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GUTIERREZ v. U.S.

September 6, 2005.

EDDIE GUTIERREZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



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

MEMORANDUM AND ORDER

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.

I. BACKGROUND

  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)).

  II. DISCUSSION

  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 ...


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