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United States District Court, S.D. New York

September 6, 2005.


The opinion of the court was delivered by: DEBORAH BATTS, District Judge


Petitioner Eddie Gutierrez, proceeding pro se, moves this Court pursuant to 28 U.S.C. § 2255 to vacate the 324-month prison sentence it imposed upon him on June 23, 2004. For the following reasons, the Court DENIES Petitioner's motion in its entirety.


  On October 31, 2003, Petitioner pled guilty to a two-count Superseding Indictment ("Sup. Ind.") charging him and three other defendants with narcotics conspiracy involving more than five kilograms of cocaine, in violation of 21 U.S.C. § 846, and distribution of and possession with intent to distribute 182 kilograms of cocaine, in violation of 21 U.S.C. §§ 812, 841(a) (1) and 841(b) (1) (A). (Sup. Ind. ¶¶ 102, 5). These charges stemmed from Petitioner's and co-defendants' abandonment of a couch on the East Side of Manhattan inside of which the Department of Sanitation found 182 kilograms of cocaine. (Id. ¶ 4; Transcript of Proceedings of October 31, 2003 [Plea Tr."] at 18). Petitioner had agreed with the co-defendants to drive a truck containing the couch from El Paso Texas to New York in March of 2002. (Plea Tr. at 16-17).

  At his plea allocution, the Court, in order to satisfy itself that Petitioner's guilty plea was knowing and voluntary, asked him, among other things:

"[H]as anyone offered you any inducements or threatened you or forced you to plead guilty?
(Plea Tr. at 15-16). To which Petitioner responded: "No." (Id. at 16). Petitioner's trial counsel then informed the Court that he did not "know of any valid defense" or "any impediment to [Petitioner's] pleading guilty at this time," after which Petitioner allocuted to the charges in the Superseding Indictment, although he only admitted to having transported "150 packages" of cocaine. (Id. at 16-18). The Government then stated on the record that, if the case had gone to trial, it "would have been able to establish beyond a reasonable doubt the fact that [Petitioner] and others transported in excess of 170 kilograms of cocaine . . . packaged inside of a couch from E1 Paso, Texas to the New York area where the couch was abandoned," and that it "would have proved this through the testimony of witnesses and the existence of various records and other physical evidence that connected [Petitioner] and others to the delivery of this particular couch." (Id. at 18). Finally, after Petitioner acknowledged that he heard the Government's representations regarding its evidence against him, he stated that he as pleading guilty to the charges in the Superseding Indictment, and the Court accepted his plea. (Id. at 18-19)

  Following Petitioner's guilty plea, the United States Probation Department for the Southern District of New York, at the Court's direction, prepared a Presentence Report ("PSR") which recommended that Petitioner's offense level under the United States Sentencing Guidelines be increased by six points based on the Probation Department's findings that: (1) the narcotics conspiracy charged in the Superseding Indictment involved 5 or more people, (2) Petitioner was the organizer and leader of this conspiracy, and (3) Petitioner had used a minor child to commit the crimes to which he had pled guilty. (PSR ¶¶ 30, 32). Originally, Petitioner objected to these findings as well as to the PSR's stated drug amount of 182 kilograms, arguing that the 182 kilograms was actually a mixture of cocaine and other substances and that the amount of pure cocaine that he had transported in the truck, which was less than 111 kilograms, was the proper amount to use in calculating his case Guideline offense level. (See Letter from Defense Counsel to the Court, dated February 5, 2004 at 1; Transcript of Proceedings held on March 8, 2004 ["March 8th Tr."] at 3-7).

