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CHUDRY v. U.S.

United States District Court, S.D. New York


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 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 agreement).

  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 Cir. 1992)).

  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 proceedings.

  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. [Page 525, ]

20050509

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