United States District Court, S.D. New York
July 13, 2005.
HELEN WARREN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
OPINION AND ORDER
Before the Court is Petitioner Helen Warren's pro se
application to vacate, set aside, or correct her sentence
pursuant to 28 U.S.C. § 2255 and to reconsider her sentence
pursuant to Federal Rules of Criminal Procedure 32 and 35. For
the reasons stated herein, the motions are denied.
A. Indictment and Plea
Helen Warren ("Warren") and five co-conspirators were charged
in a two-count superseding indictment filed on February 7, 2002.
Warren was charged in Count One with conspiracy to distribute in
excess of one kilogram of heroin and five kilograms of cocaine,
in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b) (1) (A) and
846.*fn1 On July 1, 2002, Warren pleaded guilty before
Magistrate Judge Gorenstein, pursuant to a written plea
agreement. At this time, Warren was represented by her
court-appointed attorney, Aubrey Lees, Esq.
In the Plea Agreement, the parties stipulated that: (i)
Warren's base offense level was 36 pursuant to § 2D1.1(c)(2) of
the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") because the offense involved the distribution of at
least ten but less than thirty kilograms of heroin; (ii) Warren
was eligible for relief from a statutory 10 year minimum sentence
and a two-level reduction pursuant to the "safety-valve,"
18 U.S.C. § 3553(f); U.S.S.G. §§ 2D1.1(b)(6)*fn2 and 5C1.2;
(iii) Warren received a two level reduction pursuant to U.S.S.G §
3E1.1(a) for acceptance of responsibility and a one level
reduction pursuant to § 3E1.1(b) for entering her plea in a
timely manner. Warren's resulting stipulated offense level was
31. The parties further stipulated that Warren had a Criminal
History Category of I. The resulting Guidelines range was 108 to
135 months' imprisonment.
The Plea Agreement also contained a waiver of Warren's right to appeal or
collaterally attack the sentence, provided that the sentence fell in the
stipulated Guidelines range. The agreement provided:
Neither a downward nor an upward departure is
warranted from the stipulated Sentencing Guidelines
range of 108 to 135 months. Neither party will seek a
departure from nor seek any adjustment to the range.
Neither party will suggest that the Probation
Department consider such a departure or adjustment,
or suggest that the Court sua sponte consider
such a departure or adjustment.
. . . .
The defendant will neither appeal, nor otherwise
collaterally attack her sentence provided that the Court imposes a sentence within the stipulated to
(Warren Br. at 5).
During the plea proceeding, Magistrate Judge Gorenstein
confirmed that Warren could speak, understand, and write English,
that she had never been hospitalized for narcotics addiction,
alcoholism, or mental illness, and that she was not presently
under the influence of any drug. (Plea Tr. at 2-3).*fn3
Warren also confirmed that she had discussed her case with her
attorney, Ms. Lees, and that she was satisfied with Ms. Lees's
representation. (Id. at 4). Warren stated that she understood
the penalties that she faced and the rights she would have had at
trial. (Id. at 5-7). She also confirmed that she understood
that she was giving up these rights by entering a guilty plea.
(Id. at 7).
The Magistrate then addressed the Plea Agreement. Warren
allocuted that she had not been induced to plead guilty by any
promises as to her sentence. (Id. at 8). She expressed her
understanding that Judge Schwartz would not be bound by the
stipulated range when imposing sentence, and that she would be
bound by her guilty plea no matter what sentence Judge Schwartz
ultimately imposed. (Id. at 8-9). Magistrate Judge Gorenstein
then specifically addressed Warren's understanding of the waiver
under the Plea Agreement: THE COURT: Now, do you understand that under the
terms of this plea agreement, if the judge sentences
you to a prison term that is no longer than the
maximum of this range, that is, no longer than 135
months, you are giving up your right to challenge
that through an appeal or through an attack on your
conviction or any other way.
Do you understand that, Miss?
THE DEFENDANT: Yes.
(Id. at 9-10).
After the Government recited the elements it would have had to
prove for conviction, Warren admitted the charged conduct. (Id.
at 11-13). She admitted to participating with others in the
transportation of more than one kilogram of heroin and more than
five kilograms of cocaine. (Id. at 12). This conduct subjected
Warren to a potential sentence of lifetime imprisonment and a
statutory minimum of 10 years. See 21 U.S.C. § 841(b)(1)(A)(i),
(ii). Magistrate Judge Gorenstein concluded that Warren
understood the nature of the charge and the consequences of her
plea and that the plea was voluntary and supported by a factual
basis. (Id. at 13-14). The Magistrate recommended that the
District Court accept Warren's plea of guilty. (Id. at 14).
