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SANTIAGO-DIAZ v. U.S.

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. Page 2

I. BACKGROUND

  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 Page 3 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.) Page 4

  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 Page 5 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.

  II. DISCUSSION

  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 Page 6 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). Page 7 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 ...


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