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United States District Court, S.D. New York

August 10, 2004.

U.S., Respondent.

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Jose Campusano, proceeding pro se, has moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Campusano argues for relief on the basis of ineffective assistance of counsel resulting from his former attorney's alleged failure to: (1) adequately argue that the firearm found in petitioner's apartment was not possessed in connection with his drug offense; (2) move for a downward departure; and (3) file a notice of appeal despite petitioner's request that he do so. For the following reasons, Campusano's motion is denied.


  A. Campusano's Criminal Conduct, Guilty Plea And Sentencing

  Campusano was charged with conspiring with others from September 2000 through October 2000 to violate the narcotics laws in violation of 21 U.S.C. § 846. The object of this conspiracy was to distribute, and possess with intent to distribute, more than 50 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A). If convicted of this crime, Campusano faced a mandatory minimum of ten years imprisonment.

  The petitioner was arrested at his apartment on May 16, 2001. See 4/18/02 Sentencing Hearing Transcript, Ex. D to the Government's Memorandum of Law in Opposition to Vacate Sentence Pursuant to 28 U.S.C. § 2255 ("Opp. Mem."), at 25. During the course of the arrest, the police recovered a 12-gauge shotgun, 12-gauge caliber ammunition, approximately 130 grams of cocaine, 2 electronic scales, a composition book with coded language, and miscellaneous paraphernalia used in the packaging and trafficking of narcotics. See id. at 25-26.

  Campusano pled guilty, pursuant to a Plea Agreement, to a one count Superseding Information charging that on September 27, 2000, Campusano distributed, and possessed with intent to distribute, 27 grams of crack cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). See Plea Agreement, Ex. A to the Opp. Mem., at 2. The charge carried a mandatory minimum of five years imprisonment. In the Plea Agreement, Campusano stipulated that "[b]ecause the petitioner possessed a firearm, to wit, a shotgun recovered in the petitioner's apartment at the time of his arrest, the offense level is increased by two levels, pursuant to U.S.S.G. § 2D1.1(b)(1)." Id. The parties further stipulated to an offense level of 31, a criminal history category of I, and a Guidelines range of imprisonment of 108 to 135 months. See id. at 2-3. In return for the benefits obtained through the Plea Agreement, namely, pleading to a charge that carried a mandatory minimum of five years imprisonment instead of the original charge which carried a mandatory minimum of ten years imprisonment, petitioner agreed that he would "neither appeal nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated Guidelines range" of 108 to 135 months. Id. at 4.

  At his plea allocution before Magistrate Judge Ronald L. Ellis on November 7, 2001, Campusano testified under oath that he had reviewed the Plea Agreement with his attorney, that he understood it, and that he signed it. See 11/7/01 Plea Transcript, Ex. B to the Opp. Mem., at 18-19. Campusano also testified that he was satisfied with his attorney, see id. at 9, and that he thought counsel was "doing a good job on [his] behalf." Id. at 3. Campusano testified that he understood that he had agreed not to appeal or otherwise litigate any sentence within or below the stipulated guideline range of 108 to 135 months. See id. at 26.

  This Court conducted sentencing proceedings on three separate days; March 26, April 18 and May 21, 2002. See Exs. C, D & E to the Opp. Mem. The principal issue at those proceedings was the propriety of applying the firearm enhancement found in U.S.S.G. § 2D1.1(b)(1).*fn1 This enhancement had been stipulated to in the Plea Agreement. Nonetheless, Campusano claimed that the shotgun found in his possession at the time of his arrest previously belonged to a violent neighbor and that he had taken the shotgun away in order to diffuse a potentially dangerous domestic dispute. See 3/26/02 Sentencing Hearing Transcript, Ex. C to the Opp. Mem., at 3.

  Notwithstanding petitioner's stipulation accepting the § 2D1.1(b)(1) enhancement, the Court invited petitioner to offer evidence concerning the manner in which he came into possession of the shotgun and therefore adjourned the hearing. See id. at 4, 7-8. On April 18, 2002, the second day of the sentencing proceeding, Campusano called three witnesses to explain the circumstances surrounding his possession of the shotgun. See 4/18/02 Sentencing Transcript, Ex. D to the Opp. Mem., at 6, 9-10, 13-14. These witnesses testified that a few weeks before Campusano's arrest, Campusano had taken the gun from a violent neighbor named Ricky who had used it to threaten his wife's life. See id. at 7, 11, 15.