  Faced with Petitioner's objections, the Court scheduled a Fatico hearing to determine whether there was sufficient factual support for the PSIR's Guideline offense level and offense level enhancement recommendations. (March 8th Tr. at 10-11). However, on the day of the hearing, June 23, 2004, defense counsel informed the Court that Petitioner had decided to withdraw his objections to the enhancements, while the Court, relying on Second Circuit precedent, ruled that it would use the cocaine mixture weight rather than the pure cocaine weight to calculate Petitioner's base Guideline offense level. (Transcript of Proceedings held on June 23, 2004 ["Sent. Tr."] at 3-5). Defense counsel then described to the Court Petitioner's chronic health problems-including advanced diabetes, a high risk of renal failure and the need for dialysis- nd requested that he be sentenced at the bottom of the Guidelines range and that he be designated to La Tuna correctional facility in Anthony, Texas to be close to his family in E1 Paso, Texas, or alternatively, if it became medically necessary, to the Bureau of Prisons (BOP) medical facility in Fort Worth, Texas, the closest such facility to Petitioner's family. (Id. at 7-8). The Court then adopted the PSIR's factual recitations, Guideline offense level calculation of 41, and criminal history category calculation of I, and sentenced Petitioner to 324 months imprisonment concurrently on Counts One and Two of the Superseding Indictment, to be followed five years of supervised release. (Id. at 8-9). The Court also recommended that the BOP designate Petitioner to La Tuna and, if it became medically necessary, to move him to Fort Worth. (Id. at 9).

  Thereafter, Petitioner did not appeal his sentence to the Second Circuit. He now brings this § 2255 motion offering four grounds for vacation of his sentence: (1) his guilty plea was unlawfully induced and involuntary; (2) ineffective assistance of counsel; (3) the Court's failure to consider his health problems when imposing his sentence; and (4) pursuant to the Supreme Court's decision in Blakely v. Washington, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Court is permitted to and should consider mitigating circumstances when sentencing him. (Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by A Person in Federal Custody ("Pet.") ¶¶ 12(a)-(d)).


  To vacate or set aside a sentence under 28 U.S.C. § 2255, a petitioner must demonstrate a "constitutional error, 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) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)). However, a petitioner cannot assert claims, constitutional or otherwise, that he failed to raise at trial, sentencing or on direct appeal "unless he can establish both cause for the procedural default and actual prejudice resulting therefrom." DeJesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998); Campino v. United States, 968 F.2d 187, 189-90 (2d Cir. 1992) (extending the "cause and prejudice" procedural default test to constitutional claims raised in a § 2255 motion); see also United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998) ("A motion under § 2255 is not a substitute for an appeal."). "Cause may be demonstrated with `a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or that the procedural default is the result of ineffective assistance of counsel.'" Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)).

  Importantly however, the procedural default rule does not bar § 2255 collateral review of ineffective assistance of counsel claims. See Massaro v. United States, 538 U.S. 500, 508, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) ("[F]ailure to raise an ineffective assistance of counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255.").

  Thus, in the present case, while Petitioner admits that he did not raise any of the four claims in his § 2255 Petition on direct appeal (see Pet. ¶ 13), his ineffective assistance of counsel claim is not procedurally barred from consideration on the merits by this Court. As for his other three claims, Petitioner appears to blame his procedural default on ineffective assistance of his trial counsel, who, under Second Circuit Local Rule 4(b), was also his attorney for the purposes of direct appeal, and who, Petitioner claims, failed to appeal Petitioner's sentence despite being asked by Petitioner to do so. (Id.) An attorney's error can only constitute sufficient cause for procedural default if such error constitutes constitutionally ineffective assistance under the two-part test established by the Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Murray v. Carrier, 477 U.S. at 488 ("So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, . . . we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default.").

  While it is unclear to the Court whether Petitoner's trial counsel's failure to appeal his sentence constitutes ineffective assistance of counsel under Strickland, nevertheless, because the procedural default doctrine is prudential rather than jurisdictional, see Kuhali v. Reno, 266 F.3d 93, 101 (2d Cir. 2001), the Court can and will address the merits of petitioner's four claims. Moreover, as it does with all pro se pleadings, the Court will construe Petitioner's § 2255 motion liberally, interpreting it as making the strongest arguments possible. See Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998) (""Just a pro se complaints `must be liberally construed' . . . a district court must review a pro se petition for collateral relief `with a lenient eye, allowing borderline cases to proceed.'") (citing Williams v. Kullman, 722 F.2d 1048, 1050 92d Cir. 1983); and Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)).

