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United States District Court, S.D. New York

June 23, 2004.

EDWIN PUJOLS, Petitioner,
U.S., Respondent.

The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge


Edwin Pujols, proceeding pro se, seeks a writ of habeas corpus pursuant to section 2255 of Title 28 of the United States Code, to vacate his July 25, 2001 conviction. In his petition, Pujols asserts that his guilty plea was not knowingly and voluntarily made due to ineffective assistance of counsel. For the reasons set forth below, Pujols's motion is DENIED.


  A. Pujols's Offense Conduct

  On or about August 17, 1999, a federal grand jury sitting in the Southern District of New York returned a three-count indictment against Pujols and several others. Pujols was only charged in Count One, which accused him of participating in a conspiracy to distribute and possess with the intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846. The prosecution arose out of the transportation of 170 kilograms of cocaine by truck from New Orleans to the New York City area. Pujols, along with his co-conspirators, arranged for the transportation of the drugs and then sold some of the cocaine once the drugs arrived in the New York City area.

  B. Plea Proceeding

  On October 13, 2000, Pujols pled guilty to Count One of the indictment, conspiring to sell more than five kilograms of cocaine in violation of 21 U.S.C. § 846. During the plea hearing held before Magistrate Judge Kevin Nathaniel Fox, Pujols withdrew his prior plea of not guilty as to Count One and entered a plea of guilty as to that count. At that time, Magistrate Judge Fox informed Pujols of the nature of the charge to which Pujols was offering to plead guilty and of the possible penalties associated with this offense.

  Magistrate Judge Fox advised Pujols, among other things, that he had the right to plead not guilty and that if he did so, he would have a right to trial by jury in which he was represented by counsel and where he would have the opportunity to confront and cross-examine witnesses on his own behalf. Transcript of Plea held on October 13, 2000, at 10-11. Magistrate Judge Fox sought and received assurances from Pujols that he understood and appreciated the nature and content of the indictment and that he was entering his guilty plea knowingly and voluntarily. Magistrate Judge Fox confirmed that Pujols wished to plead guilty because he was, in fact, guilty of the charged offense, and that Pujols understood by doing so he was subjecting himself to a possible maximum sentence of life imprisonment. Id. at 9.

  C. Sentencing Proceeding

  Pujols's sentencing hearing was held before this Court on July 25, 2001. The Court adopted the United States Probation Department's sentencing guideline calculation and the drug amount on which it was based. It established that Pujols's base offense level was thirty-eight pursuant to U.S.S.G. § 2D1.1(c)(2), that a two-level reduction was warranted because Pujols satisfied the "safety-valve" provision set forth in U.S.S.G. § 5C1.2, and that an additional three-level reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility was warranted.

  At the hearing, Pujols acknowledged that he had reviewed the Pre-Sentence Investigation Report and spoken with his attorney about it. Transcript of Sentencing held on July 25, 2001, at 2. The Court also heard argument from the parties with respect to Pujols's motion for a downward departure based on his allegedly substantial assistance to the Government and his extraordinary family circumstances, and Pujols's motion for a two-level reduction on the basis that he was a minor participant pursuant to U.S.S.G. § 3B1.2(b). The Court then provided Pujols with an opportunity to speak on his own behalf. Among other things, Pujols stated that: "I want to present my apologies and tell you that I am very sorry for the crime that I committed, very sincerely. I want to tell you that it was a big mistake on my part to have committed this crime, but I want to assure you that it was really a mistake that I committed in letting myself be dragged by the epidemic which is so damaging for the world at large today, looking for easy money, led by their ambition, because criminality is not in my head and it's not part of my blood. That is why, your Honor, in making your decision, I would like to ask you for clemency. . . ." Id. at 10-11.

  Following Pujols's statement, the Court recognized that it had the authority to depart downward on the basis of substantial assistance to the Government and on the basis of extraordinary family circumstances. The Court determined, however, that a downward departure was not warranted. The Court also concluded that Pujols did not show that he was less culpable than the average conspiracy participant and thus was not entitled to a role reduction based on his argument that he was a minor participant in the conspiracy. Id. at 11. The Court then ordered Pujols to serve a sentence of 135 months, followed by a five-year term of supervised release, and to pay a mandatory $100 special assessment. The Court informed Pujols of his right to appeal and Pujols did appeal his sentence. On December 17, 2001, the United States Court of Appeals for the Second Circuit dismissed Pujols's appeal of conviction in an unpublished order. See United States v. Pujols, No. 01-1238(L), 01-1410(CON) (2d Cir. Dec. 17, 2001).

  On March 4, 2003, Pujols filed the instant action, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence on the ground that he received ineffective assistance of counsel.


  A. Knowing and Voluntary Guilty Plea

  A guilty plea "shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences." Kercheval v. United States, 274 U.S. 220, 223 (1927); see also United States v. Journet, 544 F.2d 633 (2d Cir. 1976).

