United States District Court, S.D. New York
May 28, 2004.
EEON BRADLEY, Petitioner, -v.- UNITED STATES OF AMERICA, Respondent
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
On June 28, 2002, Leon Bradley pled guilty to one count of conspiracy
to distribute narcotics in violation of 21 U.S.C. § 846. He was sentenced
to a prison term of 108 months. Bradley, who is currently in prison
serving his sentence, has moved this Court pro se under 28 U.S.C. § 2255
to vacate, set aside, or correct his sentence. For the reasons below, the
motion should be denied.
By superseding indictment, Bradley, along with several co-defendants,
was charged with conspiring to violate the narcotics laws. See
Superseding Indictment, undated (reproduced as Ex. C to Letter to the
Hon. Harold Baer, Jr. from Marcus A. Asner, dated March 10, 2004 ("Resp.
Opp.")). The indictment charged that the objects of the conspiracy were
the distribution of over one kilogram of heroin and the distribution of
over five kilograms of cocaine. Id. ¶¶ 2-3. The indictment charged Bradley
with committing several overt acts in furtherance of the conspiracy,
including meeting a co-conspirator in the Bronx to arrange for Bradley to
transport heroin to Baltimore, id. ¶ 4(a), and meeting a co-conspirator
in Baltimore to pick up money to transport to another co-conspirator in payment of a debt for previous purchases
of heroin and cocaine, id. ¶ 4(b).
On June 28, 2002, Bradley appeared before Magistrate Judge Debra C.
Freeman to enter a guilty plea pursuant to a written plea agreement.
Robert Krakow represented Bradley at this appearance. During the
allocution, Bradley stated under oath that he understood the charges
against him, that he was satisfied with Krakow's representation, and that
he wished to enter a plea of guilty. Transcript, June 28, 2002 ("Plea
Transcript") (annexed as Ex. D to Resp. Opp.), at 6. He also stated that
he understood the potential maximum sentence he faced and his right to
plead not guilty and go to trial. Id. at 6-9. The court made clear that
the only step that remained after the plea was entered was the imposition
of a sentence, which would be at the sentencing judge's discretion and
according to the Sentencing Guidelines. Id. at 9-12. Bradley indicated
that he was fully familiar with the terms and conditions of the written
plea agreement and that he had signed it after consulting with his
attorney. Id. at 11-16. When asked if anyone had pressured him to plead
guilty, Bradley responded, "Twenty-five years. That's pressure." Id. at
11. Nonetheless, Bradley affirmed that he was pleading guilty voluntarily
and of his own free will. Id. at 16.
The court then asked the government to specify the elements of the
crime charged and asked Bradley to specify what conduct he had engaged in
that made him guilty of that crime. Id. at 16-26. Bradley stated that on
three occasions he transported money and drugs between New York and
Baltimore, id at 18-23, 25, and that he believed the conspiracy involved
the distribution of at least five kilograms of cocaine, id at 24-26. As part of the written plea agreement, the parties stipulated that the
appropriate sentencing range under the Guidelines was 135 to 168 months'
imprisonment. Letter to Krakow from Jonathan R. Streeter, signed and
dated June 28, 2002 ("Plea Agreement") (reproduced as Ex. E to Resp.
Opp.), at 2-3. The Plea Agreement provided that the parties agreed that
neither an upward nor a downward departure from this range was
warranted. Id. at 3. Nonetheless, the Plea Agreement provided that
Bradley could move at sentencing for a decrease in his offense level
pursuant to the "safety valve" provisions of the Guidelines, sections
2D1.1(b)(6) and 5C1.2. Id.
The parties also agreed "that the defendant will neither appeal, nor
otherwise litigate under Title 28, United States Code, Sections 2255
and/or 2241, any sentence within or below the Stipulated Guidelines Range
set forth above (135 to 168 months)." Id. at 4. The Plea Agreement
further stated that "[t]his provision is binding on the parties even if
the Court employs a Guidelines analysis different from that stipulated to
herein." Id. During the allocution, the court asked Bradley if he
understood that if his sentence was no longer than 168 months, he was
"giving up [his] right to challenge that sentence both on appeal to the
Court of Appeals and also by any further application to Judge Schwartz."
Plea Transcript at 13. Bradley responded that he did so understand. Id.
Following his plea, Bradley met with the government for a "safety valve
proffer." See Report of Investigation, dated January 23, 2003 (reproduced
as Ex. F to Resp. Opp.). As a result, Bradley earned relief from the
statutory minimum sentence of 120 months' imprisonment and a two-level
reduction in his offense level. See Resp. Opp. at 3.
