United States District Court, S.D. New York
January 13, 2004.
WILFREDO BAUTISTA, Petitioner, -against- UNITED STATES OF AMERICA, Respondent
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT and RECOMMENDATION
Wilfredo Bautista ("Bautista") has made an application, pursuant to
28 U.S.C. § 2255, that his sentence be vacated because: (a) he
received ineffective assistance from his counsel; and (b) he received an
unconstitutional enhanced sentence, due to the quantity of drugs involved
in his case. Specifically, Bautista alleges that his counsel caused him
to enter into a plea agreement that he did not understand. He maintains
that the plea agreement contained a stipulation concerning drug quantity
that prevented him from receiving a mandatory minimum sentence of ten
years imprisonment and exposed him to a greater period of incarceration
than that to which he otherwise would have been exposed. Bautista also
claims that since no jury made a finding, beyond a reasonable doubt,
concerning the quantity of drugs involved in his case, any sentence
imposed upon him that exceeded the statutory maximum for the offense to
which he pleaded guilty, is constitutionally infirm. In addition,
Bautista contends that his counsel failed to urge your Honor to sentence
him below the applicable Sentencing Commission Guidelines range,
although the circumstance that occasioned his commission of the charged
crime warranted that such a request be made. Furthermore, according to
Bautista, his counsel failed to file an appeal on his behalf, although
Bautista asked him to do so.
The respondent opposes Bautista's application. It contends that: 1) the
application is time-barred under the relevant statute of limitations; 2)
Bautista waived his right, through his plea agreement, to make the
instant application to the court; and 3) Bautista is procedurally barred
from asserting claims, in the instant motion, that he did not pursue
through a direct appeal from the judgment of conviction.
Bautista was charged in indictment No. 00 Crim. 579 with conspiring
with others to possess with intent to distribute 50 grams and more of
cocaine base, in violation of 21 U.S.C. § 812, 841(a)(1),
841(b)(1)(A)(iii) and 846. Bautista and his counsel entered into
negotiations with representatives from the government which resulted in a
written plea agreement. Bautista, his counsel and representatives from
the government signed that agreement.
Under the terms and conditions of that agreement, among other things,
the government agreed that it would not file a prior felony information
against Bautista, see 21 U.S.C. § 851, thus reducing the amount of
time that Bautista might otherwise have had to spend in prison, and
Bautista stipulated that the quantity of cocaine base involved in the
conspiracy alleged in the indictment was not less than 1.5 kilograms. The
parties' agreement also contained an analysis of how the sentencing
guidelines might be applied to Bautista based upon his: (i) background;
(ii) acceptance of responsibility for participating in the charged
crime; and (iii) tender of a plea of guilty, which relieved the
government of the burden of expending resources preparing for a trial.
Based upon the parties' analysis of the guidelines, they determined
that the court should sentence Bautista to a term of incarceration within
the range of 188 to 235 months and that Bautista would be subject to a
fine within the range of $20,000 to $4 million.
The parties' plea agreement also contained a proviso that neither a
downward nor an upward departure from the sentencing guidelines range of
188 to 235 months that they had determined was applicable to Bautista,
would be sought from the sentencing court. The parties agreed, further,
that Bautista would neither appeal from nor attack collaterally, pursuant
to 28 U.S.C. § 2255, any sentence within or below the parties'
stipulated guidelines range and that the government would not appeal any
sentence within or above that range. The parties pledged that this
provision of their plea agreement would be binding upon them even if the
court employed a sentencing guidelines analysis that was different from
that which the parties stipulated was applicable to Bautista.
Bautista appeared before your Honor on November 20, 2000, to tender a
plea of guilty to the one-count indictment. Before doing so, Bautista
took an oath through which he swore to give true answers to the questions
put to him during that plea proceeding. Your Honor quizzed Bautista on a
multiplicity of matters at the proceeding, among them: his understanding
of the charge made against him, the rights he would be giving up by
pleading guilty and the voluntariness of his tender of a plea of guilty.
Bautista was also questioned about the plea agreement that he, his
attorney and representatives from the government had entered. Bautista
assured your Honor that he had had an opportunity to discuss the
agreement with his attorney and that he understood the terms and
conditions of that agreement. Bautista also acknowledged that, under the
terms and conditions of the plea agreement, any sentence he received
within the range
of 188 to 235 months or lower, could not be appealed by him. Bautista
also told your Honor that he was aware that his plea agreement was not
binding upon the court.
Bautista appeared before the court for sentencing on March 7, 2001. On
that date, your Honor acknowledged receiving two letters from Bautista,
one in Spanish, the other in English. Through those letters, Bautista
urged the court to sentence him to the ten-year mandatory minimum
sentence prescribed by statute for the offense charged in the indictment.