  A. Involuntary Guilty Plea

  Petitioner contends that his plea was not knowing and voluntary because he only pled because his attorney had falsely promised to raise with the Court the fact that Petitioner had abandoned the drugs he was charged with distributing. (Pet. ¶ 12(a)). However, during his plea allocution, Petitioner stated, under oath, that no one "had offered [him] any inducements" to plead guilty. (Plea Tr. at 16).

  Because statements at a plea allocution "carry a strong presumption of verity," Blackledge v, Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 91977), "unsupported allegations which merely contradict? [a defendant's] earlier statements made under oath at his plea allocution" do not provide sufficient grounds for withdrawal of a guilty plea as involuntary. United States v. Gonzalez, 970 F.2d 1095, 1100-01 (2d Cir. 1992); see also United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997) ("A defendant's bald statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw his guilty plea."). Thus, Petitioner's uncorroborated assertion that he was induced to plead guilty by his attorney's false promise is not enough to overcome the presumption of voluntariness created by his sworn statements to the Court during his plea allocution. Accordingly, Petitioner's first claim is without merit.

  B. Ineffective Assistance of Counsel

  Petitioner also claims that his attorney's failure to raise as a defense the fact that neither the cocaine in question nor other incriminating evidence were actually in his possession when seized by law enforcement officials constituted ineffective assistance of counsel. (Pet. ¶ 12(b)). Under Strickland v. Washington, an attorney only fails to provide effective assistance of counsel if (1) his or her performance "fell below an objective standard of reasonableness" in light of prevailing professional norms, and (2) this deficient performance prejudiced the defense, such that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 687-88, 694.

  Even assuming that Petitioner's attorney's failure to raise the above-mentioned issues with the Court was objectively unreasonable, it does not satisfy the second prong of the Strickland test. As an initial matter, it is unclear how Petitioner's attorney's failure to raise these potential defenses negatively impacted Petitioner when he himself waived all defenses by pleading guilty. Moreover, even if the Court interprets Petitioner's claim as alleging that he would not have pled guilty if his attorney had agreed to raise these potential defenses at trial, Petitioner's chances of being acquitted at trial based on these defenses is not supported by the law. Possession of the drugs in question is not even an element of narcotics conspiracy. See United States v. Richards, 302 F.3d 58, 66 (2d Cir. 2002) (noting that "the only elements of a section 846 narcotics conspiracy are the existence of the conspiracy [,] the defendant's willful joining of it," and, in some cases, the amount of drugs involved) (citations omitted).

  The possession element of a § 841(a)(1) offense can be satisfied through direct or circumstantial evidence that the defendant had either actual or constructive possession of the drugs. See United States v. Gordils, 982 F.2d 64, 71 (2d Cir. 1992); United States v. Bryce, 208 F.3d 346, 353 (2d Cir. 1999); United States v. Campbell, 210 F.3d 356, 2000 WL 426196, at *1 (2d Cir. April 18, 2000) (unpublished opinion). "Constructive possession exists when a person . . . knowingly has the power and intention at a given time to exercise dominion and control over an object, either directly or through others." Gordils, 982 F.2d at 71 (citations and internal quotations omitted). As both the Government's representations at the plea allocution and the factual recitations of the PSR clearly demonstrate, if the Petitioner's case had gone to trial, the Government could have produced substantial direct and circumstantial evidence-including witness testimony and documents found in the rental truck driven to New York by Defendant and his co-conspirators that Petitioner knew contained the drugs in question. (See plea Tr. at 18; PSIR ¶¶ 12-14, 16). Thus, the Government had sufficient evidence to establish beyond a reasonable doubt that Petitioner had been in constructive possession of the 182 kilograms of cocaine during the time period alleged in the Superseding Indictment, and therefore the fact that Petitioner may no longer have been in possession of the drugs at the time they were actually seized by law enforcement would not have prevented his conviction on the § 841(a)(1) charge. Indeed, this Court does not know of any federal court that has recognized abandonment as a defense to the crime of possession with intent to distribute narcotics. See United States v. Smith, 855 F.2d 863, 1988 WL 86217, at * 2 (9th Cir. May 24, 1988) ("the abandonment defense has never been applied to possession of cocaine with intent to distribute, because the possession offense is complete once the drugs are possessed with the intent to distribute.") (citing cases) (unpublished decision).

