United States District Court, S.D. New York
August 29, 2005.
DIEGO FELIX, Petitioner,
UNITED STATES OF AMERICA, Respondent. UNITED STATES OF AMERICA, v. DIEGO FELIX, Defendant.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
OPINION AND ORDER
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 asked Felix if he was under the influence of drugs or
alcohol, which would affect his ability to understand what he was
doing. (Id.). Felix responded: "No, I haven't take no drugs."
(Id.), which, despite the double negative, surely meant "no."
B. Felix's Understanding of the Plea Agreement
Felix stated that he understood (i) the charges in the
Indictment (Tr. at 5), (ii) that his plea meant that there would
be no trial (Id. at 7); and (iii) that the Court could sentence
him as though a jury had convicted him. (Id. at 8). With
respect to Count One, the narcotics count, the Court asked:
THE COURT: Alright. Now on your plea of guilty to
Count 1 the maximum possible sentence is up to life
in prison. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And there is a mandatory minimum on Count
1 of ten years. Do you understand that?
THE DEFENDANT: Yes. (Tr. at 8). This colloquy demonstrates Felix's clear
understanding that the minimum sentence on Count One of the
indictment was 120 months, or 10 years.
The Court then asked Felix if Mr. Gerzog had explained the plea
agreement to him. (Tr. at 11). Felix answered: "Yes, he did."
(Id.). When the Court asked Felix if he understood the plea
agreement, he responded that there were "a couple of things" he
didn't agree with, but that he was "pleading guilty with an
explanation to the plea agreement." (Id.). When the Court
queried Felix on his disagreement, the following colloquy ensued:
THE DEFENDANT: The knowledge that the government
specified in there, saying that I have knowledge that
it was a transaction of 70 kilo taking place, when in
reality I didn't have no knowledge of that. I never
seen even two kilos in my life altogether. That's the
information I got right there. And it turns out that
the 70 kilos they had in their possession turned out
to be all baking soda, I didn't have no knowledge of
THE COURT: Did you know or have good reason to
believe that there was more than five kilos?
MR. GERZOG: Your Honor, what we are prepared to say
about that, the fact of the matter is that before
entering into the transaction, Mr. Felix didn't know
how much cocaine was involved. However, we are
prepared to concede that the government could prove
beyond a reasonable doubt at trial that the
conspiracy itself was to possess with intent to
distribute more than five kilograms of cocaine, and
that that fact was reasonably foreseeable to Mr.
(Id. at 12). Felix calls this passage "troubling" and argues
that it proves his argument that the proceedings "were completely
done in order to appease the government." (§ 2255 Pet. ¶ 45). What Felix ignores is the continuation of the conversation after
Mr. Gerzog finished speaking:
THE COURT: Alright Mr. Gerzog. Did you hear what
you[r] lawyer said?
THE DEFENDANT: Yes. I just heard what he said.
THE COURT: Do you agree with that?
THE DEFENDANT: I agreed what he said just until now,
THE COURT: When you say until now, do you agree now,
THE DEFENDANT: Yeah.
(Tr. at 12-13). Felix therefore agreed with his counsel that the
Government could prove beyond a reasonable doubt that the
conspiracy was to possess or distribute more than 5 kilograms of
cocaine, and that Felix could reasonably foresee this fact. This
was sufficient to trigger the ten-year mandatory minimum.
The Court also made sure that the defendant understood that he
could not appeal this sentence, and Felix responded "Yes, your
Honor." (Id. at 14).
C. Whether Felix Was Coerced Into the Plea
As for Felix's contention that he was somehow "persuaded" to
plead guilty, the following colloquy debunks that contention:
THE COURT: Now, I know you hope for leniency, but
that's not what I am going to ask you now. Have you
been induced to offer to plead guilty by reason of
any promise or statement by anybody to the effect
that you were going to get a break, in other words,
that you were going to get special treatment or leniency because you were
THE DEFENDANT: No.
THE COURT: Okay. Are you offering to plead guilty of
your own free will?
