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December 27, 2005.


The opinion of the court was delivered by: ROBERT CARTER, Senior District Judge


Manuel Gonzalez petitions pursuant to 28 U.S.C. § 2255 (2004) to vacate the judgment of conviction and sentence imposed following his guilty plea to one count of participating in a racketeering organization, one count of conspiracy to commit murder, and one count of using a firearm in connection with the conspiracy to commit murder. Gonzalez pleaded guilty on November 23, 1999, re-entered his guilty plea on March 20, 1999, and was sentenced on August 3, 2000, to thirty-five years imprisonment.

Gonzalez argues that his counsel failed to provide effective assistance, and has subsequently requested leave under Rule 15(a), F.R. Civ. P. to amend his petition to include another argument. Since this is Gonzalez' first request to amend his pleading, the motion for leave to amend is granted. The court will consider his supplemental Sixth Amendment claim, that his sentence violated his right to a trial by jury when his guideline range was calculated following judicial factfinding, in violation of the rule announced by the United States Supreme Court in Blakely v. Washington. 542 U.S. 296 (2004). BACKGROUND

  On the date of he entered his guilty plea, Gonzalez signed an agreement, which bore a typed date of November 1, 1999. Gonzalez and the government agreed that the applicable sentence under the Unites States Sentencing Guidelines was 35 years, and Gonzalez agreed that he would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the Stipulated Guidelines sentence set forth above." Resp't Br., Ex. B, at 6, 7. Gonzalez affirmed at his sentencing that he understood that he was waiving his right to appeal. Resp't Br., Ex. D, at 23.

  Gonzalez' plea allocution included an explicit statement that he was satisfied with the representation afforded by his attorney, whose assistance he now denigrates as ineffective. Respondent's Br., Ex. D, at 13. Furthermore, when accepting his guilty plea the court provided Gonzalez with a second attorney, Jonathan Marks ("Marks") for the purpose of inquiring into whether Gonzalez was satisfied with the performance of his counsel. Id. at 8. Gonzalez was asked whether he "understood that . . . you have been given the opportunity to change counsel," and he affirmed that he did know he had that right, but that he did not wish to exercise it. Id. at 13. Gonzalez reaffirmed that he wished to honor his plea agreement and plead guilty. Id. at 15-16. When he made this statement, Gonzalez was being represented by Marks, not by the attorney about whose performance he currently complains.

  Gonzalez' plea allocution includes his explicit recognition that he had agreed — in binding fashion — to a sentence of 35 years, which he agreed not to challenge either on direct appeal or collaterally. Id. at 21-24. Notwithstanding the quoted provisions of Gonzalez' plea agreement with the government, and his statements during his plea allocution, Gonzalez appealed after receiving the stipulated sentence. The Second Circuit affirmed his conviction by summary order, pointing out that Gonzalez:
[W]aived his right to appeal a sentence of up to thirty-five years imprisonment. . . . the [] exchange at Gonzalez' March 20, 2000 plea colloquy demonstrates that his waiver of the right to appeal his sentence was knowing and voluntary. . . . It is well established that a knowing and voluntary waiver of a defendant's right to challenge and agreed-upon sentence is enforceable.
Gonzalez v. United States, 42 Fed. Appx. 505 (2d Cir. 2002) (citations omitted) (emphasis added). The Second Circuit declined to reach the merits of Gonzalez' claim of ineffective assistance of counsel. Id. at 506. DISCUSSION

  Gonzalez violated the plea agreement when he took the appeal; he has compounded that violation with this petition. See Latham v. United States, 164 F.Supp.2d 365, 366 (S.D.N.Y. 2001) (Mukasey, J.). By singing the plea agreement, Gonzalez explicitly waived any existing claims of ineffective assistance of counsel related to the alleged failure to discuss the benefits of a possible cooperation agreement.

  The only pertinent claim of ineffective assistance of counsel that can be made after entering into a plea agreement waiving appeal rights is an argument that ineffective assistance led to the signing of the agreement. Gonzalez does not claim that his attorney failed to adequately explain the terms of the plea agreement containing the waiver of his right to appeal and to collaterally challenge his sentence. Additionally, Gonzalez pleaded guilty with the assistance of Mr. Marks, about whom Gonzalez makes no allegation of ineffective representation.

  Gonzalez conceded that he received effective assistance from his counsel when considering whether to honor his plea agreement. Accordingly, he cannot now complain about any such ineffective assistance that occurred before the plea was taken. United States v. Coffin, 76 F.3d 494 (2d Cir. 1996); United States v. Torres, 129 F.3d 710 (2d Cir. 1997). Gonzalez does not make any argument that his guilty plea was made without his full knowledge of the consequences. Therefore, his claim of ineffective assistance is inapposite.

  Gonzalez' arguments based on Blakely v. Washington*fn1 fail because the United States Supreme Court has never held that the rule against the enhancement of sentences based on judicial factfinding was to be applied retroactively in criminal cases on collateral review. See Guzman v. United States, 404 F.3d 139, 143-45 (2d Cir. 2005). Therefore, Gonzalez has not raised a cognizable Sixth Amendment claim.

  Finally, in a letter of May 20, 2004, Gonzalez asks the court not to oppose his request to the Bureau of Prisons for a nunc pro tunc retroactive designation of a state prison as a place of incarceration for his current federal sentence.*fn2 However, federal credit for his state sentence cannot be given for the time in custody before Gonzalez' sentencing, August 3, 2000. Gonzalez will receive credit against his state sentence for the time between his transfer to the custody of the U.S. Marshals Service and the imposition of his federal sentence, since "transfer of an inmate to federal court pursuant to a writ of habeas corpus ad prosequendum does not amount to a relinquishment of primary jurisdiction." Rosemond v. Menifee, 137 F. Supp. 2d 270, 273 (S.D.N.Y. 2000) (Scheindlin, J.); Cf. People ex rel. Rainone v. Murphy, 1 N.Y.2d 367, overruled on other grounds in People ex rel. Petite v. Follette, 24 N.Y.2d 60. Accordingly, the Bureau of Prisons may not determine that his federal sentence was being served before August 3, 2000.*fn3

  Gonzalez' habeas corpus petition violates a valid and enforceable plea agreement, and accordingly is dismissed.


20051227 ...

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