  Pujols argues his guilty plea entered pursuant to incompetent advice of counsel is involuntary and therefore invalid. The Court finds that this assertion is without merit. Magistrate Judge Fox conducted a thorough plea allocution, during which Pujols — with the assistance of an interpreter — indicated that he understood his rights, had discussed the charges contained in the indictment and sentencing guidelines with his attorney, and was pleading guilty of his own free will. Transcript of Plea held on October 13, 2000, at 8-13. Specifically, Pujols responded "No" to Magistrate Judge Fox's questions of (1) "Have any threats been made to you by anyone to influence you to plead?"; and (2) "Have any promises been made to you of any nature to induce you to plead guilty?" Id. at 13. Pujols responded "Yes" to Magistrate Judge Fox's question of "Sir, is your plea voluntary, that is, made of your own free will?" Id.

  B. Ineffective Assistance of Counsel

  To prevail on a claim of ineffective assistance of counsel, the petitioner must show (1) "that counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms" and (2) that there is a reasonable probability that but for counsel's unprofessional performance, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 693-94 (1984). With respect to the first prong of Strickland, there is a strong presumption that counsel's conduct falls within the "wide range of reasonable professional assistance." Clark v. Stinson, 214 F.3d 315, 321 (2d Cir. 2000) (quotation omitted). Although this presumption can be overcome, the burden of proving that counsel's performance was unreasonable lies with the petitioner. See Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).

  1. Failure to Address Deportation Consequences

  Pujols contends that counsel's failure to address the deportation consequences of a guilty plea rendered his assistance ineffective.*fn1 Petitioner asserts in his motion, lacking any sworn declaration, that at a point during the plea negotiations, his counsel "told him not to worry about it" and the prosecutor "told him not to worry about it as well." Petitioner's Memorandum ("Pet. Memo") at 6. At the plea allocution, Pujols made specific admissions as to his guilt. An interpreter was provided. Throughout the plea, no mention was made of any possible deportation. Even were the Court to consider Pujols's claim, controlling law does not provide that failure to advise about the immigration consequences of a guilty plea is tantamount to ineffective assistance of counsel. See, e.g., United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002) (attorney's failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness") (citations omitted); United States v. Parrino, 212 F.2d 919, 921 (2d Cir. 1954) (attorney's failure to warn alien of deportation consequences of guilty plea not basis to reverse federal conviction); Alexis v. Smith, No. 03 Civ. 391, 2003 WL 22434154, at *5 (S.D.N.Y. Oct. 24, 2003) ("[m]ere failure to broach the subject of deportation does not constitute ineffective assistance."); Castillo Acevedo v. Immigration and Naturalization Service, No. 02 Civ. 9623, 2003 WL 22416122, at *5 (S.D.N.Y. Oct. 22, 2003) ("though it may well be the case that had petitioner been armed with knowledge of the repercussions of his plea, he might have pursued another course or at least sought an agreement for a recommendation from the authorities against deportation, petitioner's prejudice does not suffice to overturn his conviction").*fn2

  As discussed above, Pujols has not shown that he was affirmatively misled by his counsel and the prosecutor as to the immigration consequences of his guilty plea, and no prejudice has been shown. Pujols has therefore failed to establish an ineffective assistance of counsel claim based upon his claim that he did not knowingly and voluntarily enter his guilty plea.

  2. Failure to Provide Translations

  Petitioner also asserts that counsel's failure to provide him with written Spanish translations of the indictment, plea agreement, pre-sentence report, objections to the pre-sentence report, sentencing transcript and other documents in the case constitutes ineffective assistance. He argues that "[h]is misgivings allowed the Government to obtain a conviction . . . while denying him due process and equal protection of the law." Pet. Memo at 5. While such may be true under certain circumstances, the facts of this case dictate a different result.

  The record reveals that Pujols requested at the time of his plea that Magistrate Judge Fox direct the clerk to read Count One of the indictment aloud, and the clerk obliged. Transcript of Plea held on October 13, 2000, at 5-7. A Spanish interpreter was provided by the government to translate the proceeding into Spanish for Pujols. Petitioner's argument that counsel was ineffective because the written plea agreement was not read to him in English or Spanish is without merit since Pujols entered his plea without a plea agreement.

  Pujols next argues that the record reveals the absence of an interpreter at his sentencing, attaching as an exhibit to his petition the cover page of the sentencing hearing transcript. Pet. Memo at 3. The record directly contradicts petitioner's assertion. A Spanish interpreter was provided by the government to translate the proceeding into Spanish for Pujols. The Court notes that the Criminal Memorandum to Docket Clerk dated July 25, 2001, attached to the indictment in the file maintained by the Clerk of the Court, records that an interpreter indeed was present at petitioner's sentencing hearing. There can be no doubt, therefore, that Pujols understood the proceedings and could have aided his counsel in preparing his defense.*fn3

  3. Failure to Submit Motions

  Pujols also claims that his counsel was ineffective because of failure to submit any motions to the Court prior to petitioner's guilty plea. This claim is also without merit. There is no evidence that avenues suggested by the client which might have altered the outcome were ignored. Counsel, both in writing and orally, argued vigorously and effectively on behalf of Pujols. The Court's decision not to grant either of the two motions Pujols advanced prior to sentencing does not render such performance constitutionally deficient.


  For the reasons set forth above, Pujols's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence is denied. The Court further declines to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. See 28 U.S.C. § 2853; Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). Should the petitioner seek to appeal in forma pauperis, the Court certifies, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal of this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).


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