United States District Court, S.D. New York
November 1, 2004.
JULIO ALEXIS, Petitioner,
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
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.
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.
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 Alexis made with the
government and should refrain from entertaining the instant
Ordinarily, there is no general bar to including a waiver of
collateral attack rights in a negotiated plea agreement. See
Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195 (2d Cir. 2002). Furthermore, waivers of this kind are
typically enforceable. See Garcia-Santos v. United States,
273 F.3d 506, 509 (2d Cir. 2001). However, the waiver of a right
to file a motion pursuant to 28 U.S.C. § 2255 is not enforceable
when the movant claims to have received ineffective assistance
from counsel with respect to the agreement that effected the
waiver. See United States v. Hernandez, 242 F.3d 110, 114 (2d
Cir. 2001) (citing Jones v. United States, 167 F.3d 1142, 1145
[7th Cir. 1999]).
In the case at bar, Alexis contends that his counsel "failed to
advise and educate" him of the contents of the agreement.
Therefore, in order to determine the enforceability of the waiver
of Alexis' right to attack his conviction and sentence
collaterally, the Court must review his claim of ineffective
assistance of counsel.*fn1
Ineffective Assistance of Counsel
The Supreme Court has explained that the right to counsel
guaranteed by the Sixth Amendment is the "right to effective
assistance of counsel." Strickland v. Washington, 466 U.S. 668,
686, 104 S. Ct. 2052, 2063 (1984) (quoting McMann v.
Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 1449 n. 14
). To determine whether counsel's assistance was effective,
the Supreme Court devised a two-part test. See Strickland,
466 U.S. at 687-696, 104 S. Ct. at 2064-2069. First, a criminal
defendant must show that counsel's performance was deficient;
that is, that it fell below an "objective standard of
reasonableness" measured under "prevailing professional norms."
Id. at 687-688, 2064-2065. Second, the criminal defendant must affirmatively demonstrate prejudice, by showing that "there
is a reasonable probability that, but for counsel's [error], the
result of the proceeding would have been different." Id. at
694, 2068. See also United States v. Javino, 960 F.2d 1137,
1145 (2d Cir.), cert. denied, 506 U.S. 979, 113 S. Ct. 477
(1992). A reasonable probability has been defined as "a
probability sufficient to undermine confidence in the outcome."
See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Considerable deference is accorded counsel's performance; counsel
is "strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment." Id. at 690, 2066.
Alexis' claim that his counsel did not explain, and that Alexis
did not understand, the terms and conditions of the plea
agreement is not credible, given the exchange of questions and
answers between your Honor and Alexis during the plea proceeding
held on October 31, 2000:
THE COURT: . . . I have been furnished with a letter
agreement, which we will mark as Court Exhibit 1 in
this proceeding. It takes a form of a letter from the
government to Mr. Hernandez [Alexis' attorney] dated
October 30, 2000 and appears to have been signed
today as well by you, Mr. Alexis. Is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: Now before signing the letter, was that
letter read to you in Spanish?
THE DEFENDANT: Yes, sir.
THE COURT: Did you discuss it with your counsel?
THE DEFENDANT: Yes, sir.
THE COURT: Did you understand the terms of the
THE DEFENDANT: Yes, sir.
THE COURT: When you signed it, did you do so in order
to indicate your agreement to the terms?
THE DEFENDANT: Yes, sir.
This colloquy between your Honor and Alexis, while he was under
an oath to give true answers to the questions put to him during
the plea proceeding, undermines any claim that Alexis' counsel
failed to explain the terms and conditions of his plea agreement
or that, as a result, Alexis did not understand those terms and conditions.
Moreover, nothing in the record before the Court supports the
petitioner's contention. Therefore, Alexis has not demonstrated
that his counsel's performance was deficient or that he was
prejudiced as a result of that performance. Consequently, the
Court finds no merit in Alexis' claim that his counsel rendered
ineffective assistance to him with respect to the plea agreement.
Under the circumstances, Alexis' waiver of his right to attack
his sentence collaterally is enforceable. Thus, the instant
application should not have been brought and need not be
entertained by the court.
Procedural Bar to Alexis' Claims
An application made pursuant to 28 U.S.C. § 2255 cannot serve
as a surrogate for a direct appeal. See United States v.
Frady, 456 U.S. 152, 165, 102 S. Ct. 1584, 1593 (1982).
Therefore, among other things, a movant such as Alexis may not
raise, by way of a § 2255 application, an issue which was not
raised on appeal unless he can demonstrate cause for the failure
to raise the issue and actual prejudice resulting from it. See
Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604,
1611 (1998); Murray v. Carrier, 477 U.S. 478, 485,
106 S. Ct. 2639, 2643-2644 (1986).
The respondent contends that Alexis' failure to file an appeal
bars him procedurally from raising the claims he has made in the
instant application, unless Alexis can show cause for his
procedural default and actual prejudice resulting from it.
The respondent is only partly correct. The Supreme Court has
held that a Sixth Amendment claim of ineffective assistance of
counsel that was not raised in a direct appeal from a judgment of
conviction may, nonetheless, be presented to the trial court in a
§ 2255 motion. See Massaro v. United States, 538 U.S. 500,
123 S. Ct. 1690 (2003). Therefore, if Alexis' waiver of his right to file an application pursuant to § 2255
were not enforceable, his ineffective assistance of counsel claim
could have been entertained by the court even though it was not
raised on direct appeal from the judgment of conviction.
However, the same is not true for the other issues Alexis
raises as grounds for the instant application. Since Alexis did
not file any appeal raising those issues, he must show cause for
his failure to do so. This he has not done. Since Alexis cannot
clear one of the hurdles that must be surmounted when a claim has
been procedurally defaulted, he would not be entitled to the
habeas corpus relief he seeks from the court.
Alexis' application, that his sentence be vacated, should be
denied because: 1) he waived his right to file such an
application; and 2) the application is procedurally barred with
respect to all claims other than the petitioner's claim that he
received ineffective assistance from his counsel, a claim that is
not supported by the record evidence.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this Report to file written objections. See
also Fed.R. Civ. P. 6. Such objections, and any responses to
objections, shall be filed with the Clerk of Court, with courtesy
copies delivered to the chambers of the Honorable Jed S. Rakoff,
500 Pearl Street, Room 1340, New York, New York, 10007, and to
the chambers of the undersigned, 40 Foley Square, Room 540, New
York, New York, 10007. Any requests for an extension of time for
filing objections must be directed to Judge Rakoff. FAILURE TO
FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF
OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v.
Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d
Cir. 1993); Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992);
Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988);
McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).