United States District Court, S.D. New York
January 23, 2004.
DANIEL SANTIAGO-DIAZ, Petitioner against UNITED STATES OF AMERICA, Respondent
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Pro se petitioner Daniel Santiago-Diaz ("Diaz") filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2255 ("§ 2255")
seeking to reduce his sentence following a guilty plea. Under the terms
of a plea agreement with the Government, Diaz pled guilty to a single
count of committing a robbery in violation of the Hobbs Act,
18 U.S.C. § 1951. Diaz claims that he received ineffective assistance of
counsel in violation of his rights under the Sixth Amendment of the
United States Constitution. According to Diaz, his counsel was
ineffective for failing to argue for a reduction in the offense level
based on Diaz's minor role in the crime and his eligibility for the
so-called "safety-valve" reduction. The Government opposes the petition
on the grounds that under his plea agreement, Diaz waived his right to
collaterally attack his sentence, and because he has otherwise failed to
meet his burden for a claim of ineffective assistance of counsel. For the
reasons set forth below, Diaz's petition is denied.
On March 12, 2001, Diaz and two other individuals were arrested in
Manhattan by law enforcement agents moments before attempting to rob
approximately 50 kilograms of cocaine from a drug trafficking group.
Diaz, in exchange for monetary compensation, had agreed to drive one of
the vehicles to be used in the robbery. The agents seized a pair of
gloves, a ski mask and a firearm inside the vehicle Diaz was driving.
(See Daniel Santiago-Diaz Pre-sentence Report, dated Oct. 4,
2002 ("PSR"), at ¶¶ 27, 40-48, 58.)
A Grand Jury originally returned an indictment against Diaz that
charged him with one count of conspiracy to distribute and possess with
intent to distribute five kilograms or more of cocaine. After waiving
Indictment, a Superceding Information was subsequently filed charging
Diaz with one count of conspiracy to commit a robbery in violation of the
Hobbs Act, 18 U.S.C. § 1951*fn1. On August 8, 2002, Diaz pled
guilty before Magistrate Judge Debra Freeman to the single count in the
Superceding Information. Diaz's plea was
pursuant to a written plea agreement with the Government in which
he waived, among various other rights, his right to appeal under §
2255 a sentence within or below the stipulated guidelines range of
incarceration set forth in the plea agreement. (See Diaz Plea
Agreement, dated August 5, 2002 ("Agreement"), at 4.) Diaz also waived
his right to seek a downward departure or any adjustments to the
calculation of the guidelines range that was not set forth in the
Agreement. (See id. at 3.)
Although Diaz signed the Agreement, he informed the Court through his
counsel that the two prior DWI convictions mentioned in the Agreement did
not belong to him. (See Transcript of Plea Proceeding,
United States v. Daniel Santiago-Diaz, No. 01 Cr. 257, Aug. 8,
2002 ("Plea Tr."), at 15:14-23.) Defense counsel stated that if these
convictions were not attributable to Diaz, the guidelines range would be
70 to 87 months incarceration, instead of a range of 78 to 97 months as
set forth in the Agreement. (See id. 15:21-23.) The parties
ultimately stipulated to orally modify the Agreement on the record to
provide for two alternative guideline ranges depending on the outcome of
a further investigation to determine whether the two convictions in fact
belonged to Diaz. (See Plea Tr. at 25:9-27:23.)
The United States Probation Department ("Probation") subsequently
determined that the two DWI convictions contained in the Agreement did
not belong to Diaz, and accordingly calculated a guidelines range of
incarceration of 70 to 87 months. (See PSR at ¶¶ 3, 73-75,
96.) On November 18, 2002, Judge Schwartz reaffirmed Magistrate Judge
Freeman's acceptance of Diaz's guilty plea, adopted Probation's findings,
and sentenced Diaz to 70 months incarceration to be followed by three
years of supervised release. (See Transcript of Diaz
Sentencing, Nov. 18, 2002 ("Sen. Tr."), at 5:4-7:10.)
Diaz brings this § 2255 petition on the grounds that his trial
counsel was ineffective for failing to seek a reduction in Diaz's offense
level prior to sentencing. The gravamen of Diaz's ineffective assistance
of counsel claim is that his counsel failed to raise two arguments prior
to sentencing. First, Diaz argues that his counsel was ineffective for
failing to argue that Diaz was a minor participant in the offense.