  At the time of his arrest on May 16, 2001, however, petitioner had in his possession not only the shotgun, but also "all the tools of a narcotics business in the apartment." Id. at 25. Although the Court found the defense witnesses credible and concluded that Campusano "might have come into possession of this particular weapon in a peaceful and well-meaning way," the Court also found that "he didn't turn it into a local police station, and he didn't get rid of it. What he did with it, [was] keep it under his mattress in his bedroom, [and] keep ammunition available for it around the house." 5/21/02 Sentencing Transcript, Ex. E to the Opp. Mem., at 7-8. Because petitioner had a loaded weapon available for use in his home, in which he also had "all the tools of a narcotics business," he had failed to prove that it was "clearly improbable" that the gun was connected with the offense. See id. at 8. In the Court's view, Campusano felt safer with a weapon in his home. "He felt that he had some way to protect himself as a drug dealer, whether it was against other drug dealers or those who robbed drug dealers or customers who got angry, but it was a good idea to have protection in the house." Id. Under these circumstances, the enhancement was found to be appropriate.*fn2 See id.

  On May 21, 2002, the Court sentenced Campusano to 108 months imprisonment. See id. at 14. This sentence was at the bottom of the range set forth in the Plea Agreement. Campusano did not file a direct appeal although he claims that he instructed his attorney to do so.


  A. Section 2255 Standard

  Section 2255 allows a convicted person held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255. Accordingly, collateral relief under section 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.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). B. Waiver of Appellate/Collateral Attack Rights

  A defendant's waiver of his right to appeal and/or collaterally attack his sentence is generally enforceable as long as the record contains sufficient evidence to establish that the defendant knowingly and voluntarily waived these rights.


In no circumstance . . . may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement. Such a remedy would render the plea bargaining process and the resulting agreement meaningless.
United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993) (per curiam). See also United States v. Tang, 214 F.3d 365, 368 (2d Cir. 2000); United States v. Garcia, 166 F.3d 519, 521 (2d Cir. 1999); United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998). Many years ago, the Second Circuit recognized that:
[P]lea agreements can have extremely valuable benefits to both sides — most notably, the defendant gains reasonable certainty as to the extent of his liability and punishment, and the Government achieves a conviction without the expense and effort of proving the charges at trial beyond a reasonable doubt. . . . [T]he waiver [of appeal] provision is a very important part of the agreement — the Government's motivating purpose, decreased effort and expense of protracted litigation, is not well-met if the defendant is permitted to appeal that to which he has agreed. United States v. Rosa, 123 F.3d 94, 97 (2d Cir. 1997).

  A. Petitioner's Counsel Adequately Argued Against the Firearm Enhancement

  Campusano argues that his counsel was ineffective for failing to adequately argue that it was "clearly improbable" that the shotgun found in his apartment at the time of his arrest was connected with the drug offense to which he pled guilty.*fn4 This argument fails because defense counsel effectively argued this point. Not only did defense counsel call three witnesses to prove that petitioner obtained the shotgun in an innocent manner, but he vigorously argued that the temporal disconnect between the date of petitioner's arrest (May 16, 2001) and the date of the offense charged in the Superseding Information (September 27, 2000) proved that the shotgun was not used in petitioner's drug business. See 4/18/02 Tr. at 22, 25. However, the Government responded that petitioner's drug business remained active as of May 16, 2001, as evidenced by the items seized at the time of petitioner's arrest. The Government further argued that petitioner's ongoing drug operation should be considered relevant conduct. The Government thereby effectively negated defense counsel's position that there was a disconnect between the presence of the shotgun and petitioner's drug business.

