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United States District Court, S.D. New York

May 10, 2005.

MAXIMO GENAO, Petitioner,

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Maximo Genao, proceeding pro se, has moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Genao seeks to withdraw his guilty plea on the ground that he received ineffective assistance of counsel. For the following reasons, petitioner's motion is dismissed.

  I. FACTS*fn1

  A. Genao's Arrest and Guilty Plea

  Genao was arrested on June 1, 1992, by special agents of the Drug Enforcement Administration ("DEA"). He was later indicted, along with twenty-six co-defendants, and charged with conspiring to distribute large quantities of heroin, powder cocaine, and crack cocaine. Following his indictment, Genao began cooperating with the Government. He attended numerous proffer sessions with representatives of the DEA and the United States Attorney's Office, and provided incriminating information regarding many of his co-conspirators. As a result of the information provided during these proffer sessions, Genao was offered a Cooperation Agreement with the Government, under which he agreed to provide information and testimony in return for a Section 5K1.1 motion by the Government, which would permit the sentencing judge to sentence Genao below both the Guidelines range and the required statutory minimum term of imprisonment.

  On October 2, 1992, Genao pled guilty pursuant to the terms of the Cooperation Agreement to a one-count Superseding Information charging him with unlawfully distributing in excess of one and one-half kilograms of crack cocaine. See Transcript of Plea Allocution, Ex. B to the 4/2/04 Letter from AUSA Nicholas S. Goldin ("Goldin Letter"). In his Cooperation Agreement, Genao acknowledged that he was an "organizer and leader of criminal activity involving five or more participants, in connection with [the charged] crack distribution." See Cooperation Agreement, Ex. A to Goldin Letter. Genao initially remained in custody following his guilty plea. B. Genao's Cooperation and Subsequent Flight

  In early February 1993, Genao testified as a Government witness at the trial of two of his co-conspirators. One of these defendants pled guilty in the midst of trial, while the other defendant was convicted after trial. Genao was thereafter released on bail for the purpose of assisting DEA agents in identifying and apprehending additional co-conspirators. After being released on bail, however, Genao failed to offer any meaningful assistance to the Government. Instead, he jumped bail and absconded to his native country, the Dominican Republic.*fn2 On July 16, 1993, Judge John S. Martin issued a bench warrant for Genao's arrest. More than six years later, Genao was found in the Dominican Republic and arrested. He was extradited to the United States, and arrived in Florida on February 5, 2000. Genao then was transferred to the Southern District of New York.

  C. Genao's Sentencing

  The United States Probation Department ("Probation") prepared a Presentence Investigation Report ("PSR") in connection with Genao's sentencing. Probation set Genao's base offense level at thirty-eight pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1, based on a drug quantity of more than one and one-half kilograms of crack cocaine, i.e., the amount stipulated to in the Cooperation Agreement. Probation also recommended a four-level organizer or leader enhancement, pursuant to U.S.S.G. § 3B1.1(a). Because Genao had jumped bail and become a fugitive from justice, Probation further recommended that Genao receive a two-level enhancement for obstruction of justice, see U.S.S.G. § 3C1.1, application note 4(e). Accordingly, the PSR calculated Genao's total offense level at forty-four which, given Genao's Criminal History Category of I, yielded a Guidelines range of life imprisonment. However, Probation suggested that the Court downwardly depart by three levels, pursuant to U.S.S.G. § 5K2.0, based on Genao's acceptance of responsibility. Probation recommended that Genao be sentenced at the low end of the resulting sentencing range of 324 to 405 months.

  Prior to his sentencing, Genao moved to compel the Government to file a U.S.S.G. § 5K1.1 motion, claiming that the Cooperation Agreement obligated the Government to do so despite Genao's flight. Genao also submitted a Sentencing Memorandum, in which he requested that the court downwardly depart on at least six separate grounds. At his sentencing, which was held on August 3, 2001, the court denied the motion to compel the Government to file a Section 5K1.1 motion, stating that "[t]his is a clear case in which the defendant breached his agreement with the government, [and] forfeited any right he had [under the agreement] by becoming a fugitive." See Transcript of Sentencing Hearing, Ex. C to the Goldin Letter at 6. Judge Martin then considered each of the downward departure motions raised by Genao before concluding that under the facts of this case, no departure was appropriate. See id. at 22. Judge Martin awarded Genao a three-point reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. See id. at 25. This three-point reduction reduced Genao's offense level to 41, with a resulting sentencing range of 324 to 405 months. See id. at 27. The Court then sentenced Genao to a term of 324 months imprisonment. See id. at 28. The Court also imposed a five-year period of supervised release, and the mandatory $100 special assessment. See id. Defendant appealed this sentence on August 20, 2001. The Second Circuit affirmed the conviction and sentence in a summary order. See United States v. Genao, No. 01-1451, 2002 WL 1583906 (2d Cir. July 18, 2002) (unpublished).