Second, Diaz claims his counsel was ineffective for failing to argue that
Diaz was eligible for the safety valve provision of the Sentencing
Guidelines*fn2. (See Memorandum in Support of Petition Under
Section 2255 ("Memorandum"), dated
June 30, 2003, at ¶¶ 6-9.) Diaz further argues that under the
United States Supreme Court's decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000), he can only be charged with the
narcotics conspiracy offenses contained in the original Grand Jury
Indictment. (See id at ¶ 10.) Finally, Diaz asserts that
his counsel failed to fully investigate his case and failed to object to
the pre-sentence report. (See id.) The Government opposes
Diaz's petition on the grounds that Diaz is procedurally barred from
bringing this action under the terms of the Agreement, and because Diaz's
ineffective assistance of counsel claim is otherwise without merit*fn3.
A. SECTION 2255 WRIT OF HABEAS CORPUS
A prisoner in federal custody may file a petition for a writ of habeas
corpus under § 2255 to collaterally attack his sentence if it was
imposed by a court lacking jurisdiction, is in violation of the United
States Constitution or United States law, was excessive under applicable
law, or "is otherwise subject to collateral attack."
28 U.S.C. § 2255. In order to collaterally attack a sentence under § 2255, a
criminal defendant must demonstrate "an error of law or fact
that constitutes a fundamental defect which inherently results in a
complete miscarriage of justice." United States v. Bokun,
73 F.3d 8, 12 (2d Cir. 1995) (internal quotations and citations omitted).
Diaz's sole basis for his collateral attack is that he received
ineffective assistance of counsel during the sentencing phase of the
proceedings, which resulted in a harsher sentence.
B. DIAZ'S PLEA AGREEMENT
The Court construes a plea agreement under general principles of
contract law. See United States v. Palladino, 347 F.3d 29, 32
(2d Cir. 2003). The Agreement states: "It is further agreed (i) that the
defendant will neither appeal, nor otherwise litigate under Title 28,
United States Code, Section 2255, any sentence within or below the
Stipulated Guidelines Range of 78 to 97 months, . . . *fn4."
(See Agreement at 4.) Thus, Diaz explicitly waived
his right to bring a § 2255 action. In return, he avoided facing a
charge of narcotics conspiracy and a probable charge of possessing a
firearm in furtherance of a drug trafficking crime. If convicted of these
offenses, Diaz would have faced a mandatory minimum of ten years
incarceration for the narcotics charge to be followed by a consecutive
mandatory minimum five-year sentence for the firearm possession charge.
See 21 U.S.C. § 841(b); 18 U.S.C. § 924 (c).
It is clear that Diaz reaped his benefit of the bargain. The waiver
provision in the Agreement is unambiguous and the Government is entitled
to the benefit of the bargain as well. See INS v. St. Cyr,
533 U.S. 289, 321-22 (2001) ("Plea agreements involve a quid pro quo
between a criminal defendant and the government.") (citation omitted)
(italics in original).
It is well settled that a criminal defendant's waiver of his right to
appeal a sentence that is within or below the stipulated guidelines range
in a plea agreement is generally enforceable. See,
e.g., United States v. Johnson 347 F.3d 412, 414 (2d
Cir. 2003); United States v. Chen, 127 F.3d 286, 289 (2d Cir.
1997); United States v. Rivera, 971 F.2d 876, 896 (2d Cir.
1992). Such a waiver creates a rebuttable presumption of enforceability
that a defendant can overcome by showing either that (1) the waiver was
not knowing, voluntary, and competent; (2) the sentence imposed was based
on impermissible factors, such as race or other biases; (3) the
Government breached the plea agreement; or (4) the sentencing court
failed to enunciate a rationale for the sentence. See United States
v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000) (citations
omitted). Although Diaz does not mention the waiver provision in his
submissions to the Court, much less attempt to explain why the waiver
should not be enforced, the
Court will consider these four possible grounds for not enforcing
Diaz's waiver provision.
With regard to whether Diaz's waiver of his right to challenge his
sentence was knowing and voluntary, the Second Circuit has explained that
a defendant may not attempt to exercise his right to challenge a sentence
that is within the range in a plea agreement after knowingly and
voluntarily waiving such a right and after securing the benefits of the
plea agreement from the Government. See United States v.
Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993). Doing so "would
render the plea bargaining process and the resulting agreement
The Court finds that Diaz's waiver of his right to challenge his
sentence by means of a § 2255 petition was made knowingly and
voluntarily. The record is devoid of any suggestion to the contrary, nor
does Diaz allege that his waiver was not competent. A review of Diaz's
plea colloquy transcript demonstrates that Magistrate Judge Freeman
carefully followed Rule 11 of the Federal Rules of Criminal Procedure to
assure that Diaz was properly advised of the rights he was waiving under
the Agreement, of the consequences of pleading guilty, and that there was
a factual basis for the guilty plea. (See Plea Tr. at
The Court further notes that during Diaz's plea
proceeding, Magistrate Judge Freeman questioned Diaz as to whether
he was aware of and consented to the waiver of his right to appeal his
sentence. (See id. at 29:2-32:7.) During the parties'
discussions with regard to the issue of the DWI convictions, Magistrate
Judge Freeman expressed concern that the oral modification of the
Agreement on the record may lead to confusion, in particular with Diaz's
understanding of his waiver of appellate rights. (See id. at
15:24-18:19.) To assure that Diaz understood the modification, Magistrate
Judge Freeman questioned him several times regarding his waiver. One of
those exchanges occurred as follows:
THE COURT: If Judge Schwartz were to find that at
least one of the two convictions is not yours, are
you then willing to live with a guidelines range
of 70 to 87 months, so that as long as your
sentence is within that range or below that range,
you waive your right to appeal the sentence?
THE DEFENDANT: No. I would not appeal.
(Id. at 30:10-15.) Diaz was also questioned specifically
regarding his waiver of a collateral challenge to a sentence that is
within or below the stipulated guidelines range as follows:
THE COURT: What I would like to make sure is that
you understand that the waiver that you have just
said that you understand and agree to would not
only be to the Court of Appeals on appeal, but
also any further challenge to Judge Schwartz after
the time of your sentencing. Do you understand
THE DEFENDANT: I do.
(Id. at 32:1-7.) Thus, Diaz's waiver of his right to appeal a
sentence that is within or below the guidelines range was made very clear
to him during his plea colloquy.
Based on Magistrate Judge Freeman's questioning of Diaz during his plea
colloquy and the record as a whole, the Court finds that Diaz knowingly
and voluntarily waived his right to collaterally attack his sentence.
Although the Court is mindful that such waiver provisions should be
construed narrowly, the Court agrees with the Government that the record
in this case clearly demonstrates that Diaz affirmatively waived his
right to bring this § 2255 action in exchange for the Agreement.
See United States v. Difeaux, 163 F.3d 725, 728 (2d
Cir. 1998) ("Although the reviewing court must read the waiver provision
narrowly and construe ambiguous provisions against the government . . .,
the court must also enforce a valid waiver that covers the appellate
issue presented. . . .").
With regard to the other three grounds for not enforcing the waiver
provision, there is nothing in the record to suggest that Diaz's sentence
was imposed based on impermissible biases or that the Government breached
the Agreement, nor has Diaz alleged so in his petition. Finally, Judge
Schwartz did in fact state a rationale for the sentence imposed.
Specifically, Judge Schwartz stated that the he was
accepting the findings of Probation as set forth in the PSR, and
was considering mitigating factors such as the fact that this was Diaz's
first offense. (See Sen. Tr. at 5:4-6:25.) Judge Schwartz
further stated that the sentence imposed is "in recognition of the
seriousness of the crime, to deter this defendant and others, and to
protect the public." (Id. at 8:10-12.) Thus, the other grounds
for rebutting the presumptive enforceability of Diaz's waiver do not
apply to this case.
The Court finds that Diaz's attack on the performance of his counsel is
nothing more than a thinly-veiled endeavor to circumvent the waiver of
his right to challenge his sentence. A claim of ineffective assistance of
counsel is not a vehicle for a criminal defendant to attempt an end-run
around a knowing and voluntary waiver of his right to appeal his
sentence. See United States v. Djelevic, 161 F.3d 104, 107 (2d
Cir. 1998) (rejecting the defendant's ineffective assistance of counsel
claim because it amounted to a challenge of the sentence that was waived
in the plea agreement).
Accordingly, Diaz's § 2255 petition for relief from his sentence is
denied on the grounds that under the explicit terms of the Agreement, he
waived his right to such a petition knowingly and voluntarily and there
is no other basis to hold the waiver provision unenforceable.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Although the terms of Diaz's plea agreement procedurally bars his §
2255 petition, the Court also finds that his substantive ineffective
assistance of counsel claim fails to meet the required legal standard.
