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United States District Court, S.D. New York

March 5, 2004.

JESUS A. RAMOS, Petitioner, -against- UNITED STATES, Respondent

The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge


Before the Court is Petitioner Jesus A. Ramos's, a/k/a "Tone," ("Ramos" or "Petitioner") pro se motion pursuant to 28 U.S.C. § 2255 (" § 2255") to vacate, set aside or correct his conviction. Petitioner claims (1) a violation of Rule 11 of the Federal Rules of Criminal Procedure and (2) ineffective assistance of counsel. For the reasons outlined below, Petitioner's motion is denied.


  On August 16, 1995, Ramos, represented by counsel, pled guilty to a two count Superceding Indictment charging him with conspiracy to murder and conspiracy to assault with a dangerous weapon. The indictment was brought in connection with Ramos's membership in the "Head Crackers," a street gang operating principally in the Bronx, New York.

  On April 29, 1996, Ramos, represented by new counsel, Page 2 moved to withdraw his guilty plea. Petitioner claimed to possess a basis for withdrawal because this Court "failed to inform [him] of the effects of a violation of the term of supervised release" during the plea allocution. See July 1999 Filing at 3. The Court denied Petitioner's motion and sentenced him to 13 years incarceration (the statutory maximum of 10 years on Count One and the statutory maximum of 3 years on Count Two, with the terms running consecutively). As a curative measure, because the Court did not specifically advise Petitioner of any effects of violating supervised release, the Court did not sentence Petitioner to a term of supervised release.

  After this sentence was rendered, Petitioner timely filed a notice of appeal to the United States Court of Appeals for the Second Circuit challenging the constitutionality of 18 U.S.C. § 1959, to which he pled guilty. Petitioner raised no other issues at that time.

  On November 17, 1997, the Second Circuit rejected Petitioner's challenge of § 1959's constitutionality and affirmed his conviction. See United States v. Torres, 129 F.3d 710, 713 (2d Cir. 1997). Petitioner's conviction became final on February 16, 1998. This determination was made by the Second Circuit, which calculated February 16, 1998 as the last day for filing a timely writ of certiorari Page 3 petition according to Supreme Court Rule 13.1. See Second Circuit Mandate, Feb. 6, 2003 at 1. Rule 13.1 states that a writ of certiorari must be filed within ninety days after entry of judgment.

  On November 7, 1998, Petitioner, pro se, filed a motion pursuant to 28 U.S.C. § 2255 seeking to "vacate, modify, or correct" his sentence. See Petitioner's Motion dated November 7, 1998 at l ("November 1998 Filing"). Petitioner's November 1998 Filing, which set forth four issues, indicated a "memorandum of facts to follow" and also indicated that Petitioner intended to "reserve the right to amend [his] issues." Id. By way of a letter to Petitioner, the Pro Se Office acknowledged that it had received Petitioner's papers on November 12, 1998. This letter also instructed Petitioner not to submit subsequent papers until he received a docket number. On February 10, 1999, Petitioner received a second letter providing notice of that docket number.

  On June 21, 1999, the Government filed its opposition to Petitioner's motion. See Government's Opp. dated June 1999. The Government contended that Petitioner's motion should be dismissed for "failure to state claim upon which relief may be granted because it set forth no facts or law to which the government could respond." See Government's Page 4 Opp. dated June 1999 at 3. The Government also argued that "the one — year statue of limitations period governing § 2255 petitions expired on February 15, 1999, so any subsequent petition was procedurally barred, unless Ramos could show `extraordinary circumstances' sufficient to justify tolling the applicable limitations period." See Government's Opp. dated April 2001 at 2 quoting Government's Opp. dated June 21, 1999 at 4-5.

  On July 28, 1999, Petitioner filed a memorandum of law ("July 1999 Filing") in support of his November 1998 Filing. In this July 1999 Filing, Petitioner sought to vacate, set aside, or correct his sentence on two grounds. Petitioner claimed that (1) "counsel rendered ineffective assistance when he failed to appeal the trial court's ruling regarding Petitioner's rule 11 issue" and (2) "the district court reversible [sic] erred when, in its effort to cure the prejudice to Petitioner by its violation of rule 11, it imposed a sentence without supervised release." See July 1999 Filing at 3, 8.

