The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
Before the Court is the pro se motion of Petitioner Tony
Mercedes ("Mercedes" or "Petitioner") to vacate, set aside, or
correct his sentence pursuant to 18 U.S.C. § 2255 ("§ 2255"). For
the reasons discussed below, the motion is denied.
On January 4, 2000, Mercedes was arrested and charged with
participating in a conspiracy to commit robbery and committing
robbery. He was also charged with using a firearm in connection
with that crime. On January 19, 2000, a Grand Jury returned a
three-count indictment, charging that Mercedes obstructed
commerce by conspiring to commit and committing robbery, in
violation of 18 U.S.C. §§ 1951 ("Hobbs Act") and 1952, and using
a firearm in connection with the crime, in violation of
18 U.S.C. § 924 (c).
On December 20, 2000, Mercedes pled guilty to all three counts
of the Indictment, pursuant to a written plea agreement. The plea
agreement provided that the Stipulated Guidelines Range was 37 to
46 months for the robbery, plus another 84-month mandatory
consecutive sentence for the firearms charge. The agreement also
stipulated that the Court could enhance the sentence on the first
two charges to 46 to 57 months if it found that Mercedes had
tried to obstruct justice by encouraging friends to create a false alibi on his behalf. The Court
concluded that the Petitioner had obstructed justice and raised
his stipulated range from 121 to 130 months to 130 to 141 months.
Petitioner agreed that he would not appeal or otherwise litigate
under § 2255 any sentence within or below the stipulated United
States Sentencing Guidelines range. Plea Agreement at 5-6. In
Petitioner's plea agreement, he further agreed that "any appeal,
or litigation brought pursuant to Title 28, United States Code,
Section 2255, will be limited exclusively to the issue of whether
Tony Mercedes' conduct merits the two-level sentencing
enhancement" for obstruction of justice. Id. at 5.
During the December 20, 2000 plea allocution, Mercedes
confirmed that his lawyer fully explained the provisions of the
plea agreement and that he understood the plea agreement:
THE COURT: Did [your lawyer] explain this to you,
this plea agreement that I am holding up in my hand?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you really feel you understand it?
THE DEFENDANT: Yes.
Plea Transcript at 13.
Mercedes also confirmed that he understood the agreement's
THE COURT: Do you realize, under the provisions of
this plea agreement, you have waived any right you
have to appeal if I sentence you within the range set
forth in the plea agreement or if I sentence you to
less than that range under the guidelines. Do you
. . . .
THE DEFENDANT: Yes, sir. Id. at 15.
Mercedes further confirmed that he was entering voluntarily
into the plea agreement:
THE COURT: Are you offering to plead guilty of your
own free will?
THE DEFENDANT: Yes, your Honor.
He admitted that he and his accomplice robbed a television
repairman and that he was, in fact, aware that the victim fixed
television sets in his apartment. Id. at 16-17. The Court
accepted Mercedes' plea. Id. at 21.
On April 23, 2001, the Court sentenced Mercedes to 130 months
in prison. Sentencing Transcript at 10. On September 7, 2001,
Mercedes filed a notice of appeal, challenging the sentencing
enhancement for obstruction of justice. The Court of Appeals for
the Second Circuit dismissed the appeal. United States v.
Feliz, 286 F.3d 118 (2d Cir. 2002).
On June 16, 2003, Mercedes filed the instant petition, seeking
relief from his sentence on constitutional grounds. He claims he
was denied effective assistance of counsel. His attorney, he
alleges, should have challenged the government's claim that
Petitioner's robbery was a Hobbs Act violation, and should
therefore not have advised Petitioner to take the plea agreement.
Petitioner argues that the Hobbs Act was inappropriate in his
case because the Act requires robbery of a legitimate business involved in interstate commerce, whereas the
victim of his crime did not run a legal business. Petitioner
requests the Court vacate, set aside, or correct his sentence
pursuant to § 2255.
I. Petitioner Waived His Right to File a § 2255 Petition ...