After explaining that the parties' plea agreement was not binding upon
the court, your Honor released Bautista and his counsel from so much of
their agreement as precluded them from urging the court to impose a
sentence that was below the parties' stipulated guidelines range of 188
to 235 months. Bautista's counsel stated that he could not offer the
court any basis upon which it might depart downward and sentence Bautista
to a period of incarceration below 188 months. Your Honor then advised
the parties that the court had reached the same conclusion.
Thereafter, Bautista was sentenced to 188 months in prison, a period of
incarceration at the low end of the range which the parties and the
court, based on their respective analyses of the Sentencing Commission
Guidelines, found was applicable to Bautista. Your Honor reminded
Bautista of his agreement with the government not to challenge any prison
sentence of 188 months. However, your Honor advised Bautista that there
might be "some very unusual circumstances" under which he "might
conceivably have a right to appeal." Bautista and his counsel were then
instructed to confer and, if they determined that circumstances existed
which would permit Bautista to mount an appeal, to file a notice of
appeal within ten days. Bautista told your Honor that he understood.
On April 17, 2001, Bautista filed a notice of appeal pro se. On that
same date, Bautista requested that your Honor extend the time allotted to
him for filing a notice of appeal. Bautista used a preprinted form to
make that request. The form directed him to explain either the "excusable
neglect" or the "good cause" which led him to fail to file a notice of
appeal within the requisite period of time. Bautista simply circled the
words "excusable neglect" and provided no additional explanation. On July
6, 2001, your Honor denied Bautista's request for an extension of time to
file a notice of appeal.
Curiously, in his reply memorandum of law, Bautista alleges that, at
some point between March 7, 2001, the date on which he was sentenced, and
March 17, 2001, his counsel filed a notice of appeal and then withdrew it
without Bautista's knowledge. Bautista claims that he did not learn of
this until April 17, 2001, the date on which he filed a notice of appeal
pro se and a request for an extension of time to file a notice of
appeal. Elsewhere in the submissions made in connection with the instant
application, Bautista contends that his counsel disregarded his
instructions and did not file a notice of appeal or an appellate brief on
his behalf in accordance with Anders v. California, 386 U.S. 738, 87
S.Ct. 1396 (1967).*fn1 However, no competent evidence is in the record
before the Court that supports Bautista's claim that he directed his
counsel to appeal from the judgment of conviction. Furthermore, the Court
has reviewed the files maintained by the Clerk of Court for this action
and for the criminal action that resulted in Bautista's incarceration;
neither file contains any evidence that a notice of appeal was ever filed
by Bautista's counsel. The absence of such a document from these files is
not surprising given
the sentence that Bautista received and the terms of his plea agreement.
The Court also reviewed the docket sheet maintained by the Clerk of Court
for Bautista's criminal case and failed to find any entry indicating that
a notice of appeal had been filed and/or withdrawn by counsel to
Bautista. In any event, on November 16, 2001, the Second Circuit Court of
Appeals determined not to entertain the appeal Bautista initiated pro se
because the notice of appeal was not filed timely. Bautista criticizes
the determination reached by the Court of Appeals and alleges that it
violated his Fourteenth Amendment rights.
On May 1, 2002, approximately 14 months after he was sentenced,
Bautista made the instant application.
Timeliness of the § 2255 Motion
Bautista contends that his § 2255 application is timely because:
(a) it was filed within one year of the date on which the Court of
Appeals issued its mandate rejecting his appeal; and (b) the doctrine of
equitable tolling is applicable to this case and permits the court to
entertain his request for relief.
28 U.S.C. § 2255 provides, among other things, that:
A 1-year period of limitation shall apply to a
motion under this section. The limitation period shall
run from the latest of 1) the date on which
the judgment of conviction becomes final; 2) the date
on which the impediment to making a motion created by
governmental action in violation of the Constitution
or laws of the United States is removed, if the movant
was prevented from making a motion by such
governmental action; 3) the date on which the right
asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or 4) the date on which
the facts supporting a claim or claims presented could
have been discovered through the exercise of due
In the case at bar, Bautista does not allege that his ability to make
the instant application was impeded in any way by governmental action.
Moreover, Bautista has not established that either: (a) the grounds upon
which he urges the court to vacate his sentence sprang from a newly
recognized right announced by the Supreme Court that was made retroactive
to cases on collateral review; or (b) the facts underlying the claims
asserted by him were withheld from him and could not have been
ascertained by the exercise of due diligence. Therefore, the one-year
limitation period fixed by 28 U.S.C. § 2255 began to run against
Bautista from the date on which his judgment of conviction became final.