  On August 28, 2000, this Court issued a Memorandum Opinion and Order instructing Petitioner to file an amended petition by October 27, 2000 "stating why this Court should. consider his petition as timely." See Memorandum Opinion & Order dated Aug. 28, 2000 at l. In a document dated October Page 5 16, 2000, Petitioner filed an amended petition ("October 2000 Filing") claiming that the November 1998 Filing properly tolled the one — year statute of limitations, thereby making the July 1999 filing timely. See generally October 2000 Filing. In a Memorandum Opinion and Order issued on June 25, 2001, the Court disagreed with Petitioner's assertion. Instead, the Court found that "although [Petitioner] filed notice of petition on November 7, 1998, that notice merely stated four unsupported broad `issues' upon which it was purportedly based," and that the amended July 1999 Filing was time barred by the Antiterrorism and Effective Death Penalty Act of 1996's ("AEDPA") one — year statute of limitations. See Memorandum Opinion and Order dated June 25, 2001 at 1. Under this one — year statute of limitations, this Court reasoned, February 15, 1998 was the last possible day that Petitioner could have brought his § 2255 motion. The Court found, however, that in light of the two letters from the Pro Se Office, equitable tolling applied. This Court tolled the statute of limitations for three months, but determined that the extra three months still failed to make Petitioner's motion timely:

  The first letter [from the Pro Se Office] directed Ramos not to submit any further materials until he received a docket number, and the second letter advising him of the docket number arrived too close to February 15, 1999 for him to prepare an Page 6 adequate supplement by that deadline. This Court can only toll Ramos' AEDPA deadline for those three months in which he was instructed not to submit papers, for the doctrine of equitable tolling "does not reset the date from which the one — year statute of limitations begins to run.'

 Memorandum Opinion & Order, dated Au.28, 2000 at 3.

  On July 9, 2001, Petitioner, pro se, filed an appeal to the United States Court of Appeals for the Second Circuit from the judgment this Court entered on June 25, 2001 denying his § 2255 as time barred. By mandate dated February 6, 2003, the Second Circuit vacated the Court's August 28, 2000 Opinion. The circuit court reasoned that this Court should have deemed the July 1999 filing an amendment of a timely filed petition. The appeals court did not take a position with respect to the merits of the claims. See Mandate of Second Circuit dated February 6, 2003. Accordingly, the Second Circuit remanded Petitioner's motion for consideration on its merits as a timely filed 28 U.S.C. § 2255 motion. Id.



I. Impact Failing to Advise of sanctions for Violating Supervised Release
  Rule 11(b)(1) states that "[before] the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court." Fed.R.Crim.P. Rule 11(b)(1). Page 7 In addition, Rule 11 requires that "[d]uring this address, the court must inform the defendant of, and determine that the defendant understands" certain criteria. These criteria include "any maximum possible penalty, including imprisonment, fine, and term of supervised release," as stated in section (h) of Rule 11. Id. Ramos argues that because the Court did not specifically inform him of any sanctions he might face if he violated a term of supervised release, he was not properly informed of the maximum possible penalty he could receive. Petitioner's motion fails because the Court's omission of the consequences of a violation of a term of supervised release does not cross the threshold required to provide collateral relief.

  "[A] § 2255 movant can successfully challenge a guilty plea conviction based on a Rule 11 violation only by establishing that the violation constituted a `constitutional or jurisdictional' error, or by showing that the error resulted in a `complete miscarriage of justice' or in a proceeding `inconsistent with rudimentary demand of fair procedure.'" See Lucas v. United States, 963 F.2d 8, 12-13 (2d Cir. 1992) (citing United States v. Timmreck, 441 U.S. 780, 783-784 (1979)). Petitioner "should also demonstrate that he was prejudiced by the violation because he did not understand the consequences of his plea, or that, Page 8 if he had been properly advised, he would not have pled guilty." Id. Ramos fails to meet this standard. Even if the Court were willing to consider the failure to advise the defendant of the consequences of violating supervised release to be a "miscarriage of justice" or "inconsistent with . . . fair procedure," which the Court is not willing to do, Petitioner was in no way prejudiced. By not sentencing Ramos to any term of supervised release, the Court cured any possible error and alleviated any possible prejudice to the Petitioner. Thus, Ramos's rights have not been violated and any error is harmless.

