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United States District Court, S.D. New York

October 4, 2004.

TERRY AYENI, Petitioner,
U.S., Respondent.

The opinion of the court was delivered by: DENISE COTE, District Judge


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 factual findings.


  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 meaningless."
United States v. Monzon, 359 F.3d 110, 117 (2d Cir. 2004) (quoting United States v. Salcido-Contreras, 990 F.2d 51, 53 (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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