The Probation Office prepared a Presentence Report ("PSR") that
described Warren's role as a courier responsible for the
distribution of between 10 and 30 kilograms of heroin. Consistent
with the Plea Agreement, the PSR calculated Warren's offense
level at 31, Criminal History Category I, and recommended a sentence of 108 months in prison, to be followed by five years
of supervised release, and a special assessment of $100.
Judge Schwartz sentenced Warren on October 1, 2002. At
sentencing, Ms. Lees spoke of Warren's background and requested
that Warren be sentenced to the minimum Guidelines sentence, 108
months. (Sent. Tr. at 4-7).*fn4 Judge Schwartz set Warren's
base offense level at 36 because she distributed or participated
in a conspiracy to distribute between 10 and 30 kilograms of
heroin. Judge Schwartz then granted a two level "safety valve"
reduction pursuant to § 5C1.2 and a three level reduction for
acceptance of responsibility, resulting in a net offense level of
31. (Id. at 9). Judge Schwartz noted that Warren did not object
to the calculation of the applicable Guideline range in the PSR.
(Id.). Judge Schwartz also described Warren's role as courier
in the conspiracy and stated that, although Warren was
responsible for the distribution of 70 kilograms of cocaine and
15 kilograms of heroin, the sentence was predicated on the
distribution of between 10 and 30 kilograms of heroin. (Id. at 10).
Judge Schwartz then went into detail about Warren's "tragic"
life story. (Id. at 9-10). He also stated his view that the guidelines were excessive as applied in this case. (Id. at
11). Nevertheless, Judge Schwartz noted that the Guidelines bound
him and that he would "certainly accept the recommendation made
by Ms. Lees that Ms. Warren be sentenced to the bottom of the
guidelines, the lowest sentence I could give her. . . . the
sentence set forth in the presentence report." (Id. at 11). The
Judge then imposed a sentence of 108 months, followed by five
years of supervised release and a $100 special assessment. He
stated that this sentence was "imposed in recognition of the
seriousness of the crime, to deter the defendant and others, and
to protect the public." (Id. at 12). Judge Schwartz then
indicated his understanding that Warren "would have no right to
appeal because the sentence is within the guideline imprisonment
sentence range." (Id.).*fn5
C. Warren's Withdrawn Appeal and her § 2255 Motion
On October 17, 2002, Warren filed a notice of appeal. On
December 6, 2002, Ms. Lees moved to be relieved as Warren's
attorney and for the appointment of new counsel. On December 11,
2002, the Court of Appeals granted the motion. The Court
thereafter appointed Donna Newman, Esq. as Warren's counsel
pursuant to the Criminal Justice Act. On April 28, 2003, Ms. Newman filed Warren's appellate brief. On October 15, 2003,
Warren filed a motion to withdraw her appeal, which the Court of
Appeals granted on October 21, 2003.
On April 29, 2004, Warren moved this Court for relief under
28 U.S.C. § 2255. In support of her § 2255 motion, Warren submits
what appears to be the brief originally prepared for her
withdrawn appeal. She asserts that her sentence was unlawful and
that enforcement of her waiver of appeal and collateral attack
rights would result in a "miscarriage of justice." (Warren Br.
11-12). Warren specifically alleges that Judge Schwartz (i) erred
by "rely[ing] exclusively on the stipulations contained in the
Plea Agreement" to determine the quantity of drugs; (ii)
calculated the relevant drug quantity without a jury finding
beyond reasonable doubt; (iii) failed to consider whether she
merited a departure as a minor participant in the conspiracy; and
(iv) misapprehended or ignored his authority to depart downward
from the Guideline sentence range. Warren also contends that her
counsel, Ms. Lees, was ineffective for failing to object to these
errors at the sentencing hearing. (Warren Br. 13-22).
Warren also submits a reply letter in which she asserts that
her sentence is illegal under United States v. Booker,
125 S. Ct. 738 (2005), decided over two years after Judge Schwartz
sentenced her. Apparently realizing that Booker claims may not
be raised on collateral attack against convictions that were final as of the date Booker was issued, see United States v.
Guzman, 404 F.3d 139, 141 (2d Cir. 2005), Warren contends that
her Booker claim should not be barred from § 2255 review
because she would have raised the claim on direct appeal, and
ineffective assistance of counsel led her to withdraw that
appeal. (Warren Reply Letter at 2-3).
The Government opposes the motion on two grounds. The
Government contends that Warren's § 2255 petition raises the same
arguments as her withdrawn appeal. By withdrawing the appeal,
Warren waived these arguments. (Ltr. from AUSA Asner to Court
(Mar. 16, 2005)). Alternatively, the Government argues that the
petition fails on the merits because her waiver of appellate
rights was enforceable, the sentencing court correctly determined
her offense level and her counsel was not ineffective. (Id.,
Exh. A at 47-84).