On January 23, 2003, Judge Schwartz sentenced Bradley to a prison term
of 108 months. See id. No appeal was filed from the judgment of
conviction. II. THE INSTANT PETITION
Bradley's motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255 (commonly referred to as a "petition") was received
by the Pro Se Office of this Court on October 20, 2003. See Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in
Federal Custody, filed November 17, 2003 (Docket #1) ("Petition"). In
filling out the portion of the standard form that asks why no appeal from
the judgment of conviction was filed, Bradley states, "Counsel refused to
appeal even though Petitioner requested appeal. Counsel informed the
Petitioner that his plea agreement precluded him from appealing.
Petitioner claims that his counsel was ineffective." Id. at 4. In some
attached pages, Bradley cites law regarding cause, prejudice, deliberate
bypass, and discovery of new evidence, perhaps in an attempt to argue
that his failure to appeal should be excused. See id at 5-7. He then
asserts that he received ineffective assistance of counsel because
counsel did not file an appeal as requested. Id. at 9. Bradley maintains
that he "retained the right to appeal any sentence that was imposed in
violation of the law and in an illegal manner." Id. He also states,
without elaboration, "If not for the conduct of petitioner's counsel, the
petitioner would have pled innocent." Id.
In the section of the form that requires a listing of grounds for
relief, Bradley attaches pages arguing that (1) the court lacked
jurisdiction over him because 21 U.S.C. § 846 violates the Commerce
Clause of the Constitution, see id. at 11; and (2) the court erred in not
granting a downward departure for Bradley's role as a "mule" or
"courier," see id. at 12-14.
In addition, Bradley has submitted "Supplemental Pleadings" including
an affidavit explaining the circumstances of his arrest in Arizona on
October 5, 2001, when apparently over five kilograms of cocaine were found in a car in which Bradley was a
passenger. See Affidavit in Support of Motion for Supplemental Pleadings,
undated (annexed to Motion for Supplemental Pleadings, filed March 1,
2004 (Docket #2) ("Supp. Motion")), ¶ 1. He claims ineffective
assistance with respect to this Arizona case, which appears to be
entirely unrelated to the charge at issue in his Petition. See id. 2.
Then, apparently in relation to the instant Petition, Bradley lists as
grounds for relief: (1) denial of his right to appeal; (2) ineffective
assistance of counsel based on counsel's failure to consult with him
regarding an appeal; (3) lack of subject matter jurisdiction based on the
federal government's unconstitutional usurpation of state powers; and (4)
unconstitutionality of 21 U.S.C. § 846 and related statutes. See
Supplemental Petition, undated ("Supp. Petition") (annexed to Supp.
Motion), at 3-4.
The Government has responded to Bradley's Petition by letter, see
Resp. Opp., attaching an affirmation of Bradley's counsel regarding the
decision not to file a notice of appeal, see Affirmation of Robert J.
Krakow, Esq., dated March 9, 2004 (annexed as Ex. G to Resp. Opp.), ¶¶
1-3. Krakow states that prior to Bradley's guilty plea, he discussed the
waiver of the right to appeal with Bradley and advised him that as long
as the sentence was within or below the stipulated range, he did not
think there would be any legitimate basis for an appeal. Id. ¶ 3. Krakow
maintains that Bradley indicated that he understood and wished to enter
the Plea Agreement nonetheless. Id. He also indicates that he informed
Bradley after sentencing of his right to appeal but that Bradley never
asked him to file a notice of appeal and Krakow never refused to file
such a notice. Id.
Bradley has submitted a Traverse which admits or denies without
elaboration the allegations contained in various "paragraphs" of the
Government's response. See Traverse, filed April 2, 2004 (Docket #3), at 1, 7. It also contains several pages of text
repeating legal principles relating generally to a petitioner's failure
to raise claims on appeal and to ineffective assistance of counsel. See
id. at 2-6. The Traverse does not specifically address Krakow's
assertions regarding Bradley's failure to request that a notice of appeal
28 U.S.C. § 2255 provides:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of
the United States, or that the court was without
jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack,
may move the court which imposed the sentence to
vacate, set aside or correct the sentence.
Relief under § 2255 is available only "for a constitutional error, a lack
of jurisdiction in the sentencing court, or an error of law or fact that
constitutes a fundamental defect which inherently results in [a] complete
miscarriage of justice." Graziano v. United States, 83 F.3d 587, 589-90
(2d Cir. 1996) (per curiam) (internal quotation marks and citation
Bradley faces a threshold problem, however, with presenting this §
2255 petition. As part of his written Plea Agreement and oral plea
allocution, Bradley expressly waived his right to file any § 2255
petition with respect to any sentence at or below 168 months. Plea
Agreement at 4; Plea Transcript at 13-14.
