The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
Defendant-Petitioner Diego Felix ("Felix"), pro se, has
submitted motions for immediate deportation and for appointment
of counsel to assist him with his petition pursuant to
28 U.S.C. § 2255. He also has filed a pro se § 2255 petition. For the
reasons that follow, Felix's motion for early deportation is
dismissed, his motion for appointment of counsel is denied, and
his § 2255 petition is summarily dismissed.
Felix was charged in two counts of a superseding indictment
filed on December 11, 2001. Count One charged Felix and others
with narcotics conspiracy in violation of 21 U.S.C. § 846. Count
Two charged Felix alone with illegal re-entry into the United States after deportation in violation of
8 U.S.C. § 1326. On January 10, 2003, Felix pled guilty to both counts. On
July 30, 2003, the Court sentenced Felix to a term of 120 months,
plus five years of supervised release. By Mandate dated July 28,
2004, the Court of Appeals for the Second Circuit granted the
Government's motion for summary affirmance.
Felix moves pro se for immediate deportation as a
non-violent offender, pursuant to the Immigration and Nationality
Act ("INA"), 8 U.S.C. § 1252(h)(2)(A). The Government opposes the
motion. The Government also opposes Felix's motion for the
appointment of CJA counsel on the grounds that Felix's § 2255
motion has no likelihood of success. The Government contends that
Felix's plea agreement contains an express waiver of the right to
collaterally attack the conviction or sentence, and that this
provision was triggered by the Court's mandatory minimum sentence
of 120 months' imprisonment.
Motion for Immediate Deportation (01 Cr. 984)
The Attorney General is prohibited by statute from removing an
alien sentenced to imprisonment until he or she is released.
8 U.S.C. § 1231(a)(4)(A). An exception exists for cases involving
non-violent offenders, but the decision to remove such an alien
prior to the expiration of his prison term "is a matter solely
within the discretion of the Attorney General." Thye v. United
States, 109 F.3d 127, 128 (2d Cir. 1997). This exception is not subject to compulsion through a private cause of
action, 8 U.S.C. § 1231(a)(4)(D), and the Court does not have
jurisdiction to review the Attorney General's decision as to
whether approval is appropriate in this instance.
8 U.S.C. § 1252(a)(2)(B)(ii). The motion for deportation is dismissed. Case
No. 01 Cr. 984 remains closed.
Motion for Appointment of Counsel and § 2255 Petition (05 Civ.
Felix's motion seeks the appointment of CJA counsel to assist
him in preparing his § 2255 petition. While this motion was
pending, Felix filed the § 2255 petition pro se. Mindful that
pro se submissions must be construed broadly, McDonald v
Head Criminal Court Supervisor Officer, 850 F.2d 121
, 124 (2d
Cir. 1988), the Court will presume that Felix now seeks
appointment of counsel for the remainder of the § 2255 process.
Prisoners have no constitutional right to counsel when
collaterally attacking their convictions. Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987). The Court, however, has
discretion to appoint CJA counsel where the petitioner is
"financially unable to obtain legal representation and the
appointment serves the interests of justice." 18 U.S.C. § 3006A.
This discretion is not unfettered, and "[i]n deciding whether to
appoint counsel, . . . the district judge should first determine
whether the indigent's position seems likely to be of substance."
Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). Felix pled guilty before this Court pursuant to a written plea
agreement. The agreement explicitly states that "the defendant
will neither appeal, nor otherwise litigate under Title 28,
United States Code, Section 2255, any sentence at or below the
Stipulated Guidelines Sentence of 120 months." (Plea Agmt. at 5).
It is settled law that "[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).
An exception exists, however, where the petitioner attacks "the
validity of the process by which the waiver has been procured."
Id. at 195.
In his § 2255 petition, Felix argues that he "was persuaded to
plead guilty." (Felix Mem. ¶ 11). He protests his innocence,
claiming that "[t]here was no `agreement' by or between
Petitioner and any of his alleged `co-conspirators.'" (Id. ¶
22). He also contends that he was "`duped' into pleading guilty
to a drug quantity (70 kilograms of cocaine) which he was lead
[sic] to understand was considerably better than that charged in
the Indictment." (Id. ¶ 25). He means that he relied on the
bottom of the Sentencing Guidelines range (87 months) without
taking into account the mandatory minimum under the statute (120
months). Felix argues that his counsel was ineffective for (i)
not fully investigating the case, (Id. ¶¶ 34-43), and (ii) not
securing a plea agreement which did not contain a mandatory minimum sentence, (Id. ¶¶ 44-47). He insists that
but for his counsel's errors, he would not have pled guilty and
would have gone to trial. (Id. ¶¶ 48-54). Finally, Felix
alleges "selective prosecution" and that the Government "merely
made up" the narcotics conspiracy charge. (Id. ¶ 61).
These arguments have no merit. Felix waived the right to bring
a collateral attack, and the only way around the waiver is an
attack on its procural; i.e., the plea agreement and the plea
proceeding. See Frederick v. Warden, Lewisburg Corr. Fac.,
308 F.3d 192, 195 (2d Cir. 2002). The Court therefore examines
only Felix's contention that his counsel was ineffective with
respect to the plea, and but for the ineffectiveness, Felix would
not have pled guilty. Such an argument may be made for the first
time on collateral attack. See Massaro v. United States,
538 U.S. 500, 504 (2003).
A. Felix's Competence to Plead Guilty
In testing Felix's argument, the Court examines the minutes of
his plea proceeding on January 10, 2003. At the hearing, the
Court confirmed that Felix could read, write and speak English.
(Tr. at 3).*fn1 Felix stated that he had seen a psychiatrist
"in the past" but he could not recall the time. (Id. at 4). The
Court thereupon asked Mr. Gerzog, Felix's counsel, whether he had any question as to Felix's competency to plead
guilty. (Id.). Mr. Gerzog responded in the negative. (Id.).
Felix revealed that he had been hospitalized for an alcoholism or
narcotics addition 22 months before the plea hearing. (Id. at
4-5). The Court then asked Felix whether he was "feeling
alright," other than being nervous, to which Felix responded:
"I'm just feeling kind of nervous, that's it." (Id.). The Court
asked again: "Okay, But you are feeling alright other than that."
(Id.). Felix responded: "Yeah, I'm alright." (Id.). Finally,
the Court ...