D. Warren's Motion for Reconsideration
On May 3, 2004, Warren filed a second motion. This motion seeks
reconsideration of her sentence pursuant to Fed.R.Crim.P. 32,
35 or any other applicable Federal Rule. She seeks retroactive
application of Amendment 640 to the Sentencing Guidelines, which
modifies U.S.S.G. § 2D1.1(a)(3) by providing that defendants who
receive mitigating role adjustments in drug trafficking cases be
limited to a base level offense of 30. This amendment became
effective on November 1, 2002. The Government opposes this motion on untimeliness and retroactivity grounds.
The Government also argues that § 2D1.1(a)(3) is inapplicable to
Warren because it applies only to defendants who receive an
adjustment for a mitigating role pursuant to § 3B1.2.
Warren brings her motions pro se. The Court reads pro
se submissions more broadly and judges them more leniently than
submissions from attorneys. See Haines v. Kerner,
404 U.S. 519, 520 (1972). Nevertheless, Warren's motions must be denied.
A. The 28 U.S.C. § 2255 Petition
A defendant seeking collateral review under Section 2255 must
establish a "constitutional error, a lack of jurisdiction in the
sentencing court, or an error of law or fact that constitutes a
fundamental defect which inherently results in a complete
miscarriage of justice." Graziano v. United States,
83 F.3d 587, 589-90 (2d Cir. 1996) (internal quotation marks and
citations omitted); see 28 U.S.C. § 2255. Prior to reaching the
merits of Warren's claims, the Court must consider the
Government's argument that her failure to bring these claims on
direct appeal constitutes a procedural default. "[F]ailure to
raise a claim on direct appeal is itself a default of normal
appellate procedure, which a defendant can overcome only by
showing cause and prejudice." Campino v. United States,
968 F.2d 187, 190 (2d Cir. 1992). The "cause and prejudice" test requires that the defendant
"show? cause for failing to raise his claim at the appropriate
time and prejudice from the alleged error." Id. at 189. Cause
must be "something external to the [defendant], something that
cannot be fairly attributed to him." Coleman v. Thompson,
501 U.S. 722, 753 (1991). The prejudice prong requires the defendant
to show that the errors not only "created a possibility of prejudice, but
that they worked to his actual and substantial disadvantage." United States
v. Frady, 456 U.S. 152, 170 (1982).
Warren raises claims here that were available to her on direct appeal. In
fact, she appears to have submitted the brief from her withdrawn appeal as
the supporting papers for her Section 2255 motion. Unless Warren can
establish cause for this default, and actual prejudice resulting therefrom,
the Court must dismiss the petition. Her argument is that "ineffective
counseling" was the cause of the default. (Warren Reply Ltr. at 2).
Essentially, she contends that Ms. Newman improperly counseled her to
withdraw her pending appeal.
The Court rejects this argument. In order to establish an
ineffective assistance of counsel argument under the Sixth
Amendment, the defendant must establish 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, the result of the
proceeding would have been different." Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). In determining
whether the representation fell below the objective standard, the
Court "must judge the reasonableness of counsel's challenged
conduct on the facts of the particular case, viewed as of the
time of counsel's conduct." Id. at 690.
Warren cannot meet the first prong of the Strickland test.
Counsel's advice to withdraw the appeal was eminently reasonable
given the waiver in Warren's plea agreement and the law of this
circuit. "In general, a defendant's knowing and voluntary waiver
of his right to appeal a sentence within an agreed guideline
range is enforceable." United States v. Rosa, 123 F.3d 94, 97
(2d Cir. 1997). The record clearly establishes that Warren
understood the implications of her guilty plea and the waiver.
(See Plea Tr. at 7, 9-10). An appeal would not have succeeded
under these circumstances, and Warren's counsel was not
ineffective in advising that it be withdrawn. Warren suggests
that the waiver is unenforceable because of "numerous sentencing
errors" resulting in an "abdication of judicial responsibility,"
(Warren Br. at 11-12). The Court finds no error in the
sentencing. In any event, waivers will be upheld "where the
sentence was conceivably imposed in an illegal fashion or in
violation of the Guidelines, but yet was still within the range contemplated in the plea agreement." United States v.
Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000). Because Warren
cannot show that Ms. Newman's performance fell below an objective
standard of reasonableness, per Strickland, she has no cause to
excuse her failure to raise her claims on appeal.
Accordingly, Warren's Section 2255 claims are procedurally
barred, save one. Warren makes a separate ineffectiveness
argument that challenges the performance of her attorney at the
sentencing hearing. In Massaro v. United States, 538 U.S. 500
(2003), the Supreme Court held that all ineffective assistance of
counsel claims may be raised in a Section 2255 petition,
regardless of whether these claims had been raised on direct
appeal. Id. at 504. Unlike her other claims, Warren's
ineffective assistance claim is not procedurally barred.