Case law makes clear that a waiver of the right to bring a petition
under § 2255 is enforceable as long as the petitioner's waiver is knowing
and voluntary. See, e.g., Frederick v. Warden. Lewisburg Corr. Facility,
308 F.3d 192, 195-96 (2d Cir. 2002), cert. denied, 537 U.S. 1146 (2003);
Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001) (per
curiam); Rosa v. United States, 170 F. Supp.2d 388, 397 (S.D.N.Y. 2001). This
principle is a corollary of the well-settled principle that a knowing and
voluntary waiver of the right to appeal is likewise enforceable. E.g.,
United States v. Monzon, 359 F.3d 110, 116 (2d Cir. 2004); United States
v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001) (per curiam); United
States v. Garcia, 166 F.3d 519, 521 (2d Cir. 1999) (per curiam); United
States v. Djelevic, 161 F.3d 104, 106-07 (2d Cir. 1998) (per curiam);
United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.). cert.
denied, 509 U.S. 931 (1993). Here, there is no reason to question that
Bradley's waiver was knowing and voluntary as the allocution made plain
that Bradley fully understood the agreement he was entering into. See
Plea Transcript at 6-16. A federal habeas court is entitled to rely on
such statements made during an allocution even in the face of a later,
contrary claim that the plea was not knowing or voluntary. See, e.g.,
Garcia-Santos, 273 F.3d at 508; Hernandez, 242 F.3d at 112-13 (citing
cases). In any event, Bradley does not even argue that his waiver was not
knowing or voluntary. Accordingly, the waiver must be given effect.
As has been made plain in cases construing waivers of the right to
appeal, a waiver of appellate review contained in a plea agreement bars
even a claim that the defendant received ineffective assistance of
counsel with respect to the sentence imposed. See, e.g., Dielevic, 161
F.3d at 107 ("If we were to allow a claim of ineffective assistance at
sentencing as a means of circumventing plain language in a waiver
agreement, the waiver of appeal provision would be rendered meaningless.
This we decline to do."). Nonetheless, there is an exception to the bar
imposed by a defendant's waiver of the right to bring a § 2255 petition:
such a waiver is not enforceable where there is "an attack on the
validity of the process by which the waiver has been procured, here, the
plea agreement." Frederick, 308 F.3d at 195-96 (citations omitted); cf Monzon, 359 F.3d at 118-19 (same with respect to waiver of right to
This exception is of no relevance to Bradley's case, however, as he
makes no claim that the decision to enter into the Plea Agreement, with
its waiver of the right to bring a collateral attack, was the result of
ineffective assistance of counsel. While Bradley states without
elaboration that "[i]f not for the conduct of petitioner's counsel, the
petitioner would have pled innocent," Petition at 9, he does not specify
any conduct which would support this statement. Construing his pro se
petition broadly, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per
curiam), perhaps Bradley wishes to argue that he was denied effective
assistance through counsel's failure to advise him that the statute under
which he was charged is unconstitutional. See generally Petition at 9,
11; Supp. Petition at 3-4. Such a claim, however, is meritless. See
United States v. Genao, 79 F.3d 1333, 1336-37 (2d Cir. 1996) (holding
that 21 U.S.C. § 846 does not violate the Commerce Clause). Thus counsel
could not possibly have been ineffective for failing to raise this issue
with Bradley prior to his plea. See Strickland v. Washington. 466 U.S. 668,
687 (1984) (requiring a showing that counsel's performance was
"deficient"); see also Aparacio v. Artuz, 269 F.3d 78, 99 n.10 (2d Cir.
2001) (where claim is meritless, counsel is not ineffective for failing
to raise it).
For the foregoing reasons, Bradley's motion to vacate, set aside, or
correct his sentence should be denied. PROCEDURE FOR FILING 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 have ten (10) days from service of this
Report and Recommendation to file any objections. See also Fed.R.Civ.P.
6(a), (e). Such objections (and any responses to objections) shall be
filed with the Clerk of the Court, with copies sent to the Hon. Harold
Baer, Jr., 500 Pearl Street, New York, New York 10007, and to the
undersigned at 40 Centre Street, New York, New York 10007. Any request
for an extension of time to file objections must be directed to Judge
Baer. If a party fails to file timely objections, that party will not be
permitted to raise any objections to this Report and Recommendation on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985).
© 1992-2004 VersusLaw Inc.