United States District Court, S.D. New York
December 27, 2005.
MANUEL GONZALEZ Petitioner,
THE UNITED STATES OF AMERICA Respondent.
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
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
[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.
IT IS SO ORDERED
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