United States District Court, S.D. New York
June 17, 2004.
PAUL VERNON, Petitioner,
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.
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
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
"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)
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
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
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
For the reasons set forth above, each of the grounds on which
Vernon bases his § 2255 petition are rejected. The petition is
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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