United States District Court, S.D. New York
June 23, 2004.
EDWIN PUJOLS, Petitioner,
The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge
OPINION AND ORDER
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.
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
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
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).