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ALEXIS v. BAILY

November 1, 2004.

JULIO ALEXIS, Petitioner,
v.
NANCY BAILY, WARDEN, Respondent.



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

TO THE HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  Julio Alexis ("Alexis") has made an application, pursuant to 28 U.S.C. § 2255, that his sentence be vacated because, inter alia: (a) he received an illegally enhanced sentence; (b) his indictment was defective because it did not allege sufficiently the elements of the offense for which he was convicted; (c) his plea of guilty was entered in reliance on a "promise" by his attorney that the government had agreed upon a prison term shorter than that to which he was actually sentenced; (d) he received ineffective assistance from his counsel, because his attorney did not seek a reduction in sentence to which Alexis believes he was entitled and because his attorney failed to explain the terms and conditions of the plea agreement into which Alexis entered with the government.

  The respondent opposes Alexis' application. She contends that: 1) Alexis waived his right, through his plea agreement, to make the instant application to the court; and 2) Alexis is procedurally barred from asserting claims, in the instant motion, that he did not pursue through a direct appeal from the judgment of conviction.

  II. BACKGROUND

  Alexis was charged in indictment No. 00 Crim. 579 with conspiring with others to possess with intent to distribute 50 grams and more of cocaine base, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A)(iii) and 846. Alexis and his counsel entered into negotiations with representatives from the government which resulted in a written plea agreement ("agreement"). Alexis, his counsel and representatives from the government signed that agreement.

  In the agreement, the parties stipulated that, based upon calculations they made premised on applicable provisions of the United States Sentencing Guidelines, upon his tender of a plea of guilty, Alexis would be exposed to a period of incarceration within the range of 87 to 108 months. However, the parties agreed further that 21 U.S.C. § 841(b)(1)(A) required that Alexis be sentenced to a minimum term of 120 months in prison. The parties also agreed that Alexis would neither appeal from nor attack collaterally, pursuant to 28 U.S.C. § 2255, any sentence imposed by the court that was at or below a term of 120 months in prison. The parties agreed further, that Alexis might seek to qualify for relief from the statutory minimum term of incarceration.

  Alexis appeared before your Honor on October 31, 2000, to tender a plea of guilty to the one-count indictment. Before doing so, Alexis took an oath through which he swore to give true answers to the questions put to him during that plea proceeding. Your Honor quizzed Alexis on a multiplicity of matters at the proceeding, among them: his understanding of the charge made against him, the rights he would give up by pleading guilty and the voluntariness of his tender of a plea of guilty. Alexis was also questioned about the plea agreement that he, his attorney and representatives from the government had entered. Alexis assured your Honor that he had had an opportunity to discuss the agreement with his attorney and that he understood the terms and conditions of that agreement. Alexis also acknowledged that, under the terms and conditions of the plea agreement, he could not appeal any sentence equal to or less than 120 months in prison. Alexis also told your Honor that he was aware that his plea agreement was not binding upon the court.

  Alexis appeared before the court for sentencing on February 15, 2001. He was sentenced to 120 months in prison. Your Honor reminded Alexis of his agreement with the government not to challenge any prison sentence of 120 months. However, your Honor advised Alexis that there might be "some very unlikely, unusual circumstances" under which Alexis might have grounds upon which to appeal. Alexis and his counsel were then instructed to confer and, if they determined that circumstances existed which would permit Alexis to mount an appeal, to file a notice of appeal within ten days. Alexis told your Honor that he understood.

  Thereafter, Alexis filed the instant application.

  III. DISCUSSION

  Waiver of the Right to File a Collateral Attack

  The respondent contends that under the terms and conditions of the plea agreement into which Alexis entered, he waived his right to appeal from or to make a collateral attack upon any sentence imposed upon him that was at or below the statutory minimum term of 120 months in prison. Therefore, according to the respondent, the court should enforce the agreement that ...


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