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BRADLEY v. U.S.

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

REPORT AND RECOMMENDATION
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.

I. BACKGROUND

  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 be filed.

 III. DISCUSSION

  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 omitted).

  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 appeal).

  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).

  Conclusion

  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).

20040528

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