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United States District Court, S.D. New York

June 17, 2004.

PAUL VERNON, Petitioner,
U.S., Respondent.

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Paul Vernon ("Vernon"), proceeding pro se, has petitioned the Court pursuant to 28 U.S.C. § 2255, asserting a claim of constitutionally ineffective counsel. For the reasons set forth below, the petition is denied.

Prior Proceedings

  On October 9, 2002, Vernon pleaded guilty before Magistrate Judge Andrew J. Peck to Counts One and Two of Indictment 02 Cr. 558 (RWS), which charged that Vernon had possessed a firearm and ammunition after having previously been convicted of a felony, in violation of 18 U.S.C. § 922(g). According to the Plea Agreement entered into by Vernon and the government on October 4, 2002 (the "Plea Agreement"), the charges arose out of Vernon's possession of a handgun and ammunition on or about March 12, 2002.

  In the Plea Agreement, the parties stipulated that because Vernon had used and possessed the firearm and ammunition in connection with an attempted murder, the applicable base offense level was 22 pursuant to United States Sentencing Guidelines "U.S.S.G.") § 2A2.1. The parties further stipulated that Vernon's adjusted offense level was 19, which included a three-level reduction for acceptance of responsibility under U.S.S.G. §§ 1E1.1(a) and (b). The Plea Agreement also specified that Vernon's Criminal History Category was I, and therefore that his stipulated Guidelines range was 30 to 37 months. The Plea Agreement also provides that Vernon would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated Guidelines Range" of 30 to 37 months.

  Vernon was represented by counsel Benjamin Heinrich, Esq. ("Heinrich") at the plea hearing before Magistrate Judge Peck. During the hearing, Judge Peck reviewed all of the rights that Vernon would be waiving as a result of his guilty plea. Judge Peck also reviewed the Plea Agreement with Vernon. In particular, Judge Peck drew Vernon's attention to the fact that he agreed in the Plea Agreement not to appeal or litigate under 28 U.S.C. § 2255 any sentence within or below the stipulated range of 30 to 37 months.

  On or about October 16, 2002, this Court reviewed the transcript of Vernon's plea allocution and accepted the plea after determining that there was a factual basis for the plea and that the plea was entered knowingly and voluntarily.

  Following Vernon's guilty plea and in anticipation of his sentencing, the Probation Office issued a Presentence Investigation Report (the "PSR"). In the PSR, the Probation Office concurred in the Guidelines calculation contained in the Plea Agreement. In particular, the Probation Office determined that Vernon's adjusted offense level was 19, that his criminal history category was I, and that his Guidelines sentencing range was therefore 30 to 37 months. The PSR noted that because Vernon has used or possessed a firearm in connection with the commission of an attempted murder, the Sentencing Guidelines section applicable to attempted murder would be utilized to calculate the base offense level pursuant to U.S.S.G. § 2K2.1(c)(1). Accordingly, pursuant to U.S.S.G. § 2A2.1(a), Vernon's base offense level was determined to be 22, as the parties had stipulated in the Plea Agreement.

  On April 18, 2003, this Court issued a sentencing opinion following the Guidelines calculations of both the Plea Agreement and the PSR, and finding Vernon's adjusted offense level to be 19. See United States v. Vernon, 02 Cr. 558, 2003 WL 1907863, at *2 S.D.N.Y. Apr. 18, 2003). On April 29, 2003, this Court sentenced Vernon principally to a term of 34 months' imprisonment. Vernon was advised of his right to appeal and to be represented free of charge on that appeal if he could not afford a lawyer. Vernon indicated that he understood his appeal rights. Vernon did not appeal his conviction or his sentence.

  On October 6, 2003, Vernon filed the instant petition. The government responded to the petition by letter on March 2, 2004, at which it was deemed fully submitted. Discussion

  Vernon argues that he received ineffective assistance of counsel because: 1) his lawyer failed to challenge inaccurate information in the PSR which led to a misapplication of the Sentencing Guidelines; and 2) despite Vernon's request and direction to his lawyer to file an appeal, no appeal was filed. The government argues that Vernon's petition should be dismissed because Vernon waived his right to challenge his sentence and because his claim of ineffective assistance of counsel is meritless.

