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BAUTISTA v. U.S.

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

I. INTRODUCTION

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, Page 2 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.

  II. BACKGROUND

  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. Page 3 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 Page 4 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. Page 5

  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 Page 6 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 ...


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