United States District Court, S.D. New York
May 9, 2005.
Raza Chudry, Petitioner,
United States of America, Respondent.
The opinion of the court was delivered by: RICHARD CASEY, District Judge
MEMORANDUM & ORDER
Pro se Petitioner Raza Chudry ("Petitioner" or "Chudry") brings
this motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. For the reasons explained below
Petitioner's motion is denied.
On February 8, 2001, a grand jury in the Southern District of
New York charged Petitioner in a three-count indictment. Count
One charged Petitioner and others with conspiring to commit
health care fraud in violation of 18 U.S.C. § 371; Count Two
charged Petitioner with health care fraud in violation of
18 U.S.C. § 1347; and Count Three charged Petitioner with making
false statements relating to health care fraud in violation of
18 U.S.C. § 1035. See Indictment, S1 00 Cr. 152, at Marrah Ex. A.
Pursuant to a plea agreement, Petitioner pleaded guilty to
Count Two before Magistrate Judge James C. Francis, IV on
February 21, 2001. See Plea Agreement, at Marrah Ex. B; Plea
Transcript, at Marrah Ex. C. The plea agreement, which Petitioner
read and signed, contained a provision in which Petitioner waived
his right to appeal directly or challenge under 28 U.S.C. § 2255
any sentence within the stipulated guideline range. See Plea
Agreement at 4; see also Plea Transcript at 9 (acknowledging
waiver). The stipulated guideline range was 51 to 63 months.
See Plea Agreement at 3. At the plea hearing, Petitioner also
confirmed that he had discussed the sentencing guidelines with
his then-counsel David Schmidt, Esq., that he was satisfied with
his attorney, and that he understood the nature of the charges to
which he was pleading and the range of penalties that could apply
to him. See Plea Transcript at 7. This Court accepted
Petitioner's guilty plea on March 15, 2001.
Thereafter, Petitioner obtained new counsel, K. Jayaraman,
Esq., and moved to withdraw his guilty plea on the grounds that
it was (1) involuntary because it was the product of coercion and
misstatements made to him by Schmidt and (2) improperly taken by
a United States Magistrate Judge. After hearing oral argument,
this Court found Petitioner not credible and denied his motion on October 16, 2001. See October 16, 2001
Transcript at 32, at Marrah Decl. D.
On January 16, 2002, this Court sentenced Petitioner to 55
months imprisonment, three years of supervised release,
restitution in the amount of $836,910.51, and a special
assessment of $100. See Sentence Transcript at 14, Marrah Decl.
Ex. E. At the sentencing hearing Petitioner once again
acknowledged that he entered into the plea agreement after
consultation with counsel and understood that he had waived his
right to appeal any sentence within the stipulated guideline
range. Id. at 17.
Plaintiff appealed, arguing that this Court (1) erred in
finding that Magistrate Judge Francis properly took his plea
without a formal assignment from this Court; (2) abused its
discretion in denying his motion to withdraw his plea and his
request for an evidentiary hearing; and (3) erred in denying his
claims of ineffective assistance of counsel. The United States
Court of Appeals for the Second Circuit denied Petitioner's
appeal, finding that Magistrate Judge Francis properly took
Petitioner's guilty plea and this Court properly denied his
motion to withdraw it. United States v. Chaudhry,
52 Fed. Appx. 540, 541-42 (2d Cir. 2002). With respect to Petitioner's
ineffective assistance of counsel claim, the Second Circuit
noted, "There is no evidence that counsel made any serious errors
that fell below professional norms. . . . Considering the
client's credibility and regard for the truth in our courts,
trial counsel was probably wise to negotiate this plea
agreement." Id. at 542.
Petitioner now submits that he received ineffective assistance
of counsel at the plea and sentencing hearings and that his plea
proceeding violated his due process rights.
A. Waiver of § 2255 Relief
Petitioner waived his right to appeal or collaterally attack
any sentence within the stipulated guideline range. See Plea
Agreement at 4. "A defendant's waiver of the right to appeal a
sentence within an agreed upon Guidelines range is generally
enforceable." United States v. Garcia, 166 F.3d 519, 521 (2d
Cir. 1999); see also United States v. Djelevic, 161 F.3d 104,
106 (2d Cir. 1998) (holding waivers of collateral attacks under §
2255 are similarly enforceable). "When the government negotiates
a plea agreement with a defendant that includes waiver of the
right to appeal, one benefit the government is supposed to
receive . . . is freedom from having to address post-conviction
arguments." Latham v. United States, 164 F. Supp. 2d 365, 367
(S.D.N.Y. 2001). It "would render the plea bargaining process and
the resulting agreement meaningless" if a defendant could appeal
a sentence that conforms with the plea agreement. United States
v. Salcido-Contreras, 990 F.2d 51, 51-52 (2d Cir. 1993).
The Second Circuit has noted, however, that "a defendant's
claim of `ineffective assistance of counsel in entering the plea
agreement' might `cast doubt on the validity of the his waiver'
of the right to appeal.'" Agyekum v. United States, No. 01 Civ.
5808 (RWS), 2002 WL 1000950, at *4 (S.D.N.Y. May 16, 2002)
(citing United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998) (per curiam)). Thus, several courts have held "that
a § 2255 petitioner should not be deemed to have waived the right
to collaterally attack his sentence if the ground for the attack
is ineffective assistance of counsel" at the plea proceeding.
Id. (citing cases). Petitioner is therefore not barred from
bringing this § 2255 petition based on his claim of ineffective
assistance of counsel in connection with the plea negotiations.