  Our legal system is an adversarial system which, by definition, results in a winner and a loser. The fact that an attorney lost a particular argument cannot be used as a barometer of overall poor performance. Nor does such loss necessarily indicate ineffective assistance of counsel with regard to the contested issue. Although the Government ultimately prevailed on the appropriateness of the firearm enhancement, defense counsel presented his arguments coherently and zealously. Petitioner has thus failed to show that his attorney's conduct fell below an objective standard of reasonableness.

  Nor has petitioner shown prejudice. Given the items found at petitioner's apartment at the time of his arrest, the fact that his drug business was ongoing is essentially indisputable. And given that the shotgun was loaded and kept under petitioner's bed, the inescapable conclusion is that it was used, albeit indirectly, in petitioner's drug business. B. Counsel's Decision to Forego a Downward Departure Motion Does Not Represent Ineffective Assistance

  Petitioner claims that his counsel was ineffective for failing to move for a downward departure at sentencing. However, counsel was barred from doing so by the Plea Agreement, which states:

The parties agree that neither a downward nor an upward departure from the stipulated Guidelines range set forth above is warranted. Accordingly, neither party will seek such a departure or seek any adjustment not set forth herein. Nor will either party suggest that the Probation Department consider such a departure or adjustment, or suggest that the Court sua sponte consider such a departure or adjustment.
Plea Agreement at 3. Even if there were no Plea Agreement, the grounds petitioner now puts forward for such a departure — that he is a family man with no criminal record and a trusted and caring neighbor — do not take his case outside of the heartland of drug distribution cases covered by the Guidelines. See U.S.S.G. § 5K2.0. Accordingly, petitioner's counsel cannot be ineffective for having failed to do what he was barred from doing in the first place and, even if not barred, would have proved futile.

  C. Petitioner Waived His Right to File a Direct Appeal

  Petitioner's claim that he was denied the right to appeal his sentence is foreclosed by his Plea Agreement. As part of his Plea Agreement, petitioner explicitly agreed that he "will neither appeal, nor otherwise litigate under Title 28, United State Code, Section 2255, any sentence within or below the stipulated Guidelines range set forth above (108 to 135 months). . . ." Plea Agreement at 4.*fn5 When a defendant has knowingly and voluntarily waived his right to challenge a sentence within a stipulated range, generally he may not challenge a sentence imposed within that range. See, e.g., Garcia-Santos v. United States, 273 F.3d 506, 508 (2d Cir. 2001); United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000); United States v. Maher, 108 F.3d 1513, 1531 (2d Cir. 1997). For the waiver provision to have its intended force, it must bar ineffective assistance of counsel claims based upon post-plea events. See Djelevic, 161 F.3d at 107 ("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.").

  Although waivers of the right to appeal a sentence within an agreed-upon Sentencing Guidelines range as set forth in a plea agreement are generally enforceable, see supra Part II.B., such waivers are not absolute in scope. Where a defendant is seeking to challenge his sentence on appeal, the Second Circuit has recognized "very circumscribed" exceptions to the general rule recognizing the enforceability of waivers of appeal. See Gomez-Perez, 215 F.3d 315 at 319. These exceptions include:

when the waiver was not made knowingly, voluntarily and competently, when the sentence was imposed based on constitutionally impermissible factors, such as ethnic, racial or other prohibited biases, when the government breached the plea agreement, or when the sentencing court failed to enunciate any rationale for the defendant's sentence, thus amounting to an abdication of judicial responsibility subject to mandamus.
Id. (internal quotation marks and citations omitted).

  Petitioner does not claim ineffective assistance of counsel with respect to his plea negotiations or resulting Plea Agreement. Even if he had, the knowing and voluntary nature of the waiver can be established by demonstrating that during the plea allocution, the defendant's attention was drawn to the waiver provision. See United States v. Blackwell, 199 F.3d 623, 625 (2d Cir. 1999) (per curiam). Here, the record leaves no doubt that Campusano knowingly and voluntarily waived his right to appeal the sentence he received. See 11/7/01 Tr. at 18-19. Nor has petitioner raised any of the other exceptions that would permit him to appeal his sentence. Thus, any appeal on petitioner's part would have been frivolous. Counsel should not be deemed ineffective for failing to bring a meritless appeal. See Puello v. United States, No. 03 Civ. 3757, 2004 WL 42282, at *3 (S.D.N.Y. Jan. 7, 2004) (rejecting petitioner's ineffective assistance claim for failing to file a notice of appeal where any appeal would have been frivolous given petitioner's waiver of appellate rights). But see Helassage v. United States, No. 00 Civ. 5717, 2002 WL 31202714, at *1 (S.D.N.Y. Oct. 2, 2002) ("But failure by an attorney to file a requested appeal is per se ineffective assistance of counsel, and attorneys who believe their client's appeal would be frivolous are nevertheless required to file a brief in compliance with Anders v. State, 386 U.S. 738 (1967), even in situations where a plea agreement waives any appeal as to sentence.")*fn6 (citations omitted).

