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ALEXIS v. BAILY

United States District Court, S.D. New York


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 Alexis made with the government and should refrain from entertaining the instant application.

  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 [1970]). 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 letter?
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.

  IV. RECOMMENDATION

  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).


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