  Accordingly, because Petitioner has not shown that the outcome of his criminal prosecution would have been different if his attorney raised the aforementioned defenses, his ineffective assistance of counsel claim is also without merit.

  C. Petitioner's Health and Blakely Concerns

  Petitioner's final two claims focus on the Court's authority to reduce his sentence under the Sentencing Guidelines. Specifically, Petitioner claims that (1) the Court should have departed downward from the 324-405 month Guideline sentencing range within which it sentenced him on account of his serious health problems; and (2) the Supreme Court's decision in Blakely v. Washington "allows Federal judges to consider more mitigating circumstances under which a defendant can be sentenced." (Pet. ¶¶ 12(c)-(d)).

  Petitioner is correct that under United States v. Booker, 125 S.Ct. 738 (2005) (no Blakely), federal sentencing courts do have more authority to depart from the Guidelines. Moreover, in light of the first two sentencing factors listed in 18 U.S.C. § 3553(a), which respectively refer to "the history and characteristics of the defendant" and "the need for the sentence imposed — to provide the defendant with needed . . . medical care," it would seem that defendant's health problems could, in some circumstances, merit imposition of a sentence below that called for by the Guidelines. However, as the Second Circuit has emphasized, "Booker . . . and section 3553(a) do more than render the Guidelines a body of casual advice, to be consulted or overlooked at the whim of a sentencing judge . . .," Crosby, 397 F.3d at 113-114, while federal courts have traditionally found only health problems involving "extraordinary physical impairments" that cannot be adequately cared for the federal prison system to provide sufficient grounds for departing downward from the applicable Guideline sentencing range. See United States v. Altman, 48 F.3d 96, 104 (2d Cir. 1995); United States v. Garcia, No. 01-1650, 2002 WL 1990335, at *1 (2d Cir. Aug. 29, 2002) (unpublished decision) (citing cases).*fn1

  In the present case, Petitioner's health problems do not provide sufficient grounds for imposing a sentence below the applicable advisory Guideline Range. While Petitioner reportedly has "advanced diabetes", high blood pressure, "severe renal failure" and glaucoma, has suffered two strokes, and is relegated to a wheelchair and requires the use of a dialysis machine and several types of medication (Plea Tr. at 4-5; Sent. Tr. at 6-7; PSIR ¶¶ 55-58). he neither claims nor provides any evidence that such health problems cannot be adequately addressed in one of the Bureau of Prison's many medical facilities. In fact, at sentencing, Petitioner's attorney stated that the BOP's hospital in Fort Worth, Texas could furnish the "best treatment that the needs for the various ailments that he has." (Sent. Tr. at 8). Thus the Court sees no reason to reduce Petitioner's sentence based on his health concerns. See Altman, 48 F.3d at 104 (affirming district court's refusal to downwardly depart for "extraordinary physical impairment" where defendant did "not challenge district court's finding that the [BOP] would be fully able to monitor his health").

  Similarly, petitioner does not contend, nor does the Court find, that any of the remaining § 3553(a) factors*fn2 weigh in favor of imposing a sentence lower than 324 months. Finally, even if the Court construes Petitioner's Blakely claim liberally to allege that the Court's imposition of an enhanced sentence under the Guidelines based on two facts-his leadership role in the narcotics conspiracy and his use of a minor in committing his crimes-that were neither admitted to or proven to a jury was unlawful, such claim also fails because "with the mandatory use of the Guidelines excised, the traditional authority of a sentencing judge to find all facts relevant to sentencing will encounter no Sixth Amendment objection." Crosby, 397 F.3d at 112.

  Accordingly, Petitioner's third and fourth claims also do not entitle him to § 2255 relief.


  For the reasons stated above, Petitioner's motion to vacate his sentence pursuant to 28 U.S.C. § 2255 is DENIED IN ITS ENTIRETY. In addition, because Petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability shall not issue. See 28 U.S.C. § 2253(c)(2); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). Further, should the Petitioner seek to appeal in forma pauperis, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). The Clerk of Court is directed to close the docket in the above-captioned civil case.



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