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CHUDRY v. U.S.

May 9, 2005.

Raza Chudry, Petitioner,
v.
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.

I. BACKGROUND

  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.

  II. DISCUSSION

  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 ...


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