The obstacle here is the waiver. In her plea agreement, Warren
waived the right to bring a Section 2255 petition as long as
Judge Schwartz sentenced her within the stipulated Guidelines
range. This he did. As stated on page 12, supra, knowing and
voluntary appeal waivers are generally enforceable. Similarly,
"[t]here is no general bar to a waiver of collateral attack
rights in a plea agreement." Frederick v. Warden, Lewisburg
Corr. Fac., 308 F.3d 192, 195 (2d Cir. 2002). The inquiry does
not end there, however. "[A] waiver of appellate or collateral
attack rights does not foreclose an attack on the validity of the process by which the waiver has
been procured, here, the plea agreement." Frederick,
308 F.3d at 195. In other words, the Court may only consider Warren's
ineffective assistance of counsel claim if the ineffectiveness
tainted the plea proceeding or the waiver itself.
Instead, Warren focuses her ineffective assistance of counsel
argument on Ms. Lees' performance at the sentencing hearing. The
Court of Appeals rejected the same argument in United States v.
Djelevic, 161 F.3d 104 (2d Cir. 1998). In that case, the
defendant waived his right to appeal a sentence within a
stipulated Guidelines range. The district judge sentenced him
within the range, but he challenged his sentence on the grounds
that his attorney rendered ineffective assistance of counsel at
the sentencing. Id. at 105-06. The Court of Appeals rejected
the challenge: "[Defendant] claims that his waiver should not bar
consideration of his appeal because counsel was ineffective not
at the time of the plea but at sentencing. We emphatically reject
this contention." Id. at 107. The Court continued: "If we were
to allow a claim of ineffective assistance of counsel at
sentencing as a means of circumventing plain language in a waiver
agreement, the waiver of appeal provision would be rendered
meaningless. This we decline to do." Id.
The reasoning of the Court of Appeals in Djelevic compels the
same resolution in this case. Warren may not attempt to call her plea agreement into question by asserting ineffective
assistance of counsel at the sentencing hearing. She bargained
for the 108-135 month Guidelines range, and Judge Schwartz
sentenced her at the bottom of that range. The waiver remains
effective and, despite Massaro, the Court cannot address her
United States v. Booker, 125 S. Ct. 738 (2005), does not
change this result. "Booker is not retroactive: it does not
apply to cases on collateral review where the defendant's
conviction was final as of January 12, 2005, the date that
Booker was issued." United States v. Guzman, 404 F.3d 139,
141 (2d Cir. 2005). Warren's conviction became final no later
than October 21, 2003, the date the Court of Appeals filed its
Order granting Warren's motion for withdrawal of her appeal.
(See Gov't Br., Exh. B).
For the foregoing reasons, Warren's Section 2255 petition must
B. Warren's Motion for Reconsideration
Warren moves for reconsideration of her sentence pursuant to
Rules 32, 35 and any other applicable Federal Rules of Criminal
Procedure. Mindful of Warren's pro se status, the Court will
look to any rule or statute by which Warren would be entitled to
reconsideration. Rule 32, which governs sentencing and judgment,
is inapplicable. As for Rule 35, the Court applies the version of the rule in effect at the time of Warren's
offense. See United States v. Rivera, 376 F.3d 86, 92 (2d
Cir. 2004). The pre-2002 Rule 35(a) is inapplicable because it
governs remands after appeals under 18 U.S.C. § 3742. The former
Rule 35(b), like the current version, applies only to motions
brought by the Government. The former Rule 35(c), now Rule 35(a),
stated that "[w]ithin 7 days after sentencing, the court may
correct a sentence that resulted from arithmetical, technical, or
other clear error." Warren cannot rely upon this provision
because her motion clearly is untimely. The only other Rule that
addresses the correction of a judgment is Rule 36, but that rule
pertains only to clerical mistakes.
Warren also seeks retroactive application of Amendment 640 to
U.S.S.G. § 2D1.1(a)(3), which provides a base offense level of 30
for defendants who receive mitigating role adjustments in drug
trafficking cases. This amendment became effective on November 1,
2002. This Court may "reduce the term of imprisonment" upon
motion of a defendant "who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently
been lowered . . . if such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission." 18 U.S.C. § 3582(c)(2).
Section 1B1.10 of the Guidelines states that an amendment
cannot be applied retroactively unless it is listed in U.S.S.G. § 1B1.10(c). See United States v. Perez,
129 F.3d 255, 258-59 (2d Cir. 1997). Because Amendment 640 is not listed
in § 1B1.10(c), it cannot be applied retroactively. Furthermore,
Warren did not receive a mitigating role adjustment, as required
by § 2D1.1(a)(3), so she is not entitled to application of the
amendment under any circumstances. Thus, the Court lacks
authority under any rule or statute to reconsider Warren's
sentence. The motion for reconsideration is denied.
Warren's Section 2255 petition is dismissed, and her motion for
reconsideration is denied. This case is closed, and the Clerk is
directed to remove it from the active docket.