely affect the length of a sentence within the statutory range." United States v. White, 240 F.3d 127, 136 (2d Cir. 2001).

Apprendi is not implicated in this case because Petitioner's sentence was within the applicable statutory maximum authorized by the charge alleged in the indictment. Accordingly, neither sentencing counsel nor appellate counsel was ineffective in declining to raise this challenge.

Within the points Olaya-Rodriguez labelled "e) Advice [sic] the petitioner not to take a guilty plea, knowing that the court lacked jurisdiction due to a defective indictment" and "f) Bring the issue of a defective [sic] indictment," he appears to seek to raise a challenge to the basis for the guilty plea pursuant to Rule 11(c)(1) and (f) of the Federal Rules of Criminal Procedure. Olaya-Rodriguez contends that "[h]ad petitioner known that it was the government's burden of seeking a Grand Jury indictment to include the type and drug amounts to be proven beyond reasonable doubt and submitted to a jury, petitioner would have opted to present his case before a jury." The claim appears to be based in part on his misconstruction of Apprendi, in part on a supposed lack of evidence "in the record" (id. at 15), and in part based on his alleged failure to make a knowing and intelligent decision to plead guilty.

Of course, Rule 11(f), which requires that the court conduct "such inquiry as shall satisfy it that there is a factual basis for the plea," does not require that there be a sufficient record of evidence such that a reasonable jury could convict a defendant. Rather, all that is required is "that the court assure itself that the conduct to which the defendant admits is in fact an offense under the statutory provision under which he is pleading guilty." United States v. Maher, 108 F.3d 1513, 1524 (2d Cir. 1997). Any error short of this, regardless of deficiency in a court's explanation of the elements of the offense, is harmless. See id.

At Olaya-Rodriguez's plea allocution, the Court conducted an extensive inquiry that established a more than adequate basis for the plea. Olaya-Rodriguez stated that in 1997 and 1998 he transported drug proceeds in four separate trips from New York to Columbia at the behest of the heroin conspiracy's ringleaders, ranging in amount from $70,000 to $160,000 per trip, and that Olaya-Rodriguez was paid approximately five percent of this money for his services. The only uncertainty the Petitioner expressed in his allocution was as to venue, testifying that he knew that his co-conspirator "was working here in New York." Id. at 24. The Government proffered that it would be prepared to offer proof that the conspiracy involved the sale and distribution of heroin in the Bronx, and the Court accepted that offer of proof after defense counsel indicated that he had "no reason to disagree." Id. at 25.

The record also establishes that Olaya-Rodriguez plainly understood the nature of the charges to which he pled guilty, and therefore that the plea satisfied the requirement of Rule 11(c)(1). Olaya-Rodriguez waived the reading of the indictment, indicated that he had received a copy of it and had reviewed it with his lawyer, that counsel had explained the charge to him, that he fully understood it, that he had told counsel everything he knew about this matter, and that the representation and advice given by counsel had been "[e]xcellent." Moreover, the Court asked Olaya-Rodriguez whether he understood that he was "entering a plea to a crime which as set forth in the indictment is a charge which includes the charge of conspiracy," and described the elements of such a charge. Olaya-Rodriguez's understanding of the charges is further illuminated by his testimony as discussed with respect to the factual basis for the plea. Moreover, "[a]ny variance from the procedures required by [Rule 11] which does not affect substantial rights shall be disregarded." Fed.R.Crim.P. 11(h); see United States v. Westcott, 159 F.3d 107, 112 (Rule 11(h) was "enacted to make clear that guilty pleas should not be overturned, even on direct appeal, when there has been a minor and technical violation of Rule 11 which amounts to harmless error" (internal quotation marks omitted)).

Finally, appellate counsel did not raise this argument on direct appeal, and Petitioner's late attempt to withdraw his guilty plea is therefore procedurally barred.

By alleging his counsel failed to challenge the presentence report, Olaya-Rodriguez seeks to reargue the determinations with respect to the presentence report.

Sentencing counsel was not ineffective and in fact vigorously challenged the findings in the presentence report, notably with respect to the quantity of heroin attributable to Olaya-Rodriguez. According to Olaya-Rodriguez, he was prejudiced when his anticipated Fatico hearing was cancelled in light of the fact that such a hearing had already been held with respect to one of Petitioner's co-defendants, but sentencing counsel was quite reasonable in taking the following position:

Judge, I believe that we are ready to go forward with the sentence without the need for a Fatico hearing, because after discussions with [the Assistant United States Attorney] and discussions with my client, I believe essentially that we are arguing different inferences from evidence that has already been presented before you. Thus, I don't see what point would be served by either having Mr. Olaya-Rodriguez testify or asking Detective Malone to come back again or some other evidence.
(Transcript of Sentencing, May 19, 2000, at 2). The Court agreed and defense counsel proceeded to argue the inferences he drew from the evidence, albeit unsuccessfully. This strategic choice cannot be faulted as constitutionally defective. Moreover, appellate counsel presumably agreed by declining to raise such an ineffective assistance claim on direct appeal, and Olaya-Rodriguez's claim is therefore procedurally barred. Finally, Olaya-Rodriguez quibbles with respect to details of the presentence report do not rise to a claim that is cognizable in this petition. Olaya-Rodriguez has also challenged the refusal of the Court to grant a downward departure based on Olaya-Rodriguez's approximately twelve months of pretrial detention in a New Jersey jail. This cannot be an ineffective assistance claim because sentencing counsel in fact did seek a downward departure on this basis. As the Court stated in denying that application with reference to the four different lawyers who had been discharged by Petitioner prior to his sentencing,

Mr. Olaya-Rodriguez, by virtue of his own actions extended the time here — we wanted to try this case a long time ago — and therefore spent a large amount of time in pretrial detention as a result of his own acts in protracting this matter.
(Transcript of Sentencing, May 19, 2000, at 28).

Appellate counsel did not raise this issue on appeal and Olaya-Rodriguez is procedurally barred from raising it now.

Olaya-Rodriguez has alleged that he was entitled to a departure based on his consent to deportation. Again, this application was made by sentencing counsel and denied by the Court because "[t]he record does not reflect that he has a defense to a proceeding for deportation, that he has even a colorable defense or a non-frivolous defense." (Transcript of Sentencing, May 19, 2000, at 26). See United States v. Galvez-Falconi, 174 F.3d 255, 260 (2d Cir. 1999) ("[T]he act of consenting to deportation . . . [does] not constitute [a basis for] a downward departure."). Again, appellate counsel did not raise this issue on appeal, and Olaya-Rodriguez is procedurally barred from raising it now.

Olaya-Rodriguez appears to attack the failure to consider the aggregate quantity of drugs attributable to him. The question of the appropriate drug quantity was settled by this Court and the Second Circuit. Appellate counsel did not raise this issue, and Olaya-Rodriguez's argument is therefore procedurally barred as well as beyond the scope of review on this petition.

Finally, Olaya-Rodriguez has challenged the ineffectiveness of each of the four lawyers he discharged before the appointment of plea and sentencing counsel, ranging from alleged ethical infractions to failure to be current in bar registration fees. None of these claims are cognizable on this motion, and none of the claims with respect to the four lawyers who proceeded plea and sentencing counsel are relevant to this collateral attack on Olaya-Rodriguez's conviction and sentence.


Because of procedural defects and a failure to establish a constitutional claim, the petition will be denied.

As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see also United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915(a) that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).

It is so ordered.


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