  Alternatively, because Campusano was sentenced at the bottom end of the stipulated Guidelines range and he knowingly and voluntarily waived his right to appeal, he is precluded from bringing an ineffective assistance of counsel claim based on counsel's failure to file a notice of appeal. See Alcantara v. United States, No. 02 Civ. 5991, 2003 WL 102873, at *2 (S.D.N.Y. Jan. 10, 2003) (refusing to apply Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), where petitioner waived his right to appeal); Cuevas v. United States, No. 01 Civ. 6672, 2002 WL 372918, at *3 (S.D.N.Y. Mar. 8, 2002) ("As long as a defendant has agreed to a sentence within the stipulated guideline range, and the defendant is sentenced within that range, the defendant has obtained the benefit of his bargain."); Rosa v. United States, 170 F. Supp. 2d 388, 408 (S.D.N.Y. 2001) ("[H]is 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, No. 00 Civ. 1191, 2000 WL 1373134, at *1 (N.D.N.Y. Sept. 19, 2000) ("Petitioner cannot claim to have been denied the very right he knowingly and voluntarily waived.").

  The Supreme Court has held that it is per se ineffective for counsel to fail to file a notice of appeal after being instructed by his client to do so. See Flores-Ortega, 528 U.S. at 477. In such instances, prejudice is presumed and the defendant is entitled to an appeal without any further showing as to the merits of his underlying claims. See id. at 484. On the other hand, where a defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, the two-prong test in Strickland v. Washington, 466 U.S. 668 (1984), requiring a showing of deficient performance and prejudice, applies. See id. at 477-78.

  However, Flores-Ortega does not address whether the per se rule applies where a defendant has explicitly waived his right to appeal. See id. at 489 n. 1 ("[T]here is no claim here that Flores-Ortega waived his right to appeal as part of his plea agreement[.]") (Souter, J., concurring). It appears that the Second Circuit has not yet addressed this issue in a published opinion. See Reyes v. United States, No. 99-2157, 2004 WL 693412, at *2 (2d Cir. Apr. 2, 2004) (summary order) (remanding case for a hearing on whether petitioner instructed his trial counsel to file a notice of appeal given the Government's concession "that even though [petitioner] waived his right to a direct appeal through a plea agreement, his counsel would have been per se ineffective if he had ignored a request from [petitioner] to file a notice of appeal").

  Unless and until the Second Circuit says otherwise, I conclude that the per se rule is inapplicable to the situation at hand Even assuming the truth of petitioner's affidavit, petitioner merely asked counsel to appeal his sentence. This is barred by the waiver contained in the Plea Agreement. There is no evidence that the request to appeal was based on any of the permitted grounds for appeal. Unless a defendant asks his attorney to file an appeal that raises one of the permitted grounds for appeal despite the plea waiver, the per se rule cannot apply. To hold otherwise would be tantamount to requiring an appeal in every case, despite the appeal waiver, lest counsel be considered ineffective.


  For the reasons stated above, Campusano's motion is denied. Finally, there is the question of whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citation omitted)). Because reasonable jurists could differ on the issue of whether counsel's conduct was per se ineffective in failing to file a notice of appeal when his client requested that he appeal the sentence, where the Plea Agreement explicitly bars such an appeal except on extremely circumscribed grounds, none of which were asserted by petitioner. I hereby grant a certificate of appealability as to that issue only. The Clerk of the Court is directed to close this case.


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