United States District Court, S.D. New York
October 4, 2004.
TERRY AYENI, Petitioner,
The opinion of the court was delivered by: DENISE COTE, District Judge
MEMORANDUM OPINION AND ORDER
In a petition signed on July 23, 2004, received by the Pro
Se Office of this Court on July 29, and filed on August 16,
Terry Ayeni ("Ayeni") challenges his sentence on the grounds that
he should have received a downward departure at sentencing, and
that the Supreme Court's ruling in Blakely v. Washington,
124 S. Ct. 2531 (2004), invalidates his sentence. For the following
reasons, Ayeni's petition is denied.
On April 25, 2003, Ayeni pleaded guilty before this Court to
conspiracy to commit wire fraud. On July 25, he was sentenced to
forty-six months' imprisonment to be followed by three years on
supervised release. In a plea agreement, Ayeni agreed that a
downward departure in his case was unwarranted, and waived the
right to appeal or collaterally attack any sentence within or
below the range specified in the agreement. At his plea colloquy,
Ayeni indicated that he fully understood the meaning of this
waiver. Ayeni's sentence was within the range specified in the
agreement and he did not appeal his sentence. In his habeas petition, Ayeni argues that his sentence should
have included a downward departure for extraordinary family
circumstances. In addition, Ayeni cites the Supreme Court's
ruling in Blakely v. Washington, 124 S. Ct. 2531 (2004), which
held that a state trial court's sentencing of a defendant above
the statutory maximum of the standard range for the offense based
on the judge's own factual findings violated the defendant's
Sixth Amendment right to a jury trial. Id. at 2537. Ayeni
maintains that Blakely invalidates his sentence because this
Court enhanced his offense level pursuant to various sections of
the United States Sentencing Guidelines based on this Court's
1. Procedural Bar
A habeas petition brought pursuant to Section 2255 "is not a
substitute for an appeal," and a defendant who did not raise his
claims on appeal will be barred from raising them for the first
time in a habeas petition unless he "can demonstrate either (1)
cause for failing to raise the issue, and prejudice resulting
therefrom; or (2) actual innocence." Rosario v. United States,
164 F.3d 729, 732 (2d Cir. 1998) (citations omitted). Cause "must
be something external to the petitioner, something that cannot
fairly be attributed to him," such as administrative
interference. Coleman v. Thompson, 501 U.S. 722, 753 (1991)
(emphasis in original).
Ayeni has demonstrated neither cause for failing to raise his claims on appeal nor actual innocence. Consequently, his
habeas petition is procedurally barred.
2. Plea Agreement Waiver
Even without a procedural bar, Ayeni would be prevented from
filing a habeas petition due to his knowing and voluntary waiver
of his rights to appeal and to file habeas petitions as set out
in his plea agreement. Plea agreement waivers of rights are
enforceable when made knowingly and voluntarily.
"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 [the]
agreement with the government would "render the plea
bargaining process and the resulting agreement
United States v. Monzon, 359 F.3d 110
, 117 (2d Cir. 2004)
(quoting United States v. Salcido-Contreras, 990 F.2d 51
(2d Cir. 1993) (per curiam)). In deciding that a waiver of the
right to appeal was knowing and voluntary in the context of a
Section 2255 petition, courts have considered factors such as:
(1) whether the petitioner signed the plea agreement; (2) whether
the petitioner stated during the plea colloquy that he had read
and understood the plea agreement; (3) whether the petitioner
failed to take a direct appeal from the sentence; and (4) whether
the petitioner failed to assert in his Section 2255 petition that he
had not understood the waiver. See Garcia-Santos v. United
States, 273 F.3d 506
, 508 (2d Cir. 2001).
Ayeni, who was sentenced to forty-six months' imprisonment,
expressly promised in his plea agreement that he "will not file a
direct appeal, nor litigate under Title 28, United States Code,
Section 2255 . . ., any sentence within or below the stipulated
sentencing range of 37 to 46 months." This waiver was both
knowing and voluntary. Ayeni signed the plea agreement. During
the plea colloquy, Ayeni was asked by this Court: "[D]o you
understand that by signing this agreement, you have given up your
right to appeal your sentence or ever challenge or litigate your
sentence so long as I sentence you to nothing more than 46 months
in prison. Do you understand that?" Ayeni responded, "Yes." Ayeni
did not take a direct appeal from his sentence. Moreover, Ayeni
does not assert in the petition that he did not understand the
content or meaning of the waiver. Therefore, Ayeni's waiver of
his right to appeal his sentence directly or indirectly is
enforceable, and his Section 2255 petition is barred.
3. Family Circumstances Subsequent to Sentencing
To the extent that certain papers appended to Ayeni's petition
appear to describe family events occurring after Ayeni's
sentencing date, even if Ayeni were to argue that such events merit a modification in his sentence, he would nevertheless be
barred from making such a claim by his plea agreement waiver of
the right to appeal. "We have long enforced waivers of direct
appeal rights in plea agreements, even though the grounds for
appeal arose after the plea agreement was entered into. The
reasons for enforcing waivers of direct appeal in such cases lead
us to the same conclusion as to waivers of collateral attack
under § 2255." Id. at 509. Indeed, even if Ayeni had not agreed
to a waiver, a motion to modify his sentence would still be
unsuccessful. The grounds for a post-conviction reduction in
sentence are severely restricted and are set out in Rule 35,
Fed.R. Crim. P. This petition does not present any of the grounds
identified in that Rule.
4. Blakely Claim
Ayeni's Blakely claim must be dismissed additionally because
it is expressly foreclosed by Second Circuit precedent.
Unless and until the Supreme Court rules otherwise,
the law in this Circuit remains as stated in
Garcia, Thomas, and our other related case
law. . . . [W]e expect that, until the Supreme Court
rules otherwise, the courts of this Circuit will
continue fully to apply the Guidelines.
United States v. Mincey, 380 F.3d 102
, 106 (2d Cir. 2004).
Because Ayeni's sentence was below the statutory maximum for
conspiracy to commit wire fraud, the sentencing enhancements he
received are valid under prior case law, and are not affected by Blakely.
For the reasons stated above, Ayeni's Section 2255 petition is
dismissed. The Clerk of Court shall close the case. I further
decline 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. Tankleff v.
Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v.
Scully, 905 F.2d 24 (2d Cir. 1990). In addition, I find,
pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this
Order would not be taken in good faith. Coppedge v. United
States, 369 U.S. 438, 445 (1962).
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