  Rule 11(h) states: "A variance from the requirements of [Rule ll] is harmless error if it does not affect substantial rights." Fed.R. Crim. P. 11(h). Thus, "[Rule ll] Subdivision (h) . . . rejects the extreme sanction of automatic reversal." See Advisory Committee Note to 1983 Amendment. The Second Circuit has stated that section (h) was included "to make clear that guilty pleas `should not be overturned, even on direct appeal, where there has been a minor and technical violation of Rule 11 which amounts to `harmless error'" United States v. Ferrara, 954 F.2d 103, 106 (2d Cir. 1999) (quoting Advisory Committee Note to 1983 Amendment). Rule 11(h) was "intended to cover such minor errors as a modest understatement of the maximum penalty, Page 9 where the penalty actually imposed did not exceed the maximum as erroneously represented by the court." United States v. Renaud, 999 F.2d 622, 624-625 (2d. Cir. 1993). Petitioner's situation is the exemplification of a formal, technical and non — substantive violation resulting in harmless error. Ramos's actual sentence did not exceed the maximum represented to him at his plea allocution.

  In United States v. Timmreck, 441 U.S. 780 (1979), Petitioner collaterally attacked his conviction pursuant to § 2255 claiming a Rule 11 violation. Timmerick's claim was based on the fact that the district court could did not mention the mandatory special parole term of at least three years facing the defendant. Id. at 782. Instead, Petitioner was told that he could receive a sentence of 15 years imprisonment and a $25,000 fine. Petitioner was sentenced to 10 years incarceration, a special parole term of 5 years, and a fine of $5,000. The Supreme Court characterized the unmentioned mandatory special parole term of at least 3 years as a "formal" or "technical" violation of Rule 11 and rejected the collateral challenge. Id. at 783, 784. Critical to the Supreme Court's reasoning was the fact that Timmreck's sentence did not exceed the maximum sentence of 15 years incarceration he was told he might receive. Page 10

  Similarly, Ramos's sentence of consecutive terms of 10 years and 3 years incarceration does not exceed what Petitioner was told could be his maximum sentence. Ramos was told he faced a maximum of thirteen years incarceration followed by upwards of 4 years supervised release. The absence of specific instruction to Petitioner regarding what exactly the consequences would be if a term of supervised release were violated is not prejudicial because the Court cured the defect by not sentencing him to a term of supervised release. This reasoning is consistent with that set forth in the Advisory Committee's notes. The notes state, "where the judge's compliance with subdivision (c)(2) was erroneous in part that the judge understated the maximum penalty somewhat, but the penalty actually imposed did not exceed that indicated in the warnings," it is to be considered harmless error. See Advisory Committee Note to 1983 Amendment (quoting United States v. Peters, No. 77-1700 (4th Cir., Dec. 22, 1978)). Thus, Petitioner's Rule 11 claim fails because, as this Court cured the omission by not imposing a term of supervised release, the error is harmless. Page 11


II. Petitioner Fails to Overcome the Presumption That His Counsel Was Effective and Demonstrate Affirmatively That He Was Prejudiced
  Ramos's claim that his counsel rendered ineffective assistance by failing to appeal the Court's ruling regarding the Rule 11 issue is without merit. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established the standard of reasonably effective assistance for the performance of defense counsel in a criminal case. In order to prevail on a claim of ineffective assistance, a defendant must both overcome a strong presumption that the counsel's conduct was reasonable and "affirmatively prove prejudice." Id. at 668, 687-89, 693-94. If these elements are satisfied, then it may be determined that counsel was "not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687. Petitioner fails to meet both standards set out in Strickland.

  First, Petitioner has not presented any evidence capable of overcoming the strong presumption that his counsel acted reasonably. As already discussed, failing to warn Ramos of the consequences of non — compliance with the terms of supervised release was harmless error. In order to provide a basis for appeal, the alleged error must rise to the level of reversible error. Recognizing this reality, as Page 12 well as the reality that filing a frivolous appeal is against both the rules and ethics governing lawyers' conduct, it was reasonable for Ramos's counsel to elect not to file an appeal.

  Second, Petitioner cannot affirmatively prove that his counsel's actions resulted in prejudice to him. For the reasons previously set forth, he cannot demonstrate that the result would be any different than the present reality had appellate counsel raised an issue concerning a Rule ll violation. That is, even if counsel did bring the claim, the Court would have identified the error as harmless, rejected Ramos's appeal and left him in no better position than the one he currently finds himself in.


  For the reasons stated herein, Ramos's Petition is hereby dismissed. This case is closed and the Court directs the clerk of the court to remove this case from the court's active docket.



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