Bautista's reliance upon the doctrine of equitable tolling, in an
attempt to avoid the statutory time bar, is misplaced. Equitable Tolling
of the statute of limitations in a § 2255 case can occur only when
extraordinary circumstances are present that permit a court to employ
that doctrine. See Arroyo v. United States, No. 01 Civ. 7164, 2001 WL
1195509, at *1 (S.D.N.Y. Oct. 9, 2001). The record before the Court lacks
factual evidence establishing the existence of extraordinary
circumstances. Therefore, inasmuch as the record makes clear that no
timely appeal from the judgment of conviction was made by Bautista, the
judgment of conviction became final ten business days after it was
entered. See Fed.R.App.P. 4(b)(1), 4(b)(6), 26(a); Moore v. United
States, No. 00 Civ. 4560, 2001 WL 253432, at *8 (S.D.N.Y. March 15,
2001). The judgment of conviction was entered on March 12, 2001. As noted
above, Bautista filed the instant application on May 1, 2002, almost 14
months after his conviction became final. Since none of the above-noted
exceptions to the one-year limitation period for filing § 2255 motion
applies, the Court finds that Bautista's application, that his sentence be
vacated, is barred by the applicable statute of limitations.
Notwithstanding this fact, for the purpose of completeness, the
Court has determined to analyze the claims raised by Bautista through his
§ 2255 motion.
Waiver of the Right to File a Collateral Attack
The respondent contends that under the terms and conditions of the plea
agreement into which Bautista entered, he waived his right to appeal from
or to make a collateral attack upon any sentence imposed upon him that
was within or below the parties' stipulated sentencing guidelines range,
188 to 235 months. Therefore, according to the respondent, the court
should enforce the agreement that Bautista made with the government and
should refrain from entertaining the instant application.
For his part, Bautista maintains that he should not be barred from
making the instant application because the plea agreement, which contains
the above-noted waiver provision, was entered into by him based upon
ineffective assistance he received from his counsel.
Ordinarily, there is no bar to including a waiver of collateral attack
rights in a negotiated plea agreement. See Frederick v. Warden Lewisburg
Correctional Facility, 308 F.3d 192, 195 (2d Cir. 2002). Furthermore,
waivers of this kind are typically enforceable. See Garcia-Santos v.
United States, 273 F.3d 506, 509 (2d Cir. 2001). However, the waiver of a
right to file a motion pursuant to 28 U.S.C. § 2255 is not
enforceable when, as here, the movant claims to have received ineffective
assistance from counsel with respect to the agreement that effected the
waiver. See United States v. Hernandez, 242 F.3d 110, 114 (2d Cir.
2001)(citing Jones v. United States, 167 F.3d 1142, 1145 [7th Cir.
1999]). Therefore, in order to determine the enforceability
of the waiver in the instant case, the Court must review Bautista's
claim of ineffective assistance of counsel.
Ineffective Assistance of Counsel
The Supreme Court has explained that the right to counsel guaranteed by
the Sixth Amendment is the "right to effective assistance of counsel"
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063
(1984)(quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct.
1441, 1449 n.14 ). To determine whether counsel's assistance was
effective, the Supreme Court devised a two-part test. See Strickland, 466
U.S. at 687-696, 104 S.Ct. at 2064-2069. First, a criminal defendant must
show that counsel's performance was deficient; that is, that it fell
below an "objective standard of reasonableness" measured under
"prevailing professional norms." Id. at 687-688, 2064-2065. Second, the
criminal defendant must affirmatively demonstrate prejudice, by showing
that "there is a reasonable probability that, but for counsel's [error],
the result of the proceeding would have been different." Id. at 694,
2068. See also United States v. Javino, 960 F.2d 1137-1145 (2d Cir.),
cert. denied, 506 U.S. 979, 113 S.Ct. 477 (1992). A reasonable
probability has been defined as "a probability sufficient to undermine
confidence in the outcome." See Strickland, 466 U.S. at 694, 104 S.Ct. at
2068. Considerable deference is accorded counsel's performance; counsel
is "strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment." Id. at 690, 2066.
Bautista alleges that his counsel rendered ineffective assistance to
him because: a) Bautista did not understand that the plea agreement into
which he entered foreclosed him from receiving "the mandatory minimum
often years that he expected upon a plea of guilty;" b) the
plea agreement's sentencing guidelines stipulation denied
[Bautista] a possible downward departure; and c) counsel failed to file
an appeal, although Bautista requested that he do so.
