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 ...