  "Waivers of the right to appeal a sentence, like waivers of constitutional rights, are invalid unless they are voluntary and knowing." United States v. Monzon, 359 F.3d 110, 116 (2d Cir. 2004) (quoting United States v. Ready, 82 F.3d 551, 556 (2d Cir. 1996)). While Monzon concerned the right to appeal, the rationale remains the same for the waiver of a right to collaterally attack a sentence, as there is no "principled means of distinguishing [a Section 2255] waiver from the waiver of a right to appeal." Rosa v. United States, 170 F. Supp.2d 3788, 397 (S.D.N.Y. 2004) (quoting United States v. Wilkes, 20 F.3d 651, 652 (5th Cir. 1994)). Therefore,

a defendant's promise in a plea agreement to forgo the right to appeal a sentence is not enforceable unless "the record `clearly demonstrates' that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary."
Monzon, 359 F.3d at 116 (quoting Ready, 82 F.3d at 557). However, if the record does clearly demonstrate that the waiver of the right to appeal a sentence within a stipulated Guidelines Range was made knowingly and voluntarily, that waiver is enforceable.


In no circumstance . . . may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal . . . then appeal the merits of a sentence conforming to the agreement, "for to permit such a defendant to escape the fairly bargained-for consequences of her agreement with the government would "render the plea bargaining process and the resulting agreement meaningless."
Id. at 117 (quoting United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993) (per curiam)).

  Vernon has not argued that he did not knowingly and voluntarily waive his right to appeal. Further, the transcript of Vernon's plea allocution clearly shows that his waiver of his right to appeal or to collaterally attack his sentence was made voluntarily and knowingly. Instead, Vernon makes the same argument as the defendant in United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998), who "claim[ed] that his waiver should not bar consideration of his appeal because counsel was ineffective not at the time if the plea, but at sentencing." The Second Circuit "emphatically reject[ed] this contention," further holding that the defendant in reality is challenging the correctness of his sentence under the Sentencing Guidelines, and is therefore barred by the plain language of the waiver contained in his plea agreement with the government. . . . If we were to allow a claim of ineffective assistance of counsel 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.

 Id. The Plea Agreement accordingly bars Vernon's right to file a § 2255 petition on the stated grounds.

  Even if Vernon were not barred from collaterally attacking his sentence by the Plea Agreement, his claims of ineffective assistance of counsel would still fail. Vernon argues that his adjusted offense level should be 17 rather than 19 as a result of inaccurate information regarding the date of one of his past convictions and that his lawyer should have pointed out this error to the Court. Vernon's offense level, however, was determined using the attempted murder Guideline, U.S.S.G. § 2A2.1, which resulted in a base offense level of 22, which was reduced by three levels as a result of his acceptance of responsibility, pursuant to U.S.S.G. §§ 3E1.1. Vernon's previous convictions were therefore irrelevant to the calculation of his adjusted offense level.

  Vernon's argument that he received ineffective assistance because his counsel failed to appeal is also without merit. Although Vernon's counsel has submitted a sworn affidavit stating that at no time did Vernon request that an appeal be filed, the resolution of that factual issue is unnecessary. Considering Vernon's guilty plea, his sentence within the stipulated Guidelines range, and "the plea agreement expressly waiv[ing] right to appeal the imposed sentence, [Vernon] cannot show that counsel's failure to file a notice of appeal was objectively unreasonable." Lopez v. United States, 01-CV-7398, 2002 WL 1471540, at *3 (E.D.N.Y. May 15, 2002) (citing Jolaoso v. United States, 143 F. Supp.2d 306, 308 (S.D.N.Y. 2001); Rosa v. United States, 170 F. Supp.2d 388, 408 (S.D.N.Y. 2001) (finding that "attorney was not ineffective in failing to file a notice of appeal because no appeal could be pursued under the Plea Agreement"); Castro v. United States, 00-CV-1191, 2000 WL 1373134, at * 1 (N.D.N.Y. Sept. 19, 2000) (holding that, although attorney failed to file notice of appeal when so directed by client, petitioner had no right to appeal because that right had been waived.)).


  For the reasons set forth above, each of the grounds on which Vernon bases his § 2255 petition are rejected. The petition is accordingly denied.

  As Vernon has not made a substantial showing of the denial of a constitutional right, a certificate of appealability all not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y.S. Div. of Parole, 209 F.3d 107, 111-113 (2d Cir. 2000). Pursuant to 28 U.S.C. § 1915(a)(3), the Court also certifies that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).

  It is so ordered.


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