Bautista's claim that he did not understand the terms and conditions of
the plea agreement into which he, his counsel and representatives from
the government entered is incredible, given the exchange of questions and
answers between your Honor and Bautista during the plea proceeding held
on November 20, 2001:
THE COURT: In that connection, I have been furnished
with a letter agreement, which we will mark as court
Exhibit 1 to today's proceedings, and it takes the
form of a letter from the government to Mr. Nedick
[Bautista's attorney], dated November 9, 2000. Now,
Mr. Bautista, was this letter read to you in Spanish?
THE DEFENDANT: Oh, yes.
THE COURT: And did you have an opportunity to
discuss it with your counsel?
THE DEFENDANT: Yes, sir.
THE COURT: And did you understand its terms?
THE DEFENDANT: Yes, sir.
THE COURT: Did you then sign the English version
that I have in order to indicate your consent
to its terms?
THE DEFENDANT: Yes, sir.
This colloquy between your Honor and Bautista, while he was under an
oath to give true answers to the questions put to him during the plea
proceeding, undermines any claim that Bautista now makes concerning a
lack of understanding with respect to the terms and conditions of his
Bautista's claim that his counsel was ineffective in negotiating the
terms and conditions of the plea agreement, because that agreement put
constraints on Bautista's ability to seek a downward departure from the
period of incarceration that the parties stipulated would be applicable
to him under their analysis of the sentencing guidelines, is not
supported by the record. Bautista's counsel negotiated a plea agreement
through which the government refrained
from filing a prior felony information against his client, as it
could have done, pursuant to 21 U.S.C. § 851, based upon Bautista's
prior criminal history. In return, the parties stipulated to a sentencing
guidelines range of 188 to 235 months incarceration. They also agreed
that neither party would seek an upward or downward departure from the
stipulated sentencing guidelines range of 188 to 235 months.
Had a prior felony information been filed against Bautista, he would
have been exposed to a mandatory minimum sentence of 240 months.
Therefore, through his counsel's efforts, Bautista was spared the
possibility of serving, at a minimum, approximately four additional years
in prison. The efforts by Bautista's counsel in negotiating an agreement
that decreased the amount of time that Bautista might otherwise have been
required to spend in prison was a reasonable and appropriate strategic
move that was well within the bounds of professional norms. Moreover,
such strategic decisions by counsel do not constitute ineffective
assistance. See Mason v. Scully, 16 F.3d 38, 42 (2d Cir. 1994).
Bautista's reliance upon the provision of his plea agreement that
restricted his ability to seek a downward departure from the parties'
agreed upon sentencing guidelines range, as proof that he received
ineffective assistance from his counsel, is also undermined by events
that unfolded at his sentencing proceeding. As noted above, at the time
Bautista was sentenced, your Honor released him and his counsel from that
portion of the plea agreement which constrained Bautista's ability to
request a downward departure from the parties' stipulated sentencing
guidelines range. However, counsel to Bautista advised the court that he
was unaware of any basis upon which to urge the court to depart downward.
Your Honor then advised the parties that, although the letters Bautista
had sent to the court outlined certain sympathetic factors in his
case, the court, like Bautista's counsel, had concluded that no
circumstances existed that would permit the court to depart downward in
Bautista got the benefit of his bargain with the government: a sentence
of 188 months and, notwithstanding the terms of his plea agreement, the
opportunity to request that your Honor depart downward and sentence him
to a prison term of fewer than 188 months. Consequently, the Court finds
that Bautista's claim of ineffective assistance of counsel, based on the
provision of the negotiated plea agreement that constrained Bautista's
ability to seek a downward departure from the sentencing court, is
Bautista also alleges that his counsel: (i) "kept [him] in darkness
regarding the whole appeal procedure [;]" (ii) did not advise him of the
time constraints on filing an appeal; (iii) did not advise him that he
would no longer serve as Bautista's counsel, thus, requiring Bautista to
have counsel appointed for him to mount an appeal; and (iv) did not file
an Anders brief These allegations are, in part, also undermined by the
record generated at the time Bautista was sentenced.
At that time, your Honor advised Bautista that under the terms and
conditions of his plea agreement his ability to appeal was foreclosed, if
he received a sentence of 188 months in prison. Your Honor also advised
Bautista that there might be some "very unusual circumstances" that might
"conceivably" provide Bautista with a right to appeal. Bautista was
advised by your Honor that if such a circumstance(s) materialized, after
Bautista and his counsel conferred, Bautista would have to file a notice
of appeal within ten days. Bautista was asked whether he understood; he
responded affirmatively to your Honor. Bautista was also advised that if
he could not afford to continue to employ his retained counsel for any
such appeal, the court would appoint counsel
for him free of charge. Bautista was again asked if he understood,
to which he responded affirmatively.