Under the United States Supreme Court's test enunciated in
Strickland v. Washington, 466 U.S. 668 (1984), a criminal
defendant must meet a two-prong test in order to successfully make out a
claim of ineffective assistance of counsel. Under the first prong, the
defendant must demonstrate "errors so serious that counsel was not
functioning as the `counsel' guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 687. This burden entails
overcoming the "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 (internal quotations and citations omitted). A court
must look to the totality of the circumstances to determine whether
counsel "failed to exercise the skills and diligence that a
reasonably competent attorney would provide under similar circumstances."
Boria v. Keane, 99 F.3d 492, 496 (2d Cir. 1996) (citation
omitted) (italics in original). The applicable standard of counsel's
conduct is "reasonableness under
prevailing professional norms." Wiggins v. Smith, 123 So.
Ct. 2527, 2535 (2003) (citation omitted).
Under the second prong of Strickland, a defendant must
demonstrate prejudice by showing a reasonable probability that counsel's
error altered the result of the proceeding. See Strickland 466
U.S. at 691 ("An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if
the error had no effect on the judgment."); accord United States v.
Campbell, 300 F.3d 202, 214 (2d Cir. 2002) (stating that both
Strickland prongs must be met in order for a petitioner to
prevail on an ineffective assistance of counsel claim). A reasonable
probability is defined as "a probability sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694. The
"prejudice" prong under Strickland is not simply outcome
determinative, but rather, it focuses on the impact of counsel's
performance on the overall integrity of the proceeding. See Lockhart
v. Fretwell, 506 U.S. 364, 369 (1993); Aeid v. Bennett,
296 F.3d 58, 63 (2d Cir. 2002).
The determination of prejudice is made with the benefit of hindsight,
unlike the determination of whether counsel committed egregious errors in
the first place, which is judged under the circumstances at the time of
the representation. See Lockhart, 506 U.S. at 372;
see also United States v.
Eyman, 313 F.3d 741, 743 (2d Cir. 2002); Mayo v.
Henderson, 13 F.3d 528, 534 (2d Cir. 1994).
Ineffective assistance of counsel under Strickland implicates
a criminal defendant's right to counsel under the Sixth Amendment of the
United States Constitution. See Aparicio v. Artuz, 269 F.3d 78,
95 (2d Cir. 2001) ("Occasionally, the performance of defense counsel is
so dismal that it ripens into the deprivation of counsel altogether and
potentially violates the defendant's Sixth Amendment rights."). As this
Court has noted, however, "[c]riminal defendants asserting ineffective
assistance of counsel are required to satisfy [the Strickland
test] in order to deter a baseless attack on the performance of counsel
in a last-ditch effort to avoid a conviction or reduce the sentence."
Percan v. United States, No. 02 Civ. 7327, 2003 WL 22909147, at
*4 (S.D.N.Y. Dec. 9, 2003); see also Kimmelman v. Morrison,
477 U.S. 365, 382 (1986) (referring to the Strickland test as
"highly demanding"). Accordingly, Diaz carries a heavy burden in setting
forth a claim of ineffective assistance of counsel.
Applying the Strickland standard to the facts in this case,
the Court is persuaded that Diaz has failed to demonstrate that his
counsel's conduct fell below prevailing professional norms. Given the
wide latitude afforded counsel
in representing criminal defendants, the Court finds the failure to
argue for a minor role adjustment did not amount to a deprivation of
Diaz's Sixth Amendment right to counsel.
The Court finds that it was reasonable for Diaz's counsel not to argue
for such a reduction. As a threshold matter, such adjustments were barred
under the terms of the Agreement*fn5. (See Agreement at 3.) Furthermore,
the decision not to seek an adjustment for Diaz's alleged "minor role" is
a strategic choice made by counsel as part of the representation of his
client. It is not this Court's role to second-guess such decisions in
hindsight. See Strickland, 466 U.S. at 689 ("Judicial scrutiny
of counsel's performance must be highly deferential."); United
States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987) (stating that
defense counsel's failed strategy should not be second-guessed).
Finally, the merit of such an argument is doubtful. There is no
indication that Judge Schwartz would have accepted such an argument in
the first place. The fact that Diaz was found to be in possession of a
ski mask, gloves, and a firearm creates a reasonable inference that he
was prepared to commit
an act of violence, thus undermining his alleged minor role*fn6.
