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August 29, 2005.

DIEGO FELIX, Petitioner,

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. 3925)
  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 ...

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