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MERCEDES v. U.S.

October 7, 2005.

TONY MERCEDES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge

OPINION and ORDER

PRELIMINARY STATEMENT

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.

  BACKGROUND

  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 waiver provision:
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 understand that?
. . . .
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.
Id.

  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.

  DISCUSSION

  I. Petitioner Waived His Right to File a § 2255 Petition ...


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