To the extent Petitioner has any right to appeal his sentence
based on ineffective assistance of counsel in post-plea
proceedings or alleged violations of due process, as will be
explained below, those claims are meritless. See Cole v.
United States, No. 04 Civ. 2716 (RPP), 2005 WL 217019, at *4
(S.D.N.Y. Jan., 27, 2005) (considering merits of petitioner's §
2255 petition even though petition violated clear terms of plea
B. Chudry Did Not Receive Ineffective Assistance of Counsel
To demonstrate that his guilty plea was involuntary or
unknowing due to ineffective assistance of counsel, Petitioner
must show that (1) "counsel's representation fell below an
objective standard of reasonableness," and (2) "there is a
reasonable probability that, but for counsel's unprofessional
errors,' he would not have pleaded guilty and would have insisted
on going to trial." Agyekum v. United States, 2002 WL 1000950,
at *5 (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985) and
Strickland v. Washington, 466 U.S. 668, 687 (1984)). "[E]ven if
a defendant makes out facially plausible allegations of
ineffectiveness, a district court has the discretion to rely on a
defendant's sworn statements in open court and to hold defendant
to them." Id. (citing Blackledge v. Allison, 431 U.S. 63, 74
(1977); United States v. Torres, 129 F.3d 710, 716-17 (2d Cir.
1997); United States v. Gonzales, 970 F.2d 1095, 1099-1101 (2d
1. Plea Proceeding
Petitioner claims that his plea counsel failed to inform him of
the impact of two sentencing enhancements to his plea agreement,
one for obstruction of justice and the other for the aggregate
amount of loss involved. The two enhancements are clearly set
forth in the plea agreement. Plea Agreement at 2. When he offered
his guilty plea, Chudry affirmed that he understood the nature of
the charge to which he was pleading, the range of penalties
available, including the maximum sentence, and that he had
discussed the sentencing guidelines and their application to his
case with his counsel. Plea Transcript at 7. He also conceded,
under oath, that he had read the plea agreement, understood its
terms, and signed it. Id. at 9; see also id. at 4 (swearing
in Chudry). He also stated that he was satisfied with his
attorney. Id. at 5. Further, Petitioner specifically referred
to the aggregate amount of loss in his allocution, saying, "I
assisted submission of false claims . . . in the amount of
approximately $650,000. . . . During that same time, I submitted
a bill for over a million dollars for amino acid testing that I
knew was fraudulent." Id. at 10. Finally, when Petitioner
attempted to withdraw his guilty plea he did not dispute the
factual basis for these enhancements. See Oct. 16, 2001
Transcript at 33.
Where a defendant states in open court and under oath
that he understands the terms of the plea agreement
and is pleading guilty pursuant to that agreement
knowingly and voluntarily, and not based on any
undisclosed promises, a district court may properly
rely on those statements, despite subsequent disavowals of
voluntariness, where the defendant fails to
corroborate in any way his post-plea allegations.
Agyekum v. United States, 2002 WL 1000950, at *6.
Given the "`strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance'" and
Petitioner's statement that his plea counsel had reviewed the
plea agreement and sentencing guidelines with him, including the
enhancements he now finds objectionable, the Court finds
Petitioner did not receive ineffective assistance of counsel at
the plea proceeding. United States v. Aguirre, 912 F.2d 555,
560 (2d Cir. 1990) (quoting Strickland, 486 U.S. at 689)).
2. Post-Plea Proceedings
Petitioner also claims that his sentencing and appellate
counsel failed to object to these same enhancements. Petitioner
cannot succeed on this claim. As explained above, the
enhancements were included in the plea agreement and Petitioner's
allocution established the basis for both of them. Petitioner
cannot demonstrate that he was prejudiced by counsel's decision
to not object to the enhancements at his sentencing or later
C. Rule 11 Was Not Violated
Petitioner argues Magistrate Judge Francis violated his right
to due process by failing to explain the nature of the charges
against him in conformity with Federal Rule of Criminal Procedure
11(b)(1)(G). Petitioner previously raised this argument on his
motion to withdraw his plea and this Court found that he "was
advised adequately of his rights by Magistrate Judge Francis
during his plea allocution and defendant clearly stated that he
understood that he was foregoing these rights by pleading
guilty." October 16, 2001 Transcript at 30. The Court reaches the
same conclusion here.
Rule 11 requires that "[b]efore the court accepts a plea of
guilty . . . the court must inform the defendant of, and
determine that the defendant understands . . . the nature of each
charge to which the defendant is pleading." Fed.R.Crim.P.
11(b)(1)(G). At the plea hearing, Magistrate Judge Francis asked
the Assistant U.S. Attorney to set forth the elements the
government would have to prove at trial to convict Petitioner of
the charge to which he was pleading guilty. Plea Transcript at 9.
In response, the Assistant explained that the government would
have to show "that there was a scheme to defraud, in this case a
scheme to defraud the Medicare program; that the defendant
knowingly and willfully participated in some way in the scheme;
and that the scheme was in connection with claims for
reimbursement from a health care program such as Medicare." Id.
at 9-10. Magistrate Judge Francis then asked Petitioner if he
understood that, if he were to go to trial, the government would
have to prove these elements beyond a reasonable doubt. Id. at
10. Petitioner responded, "Yes, I do." Id. at 10. Accordingly,
Magistrate Judge Francis complied with Rule 11. III. CONCLUSION
For the foregoing reasons, Petitioner's motion to vacate his
sentence based on ineffective assistance of counsel and violation
of his right to due process is denied. Petitioner has not made a
showing of a "substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). Accordingly, the
Court does not issue a certificate of appealability. The Clerk of
the Court is directed to close the case.
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