THE DEFENDANT: Yes, your Honor.
THE COURT: Have you been induced to offer to plead
guilty by any fear, or pressure, or threat, or force
or anything like that?
THE DEFENDANT: None whatsoever.
(Tr. at 16).
Later in the hearing, when Felix allocuted to his offense
conduct on the narcotics conspiracy charge, the Court made it
clear that Felix was not being forced to plead guilty:
THE DEFENDANT: [Felize, a co-conspirator] wanted me
to bring somebody with a driver's license to drive a
car because he was trashed and he didn't have no
THE COURT: That had to do with narcotics?
THE DEFENDANT: Yes, obviously.
THE COURT: You see, I don't know that. You have to
THE DEFENDANT: It turned out to be that he had
something in that car that wasn't legal.
THE COURT: Well, that didn't surprise you, did it?
THE DEFENDANT: It surprised me.
THE COURT: It did?
THE DEFENDANT: It did surprise me. THE COURT: I dont't know how I'm going to take this plea then.
If you didn't think it involved narcotics, how can I take the plea? I told
you, I don't want to talk you into it, I don't want to talk you out of it.
It's not my --
THE DEFENDANT: I thought it involved narcotics because he
offered Victor Estrella [another co-conspirator] $10,000 to drive that
THE COURT: So you knew pretty much?
THE DEFENDANT: I figured there was something wrong, yes.
THE COURT: Alright. And around the 21st of June did you, Felize
and Estrella meet out in Queens about the narcotics?
THE DEFENDANT: Yes, I know it's wrong.
(Tr. at 18-19). Here, the Court informed Felix quite clearly that he was not
being forced into the plea. Nevertheless, Felix confirmed that he could
reasonably foresee that narcotics were involved in the matter of the car,
and that he met with the two co-defendants, Felize and Estrella, about the
cocaine, which was more than five kilograms.
The foregoing excerpts from the plea hearing establish that Felix was
fully aware of his situation and able to give more than "yes/no" responses
to the Court's questions. There is no indication that he was duped into the
plea, or that he did not understand the terms of the plea agreement (which
included a waiver of collateral attack) and the mandatory minimum sentence of ten years. Felix's arguments about 70 kilograms of cocaine are
beside the point. Once he admitted to a quantity of 5 grams or
more, the ten-year mandatory minimum became applicable. See
21 U.S.C. § 841 (b) (1) (A).
Felix has not succeeded in making a showing under Hodges that
his position is "likely of substance." He has not shown
ineffective assistance of counsel in the procural of the
collateral attack waiver in his plea agreement, as set out in
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984) ((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."). Mr. Gerzog obviously
negotiated the plea agreement on Felix's behalf, and Felix
entered into it with his eyes wide open. He said so repeatedly at
the plea hearing. The terms of the agreement govern; collateral
attack is not permissible. There is no issue of "selective
prosecution" either. If the Government "selected" Felix for
prosecution, it was because he violated the law.
Based on the foregoing findings and the prior proceedings in
this case, the Court concludes that Felix's § 2255 petition
plainly fails on its face. Pursuant to Hodges, the Court
declines to appoint CJA counsel to assist Felix with the
petition. Moreover, because the petition plainly fails, the Court need not order the Government to submit opposition papers.
See Rule 4(b) of the Rules Governing Habeas Petitions for the
U.S. Dist. Cts.; Armienti v. United States, 234 F.3d 820,
822-23 (2d Cir. 2000) ("If it plainly appears from the face of
the motion and any annexed exhibits and the prior proceedings in
the case that the movant is not entitled to relief in the
district court, the judge shall make an order for its summary
dismissal."). Felix's § 2255 petition is summarily dismissed.
For the foregoing reasons, Felix's motion for immediate
deportation is dismissed, his motion for appointment of counsel
is denied, and his petition pursuant to 28 U.S.C. § 2255 is
summarily dismissed. The Clerk is directed to close Case No. 05
Civ. 3925 and remove it from the Court's active docket.
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