  D. Petitioner's Allegations of Ineffectiveness

  In his motion, petitioner included an "Affidavit of Facts" wherein he stated that he instructed his attorney, Edward Sapone, to withdraw his guilty plea in response to the Government's decision to nullify the Cooperation Agreement because of petitioner's bail jumping. According to petitioner,

[c]ounsel came back and informed me that he had secured a new deal with the government. That I should continue to provide the government with more information and that the government will move for downward departure below my 10 year? mandatory minimum. That if I withdrew my plea, I am facing a mandatory sentence of life and counsel will no longer represent Petitioner. That Petitioner [will] have to represent himself.
Petitioner's Affidavit of Facts ¶ 6.


  A. Section 2255 Standard

  Section 2255 allows a convicted person being held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255. Accordingly, collateral relief under section 2255 is available only if the court, in sentencing petitioner, "violated the Constitution or the laws of the United States, improperly exercised jurisdiction, or sentenced him or her beyond the maximum time authorized by law." Thai v. United States, 391 F.3d 491, 493 (2d Cir. 2004).

  B. Ineffective Assistance of Counsel

  The Sixth Amendment guarantees a fair trial and competent counsel in all criminal prosecutions. See U.S. Const. amend. VI. The Sixth Amendment "`stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not still be done.'" Gideon v. Wainwright, 372 U.S. 335, 343 (1963) (quoting Johnson v. Zerbst, 304 U.S. 458, 462 (1938)). To prove that counsel was constitutionally ineffective, a petitioner must satisfy the two-part test established in Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner must first show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms." Id. at 688. The second prong requires a petitioner to "affirmatively prove prejudice," i.e., to demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

  The Supreme Court has held "that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58 (1985). To establish an ineffective assistance claim within the context of a guilty plea, a petitioner must show that his counsel's constitutionally ineffective performance affected the outcome of the plea process such that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59. See also United States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) ("A defendant who pleads guilty unconditionally while represented by counsel may not assert independent claims relating to events occurring prior to the entry of the guilty plea. `He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within [acceptable] standards.'" (quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973) (alteration in original)). "Failure to make a meritless argument does not amount to ineffective assistance." United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999).


  Genao principally argues that his former attorney provided ineffective assistance of counsel by rejecting his request to withdraw his guilty plea and proceed to trial, after he learned that the Government would not be making a motion under Section 5K1.1. Instead, petitioner's former attorney allegedly coerced him into providing the Government with additional information about other crimes in the hope of resurrecting his Section 5K1.1 agreement. As a result of counsel's ineffective representation, Genao claims that his counsel's failure to withdraw his guilty plea substantially prejudiced him. However, in the Affirmation he submitted at the request of the Court, petitioner's former counsel, Edward V. Sapone, effectively refutes these allegations.

  With regard to petitioner's purported new deal with the Government, Sapone stated that he


also attempted to persuade the Government to allow Mr. Genao to provide additional information with the hope of receiving the benefit of a more substantial 5K1.1 letter. The Government considered new information provided by Mr. Genao through my numerous attorney's proffers. The Government, however, determined that the information was not useful and declined to enter an agreement with Mr. Genao or offer him any benefit for it.
Affirmation of Edward V. Sapone, petitioner's former counsel, dated April 11, 2005, ¶ 12. Sapone's version is more credible than petitioner's version given that there was no written Cooperation Agreement memorializing the purported new deal Sapone reached with the Government. Furthermore, a defense attorney cannot compel the Government to enter into a Cooperation Agreement or make a U.S.S.G. § 5K1.1 motion. See United States v. Brown, 321 F.3d 347, 354 (2d Cir. 2003) ("The decision whether to file a section 5K1.1 motion for a defendant's substantial assistance lies within the discretion of the government."); United States v. Rexach, 896 F.2d 710, 713 (2d Cir. 1990) (noting that the "question of substantial assistance is self-evidently a question that the prosecution is uniquely fit to resolve") (internal quotation marks and citation omitted). Sapone also effectively refuted petitioner's claim that he threatened to withdraw as counsel if plaintiff withdrew his plea.


At no time did I ever — as Mr. Genao claims — threaten to withdraw from Mr. Genao's case. Nor did I attempt to force, threaten, or in any way persuade Mr. Genao to select one way of proceeding with his defense over another. At all times, I explained to Mr. Genao all available options, and let him decide how we should proceed. I never guaranteed a result.
Id. ¶ 18 (emphasis added). Because Sapone's Affirmation effectively discredits and repudiates petitioner's allegations of ineffective assistance of counsel, I hereby dismiss the instant petition without the need for an evidentiary hearing. See Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001) ("At the request of the court, the record was supplemented by a detailed affidavit from trial counsel credibly describing the circumstances concerning appellant's failure to testify. We believe that with that submission the record was sufficient to support dismissal of the petition."). IV. CONCLUSION

  For the foregoing reasons, the motion to vacate, set aside, or correct Genao's sentence is denied. Because petitioner has failed to make "a substantial showing of the denial of a constitutional right," this Court will not issue a certificate of appealability. 28 U.S.C. § 2253(c)(2); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Clerk of the Court is directed to close this case.


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