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Perez v. United States

July 27, 2006

JULIO C. PEREZ. PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Siragusa, J.

DECISION and ORDER

INTRODUCTION

This case is before the Court on defendant's motion, brought pursuant to 28 U.S.C. § 2255 (2003)*fn1 , to vacate his sentence and the respondent's cross-motion to dismiss. For the reasons stated below, both applications are denied.

BACKGROUND

On November 29, 2001, petitioner, Julio Perez, pursuant to a written plea agreement with the respondent, pled guilty to a violation of 21 U.S.C. § 846 (conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine, fifty grams or more of cocaine base and one kilogram or more of heroin). (Plea agreement (# 682) at 32.) Respondent and petitioner's counsel agreed petitioner's offense level was 35, resulting in a sentencing range of 262-327 months. (Id. at 18.)

Perez agreed as part of his plea deal that he would neither appeal nor collaterally attack any sentence of imprisonment of 262-327 months or less. (Plea agreement at 21.) The plea agreement was executed in open court following a plea colloquy where the Court carefully reviewed the salient terms of the agreement. (Plea transcript at 1-35.) The Court confirmed that Perez was informed of the charges, agreed to the facts that supported the charges, fully understood the material terms of the agreement and the consequences of pleading guilty, and that he had not been coerced in any way into entering the plea. (Id. at 34.)

On January 9, 2002, the District Court sentenced Perez to the statutory mandatory minimum term of imprisonment, 240 months, a ten year term of supervised release, a fine of $500 and a special assessment of $100. (Sentencing Transcript (# 682) at 20.) Perez did not directly appeal his conviction or sentence. On October 12, 2004, Perez filed what he captioned a "Supplemental Memorandum in Support of Motion to Vacate pursuant to 28 U.S.C. § 2255" (# 660). On August 12, 2005, upon Order of the Court, Perez filed a response as to why his application should not be barred as untimely*fn2 under § 2255. Petitioner attached to his response a document captioned, "Petitioner's Brief in Support of Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255, with Regarding His Claims to Relief as Stated." (# 674, at 17.) In paragraph twenty five of this document, petitioner alleges that, although he instructed his defense counsel to file an appeal, counsel failed to do so. (Id.) Consequently, he maintains his counsel provided ineffective assistance.

In response, the respondent filed the "Government's Motion to Dismiss and Response to Motion Pursuant to 28 U.S.C. § 2255." (# 682.) In its papers, the respondent argues its cross-application should be granted on two bases. First, the respondent contends that petitioner's claims are barred by his plea and collateral attack waiver. Second, the respondent maintains that petitioner is barred from raising his claims by procedural default.

DISCUSSION

As to the first ground upon which the respondent seeks relief, it is well settled that plea agreements are generally enforceable when a petitioner waives the right to appeal a sentence within an agreed upon Guidelines range. United States v. Garcia, 166 F.3d 519, 521 (2d Cir. 1999); see also United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998) (holding waivers of collateral attacks under § 2255 are similarly enforceable). A waiver in a plea agreement of a right to appeal or collaterally attack a sentence is enforceable if it was knowingly and voluntarily made. See United States v. Rosa, 123 F.3d 94, 97 (2d Cir. 1997). "When the respondent negotiates a plea agreement with a petitioner that includes waiver of the right to appeal, one benefit the respondent is supposed to receive . . . is freedom from having to address post-conviction arguments." Latham v. United States, 164 F. Supp. 2d 365, 367 (S.D.N.Y. 2001) (dismissing § 2255 petition without an extensive review of its merits because it violated a "valid and enforceable plea agreement.") "In no circumstance . . . may a petitioner, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement. Such an agreement would render the plea bargaining process and the resulting agreement meaningless." United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993) (enforcing a plea agreement's stipulation not to appeal from a sentence falling within a specified range).

This Court finds that in petitioner's plea agreement, he explicitly waived his right to appeal or collaterally attack any sentence within or below the stipulated guideline range. (Plea Transcript (# 682) at 23.) The record of petitioner's plea hearing shows unequivocally that he understood that he could not appeal or bring a motion under § 2255 to attack a sentence within the range set forth in the agreement. (Id.)

Federal Rule of Criminal Procedure 11(b)(1)(N) requires that "before the court accepts a plea of guilty . . . the court must inform the petitioner of, and determine that the petitioner understands . . . the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence." In response to this Court's questions at the plea allocution, petitioner stated, under oath, that he had reviewed the plea agreement with his lawyer, that he understood he was waiving his right to appeal and to collaterally attack any sentence within the guideline range, and that the waiver was a condition of the plea agreement. (Id.)

COURT: Now, I want you to turn to page 10, where it says "Appeal Rights." I want you to understand this, two very important points. If, however, I get there, you end up getting 27 years or less, 27 years or less, not only can you not withdraw ...


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