It is not surprising that the court's records do not indicate that an
appeal was filed on Bautista's behalf by his counsel since, by the
express terms of the plea agreement, Bautista had waived his right to
appeal a sentence within the range of 188 to 235 months. Furthermore,
since Bautista's claims that his counsel filed a notice of appeal on his
behalf and withdrew it, and that he directed his counsel to file an
appeal, are not supported by competent evidence in the record, the Court
finds these claims to be unworthy of belief. Under the circumstances,
absent competent evidence in the record that Bautista requested that his
counsel appeal from the judgment of conviction, it cannot be said that
Bautista's counsel provided ineffective assistance to him when he did no
more than abide by the terms and conditions of the parties' plea
Based on the above, the Court finds that none of the theories advanced
by Bautista, in connection with his claim that he received ineffective
assistance from his counsel, are valid. Bautista's counsel rendered
effective assistance to him.*fn2 Therefore, in the circumstances of this
case, Bautista's waiver of his right to attack his sentence collaterally
is enforceable. Thus, the
instant application should not have been brought and need not be
entertained by the court.
Procedural Bar to Bautista's Claims
An application made pursuant to 28 U.S.C. § 2255 cannot serve as a
surrogate for a direct appeal. See United States v. Frady, 456 U.S. 152,
165, 102 S.Ct. 1584, 1593 (1982). Therefore, among other things, a movant
such as Bautista may not raise, by way of a § 2255 application, a
constitutional issue which was not raised on appeal unless he can
demonstrate cause for the failure to raise the issue and actual prejudice
resulting from it. See Bousley v. United States, 523 U.S. 614, 622, 118
S.Ct. 1604, 1611 (1998); Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct.
2639, 2643-2644 (1986).
The respondent contends that Bautista's failure to file an appeal bars
him procedurally from raising the claims he has made in the instant
application unless Bautista can show cause for his procedural default and
actual prejudice resulting from it. The respondent is only partly
The Supreme Court has held that a Sixth Amendment claim of ineffective
assistance of counsel that was not raised in a direct appeal from a
judgment of conviction may, nonetheless, be presented to the trial court
in a § 2255 motion. See Massaro v. United States, 538 U.S. 500, 123
S.Ct. 1690 (2003). Therefore, had Bautista filed an application pursuant
to § 2255 timely and he did not his ineffective
assistance of counsel claim could have been entertained by the court even
though it was not raised on direct appeal from the judgment of
conviction. However, the same is not true with respect to Bautista's
claim made under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348
In Apprendi, the Supreme Court explained that it is unconstitutional
for a court to increase the maximum penalty for a crime to which a
criminal defendant is exposed based upon a fact that is not charged in an
indictment, submitted to a jury and proven beyond a reasonable doubt. See
Apprendi, 530 U.S. at 475-476, 120 So. Ct. at 2355. Here, Bautista alleges
that no jury found, beyond a reasonable doubt, the quantity of drugs
involved in his case and, therefore, the rule of Apprendi was violated.
The fact that no jury determined drug quantity in Bautista's case is
irrelevant because Bautista waived his right to have a jury determine the
quantity of cocaine base involved in his case, by a reasonable doubt
standard, when he pleaded guilty and stipulated to drug quantity. See
United States v. Doe, 297 F.3d 76, 91 (2d Cir. 2002). In any event, since
no appeal was made timely on Bautista's behalf, the issue of drug
quantity was never raised through a direct appeal Hence, Bautista must
show cause for his failure to do so. This he has not done. Even if one
were to view his submissions liberally as asserting ineffective
assistance of counsel as the cause for his failure to raise this issue in
a timely appeal, that basis would have to be rejected, based upon the
factors noted above that establish that Bautista's counsel did not render
ineffective assistance to him. Since Bautista cannot clear one of the
hurdles that must be surmounted when a claim has been procedurally
defaulted, he would not be entitled to the habeas corpus relief he seeks
from the court.
As it is untimely, Bautista's application, that his sentence be
vacated, should be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days from
service of this Report to file written objections. See also
Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall
be filed with the Clerk of Court, with courtesy copies delivered to the
chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, New
York, New York, 10007, and to the chambers of the undersigned, 40 Foley
Square, Room 540, New York, New York, 10007. Any requests for an
extension of time for filing objections must be directed to Judge
Rakoff. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A
WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v.
Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049,
1054 (2d Cir. 1993); Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992);
Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v.
Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).