Although ineffective assistance of counsel may result in instances when
counsel pursued "clearly and significantly weaker" issues in lieu of
"significant and obvious" issues, Mayo, 13 F.3d at 533, the
Court discerns no such error under the facts of this case.
With regard to counsel's decision not to seek a reduction under the
"safety-valve" provision of the Sentencing Guidelines, the Court finds
this basis for Diaz's claim to be wholly without merit. As the Government
correctly points out, the "safety-valve" provision applies only to
certain narcotics offenses. See 18 U.S.C. § 3553 (f).
Because Diaz was charged with (and pled guilty to) attempted robbery
under the Hobbs Act, he is not eligible for the "safety-valve" provision.
Furthermore, the fact that Diaz was found to be in possession of a
firearm also makes him automatically ineligible for the provision.
See id. The Court thus finds no error by counsel, nor any
prejudice to Diaz, from counsel's failure to argue for a reduction under
the "safety-valve" provision of the Sentencing Guidelines. Accordingly,
the Court concludes that Diaz has not satisfied either element of the
Strickland test to make out a claim for ineffective assistance
of counsel. See
United States v. DeJesus, 219 F.3d 117, 121-22 (2d Cir.
2000) (rejecting defendant's ineffective assistance of counsel claim when
defendant was ineligible for "safety-valve" provision).
The Court further finds Diaz's Apprendi claim to be
meritless. In Apprendi, the Court addressed a challenge to a
state criminal statute that permitted facts that enhanced the punishment
beyond the statutory maximum to be determined by a judge under a
preponderance of the evidence standard. See Apprendi, 530 U.S.
at 468-69. The Supreme Court invalidated the statute and held that "
[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt." Id.
In stark contrast to Apprendi, the penalty in this case has
not been enhanced beyond the prescribed statutory maximum. Diaz pled
guilty to a violation of the Hobbs Act and was sentenced to 70 months
incarceration, which is well below the statutory maximum of 20 years for
this offense. See 18 U.S.C. § 1951. As the Second Circuit
has explained, "[v]iolation of Apprendi arises when the
defendant is sentenced on the basis of a triggering fact not found by the
jury to a sentence that exceeds the [applicable] maximum [sentence
without the triggering fact]. If the defendant's sentence is within the
otherwise applicable maximum, no violation of Apprendi has
occurred. . . ." United States v. Luciano,
311 F.3d 146, 151 (2d Cir. 2002). Thus, because Diaz's sentence did not exceed
the maximum for the offense to which he pled guilty, Apprendi
does not apply.
Contrary to Diaz's suggestion, the Court finds no support in
Apprendi for the proposition that the Government must pursue
only charges in an original Indictment or other charging instrument.
Indeed, as the Government points out, Diaz was facing a much harsher
sentence under the narcotics conspiracy charge contained in the original
Indictment and under a possible firearm possession charge that could have
also been brought under the facts of this case. Accordingly, the Court
finds Apprendi to be inapposite to the facts presented here and
hence, Diaz's reliance on this decision is misplaced.
Finally, the Court also finds meritless Diaz's assertions that his
counsel Mid not investigate his case very well, and failed to object to
the Presentence Investigation Report." (Memorandum at ¶ 10.) These
conclusory statements are insufficient to support a claim of ineffective
assistance of counsel under Strickland. Diaz neither explains
how his counsel failed to investigate his case nor states which specific
objections to the PSR should have been raised. To the extent that these
statements refer to the "minor role" and
"safety-valve" adjustments, the Court has already rejected these
claims for the reasons discussed above. To the extent that the statements
refer to additional grounds for asserting ineffective assistance of
counsel, Diaz has failed to allege facts from which the Court can apply
the Strickland test. Accordingly, Diaz's statements fail to
support his claim of ineffective assistance of counsel.
For the foregoing reasons, the Court finds no merit to Diaz's
substantive grounds for relief from his sentence. Diaz's § 2255
petition is denied on the additional grounds that he has not made the
required showing for a claim of ineffective assistance of counsel.
For the reasons set forth above, it is hereby
ORDERED that petitioner Daniel Santiago-Diaz's ("Diaz")
petition for a writ of habeas corpus to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 is DENIED.
As the Petitioner has failed to make a substantial showing of the
denial of a constitutional right, the Court declines to issue a
certificate of appealability. See 28 U.S.C. § 2253.
The Clerk of Court is directed to close this case.