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CZERNICKI v. U.S.

July 2, 2003

PAWEL CZERNICKI, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: John Koeltl, United States District Judge

OPINION AND ORDER

The petitioner, Pawel Czernicki, moves pursuant to 28 U.S.C. § 2255 to vacate the sentence imposed following his conviction, pursuant to his guilty plea, for conspiracy to produce and transfer identification, false identification and immigration documents, in violation of Title 18, United States Code, Sections 371 and 1028(f). Czernicki argues that his sentence should be vacated because the Government was allegedly involved in an unconstitutional search and seizure at 155 Huron Street and because the Government allegedly engaged in outrageous conduct in connection with that search and using the fruits of that search. The petitioner contends that the Government was in fact involved in what the Government has asserted was a private burglary at 155 Huron Street. The petitioner also moves for discovery, including unsealing the guilty pleas and sentencing of two individuals involved in the burglary at 155 Huron Street in order to support his contention of government involvement. For the reasons set forth below, the petition is dismissed, and the motion for discovery is denied.*fn1

I.

Czernicki's conviction arose out of an investigation which, the Government contends, began on December 17, 1998, when an individual (the "informant") who had previously provided the Government with information regarding criminal activity contacted Immigration and Naturalization Service ("INS") Special Agent Ira Lieberman. (Aff. of Ira Lieberman ("Lieberman Aff.") sworn to Dec. 29, 1998 ¶ 6.) The informant and another individual then met with Special Agent Lieberman and another agent. They advised the agents that, on December 16, 1998, they, along with two other individuals, had forcibly entered and removed documents from Apartment 5 at 155 Huron Street, Brooklyn, New York. (Lieberman Aff. ¶ 8.) The apartment belonged to Czernicki's co-defendant.*fn2 (Lieberman Aff. ¶ 9.) Two of these individuals provided the INS with information and the documents, which were determined to be real and counterfeit passports and visas. (Lieberman Aff. ¶ 9.) In an affirmation submitted in connection with the prosecution of Czernicki, Special Agent Lieberman swore that he had never heard about the robbery until the informant advised him about the event after it had already occurred. (Aff. of Ira Lieberman ("Lieberman Aff.") sworn to April 30, 1999 ¶ 10.) The investigation prompted by these documents led to Czernicki's ultimate arrest and conviction.

The petitioner pleaded guilty, pursuant to a plea agreement dated July 6, 1999, to one count of conspiracy to produce and transfer identification, false identification and immigration documents, in violation of Title 18, United States Code, Sections 371 and 1028(f). (Plea Agreement dated July 6, 1999 ("Plea Agreement") attached as Ex. C to Letter of Andrew J. Ceresney dated December 20, 2001 ("Ceresney Letter").) On May 3, 2000, Czernicki was sentenced principally to 39 months in custody, followed by three years of supervised release, and a fine of $7500. (Tr. dated May 3, 2000 attached as Ex. F to Ceresney Letter at 20-21.) The Court sentenced the defendant to two months below the Guideline Sentencing Range specified in the plea agreement because the Court downwardly departed upon a finding that the Criminal History Category had overstated the defendant's criminal history.

II.

The petitioner alleges that his sentence should be vacated or modified based on alleged violations of his Fourth Amendment right to be free from unreasonable searches and seizures and his Fifth Amendment right to substantive due process, arising from alleged Government involvement in the burglary of 155 Huron Street.

The petitioner's guilty plea waived his ability to raise these claims. "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973); see also United States v. Arango, 966 F.2d 64, 66 (2d Cir. 1992) ("By pleading guilty, however, [the defendant] waived his right to object to the constitutionality of the search of the van.")

At his guilty plea allocution, under penalty of perjury,*fn3 the petitioner confirmed that he was competent to enter a plea and was satisfied with the representation of his attorney; that he had reviewed and understood the charges against him; that he understood the Government's burden should he choose to go to trial; that the petitioner understood all of his rights and was waiving them; and that he was knowingly and voluntarily entering a plea of guilty. (Tr. dated Jul. 6, 1999 attached as Ex. D to Ceresney Letter at 17-25.)

Thus, because the petitioner knowingly, voluntarily, and intentionally pleaded guilty on July 1, 1999, the petitioner's claims relating to the alleged unconstitutionality of the prior search and seizure are not a basis to vacate or modify his sentence. See Chapman v. Vanzandt, No. 96 Civ. 6940, 1997 WL 375668, at *2-3 (S.D.N.Y. Jul. 08, 1997).

In addition, Czernicki waived this argument when he knowingly and voluntarily signed the Plea Agreement with the United States Attorney for the Southern District of New York. The Plea Agreement provides that "the defendant will neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated Sentencing range. . . ." (Plea Agreement at 4.) The stipulated sentencing range was 41-51 months and the Court actually sentenced the petitioner below that range to 39 months imprisonment.

The Second Circuit Court of Appeals has held such waivers enforceable:

In no circumstance . . . may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, 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) (per curiam); see also United States v. Djelevic, 161 F.3d 104, 106-07 (2d Cir. 1998) (upholding plea agreement waiver provision); Henriguez v. U.S., No. 02 Civ 1663, 2003 WL 21242722, at *1 (S.D.N.Y. May 29, 2003).

At his plea allocution, Czernicki affirmed, under penalty of perjury, that he was satisfied with the representation of his attorney; that he had reviewed and understood the charges against him; that he fully understood the Plea Agreement; that he was knowingly and intentionally entering into the Plea Agreement; and that he understood that the agreement waived his right to appeal or challenge under 284 U.S.C. ยง 2255 any sentence within or below ...


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