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Florez v. United States

January 18, 2007

JOSE FLOREZ PETITIONER,
v.
UNITED STATES OF AMERICA RESPONDENT.



The opinion of the court was delivered by: Trager, J

MEMORANDUM AND ORDER

Pro se petitioner Jose M. Florez ("Florez") filed this habeas corpus petition pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the petition is denied.

Background

On December 21, 1998, petitioner Jose Florez pled guilty to one count of conspiracy to import heroin into the United States, in violation of 21 U.S.C. § 963. In connection with his guilty plea, Florez entered into a plea agreement with the Government (the "Plea Agreement"), which contained an appeal waiver provision stating that Florez would "not file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposes a sentence within or below [210-262 months]." Plea Agreement ¶¶ 2, 4. On July 28, 1999, Florez appeared before the United States District Court for the Eastern District of New York and was convicted on his guilty plea. Florez received a downward departure below the Sentencing Guidelines range and was sentenced to the statutory minimum of 120 months' imprisonment followed by a five-year term of supervised release.

Florez filed his original petition on August 17, 2000, moving to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the following grounds: 1) trial counsel was ineffective; 2) the court erred in calculating the quantity of narcotics attributable to Florez under the sentencing guidelines; 3) the court erred in enhancing Florez's sentence for having a leadership role in the conspiracy; 4) the Government coerced Florez's co-conspirators into lying about the quantity of narcotics involved in the conspiracy; 5) Florez's sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000); and 6) there was a disparity between Florez's sentence and the sentences of his co-conspirators. Mot. to Vacate, Set Aside, or Correct Sentence, at 4-5(a). Florez filed a supplemental petition on October 24, 2005, expounding on his ineffective assistance of counsel claim and additionally arguing that 7) his indictment was defective. Supp. to Mot. Pursuant to 28 U.S.C. § 2255.

Discussion

(1)

Florez's petition is untimely and waived Florez's instant petition is barred both by the one-year statute of limitations on section 2255 petitions mandated under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2255, and by Florez's knowing and voluntary waiver of his right to challenge his sentence.

Petitions brought under section 2255 must be filed within one year of the date on which the underlying conviction becomes final. 28 U.S.C. § 2255 ("[a] 1- year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of -- (1) the date on which the judgment of conviction becomes final . . ."). In the event that no direct appeal is taken, judgment becomes final "the day after [the defendant's] time to appeal expire[s]." Wims v. United States, 225 F.3d 186, 188 (2d Cir. 2000). Federal Rule of Appellate Procedure 4(b)(1)(A) provides that in a criminal case a defendant's notice of appeal must be filed within ten days of the entry of judgment. Thus, for purposes of a habeas petition under section 2255, a defendant's conviction becomes final when he fails to file a direct appeal ten days after the judgment is entered.

Here, the court entered a Judgment of Conviction against Florez on July 28, 1999. Florez never filed an appeal. Excluding the day the conviction was entered as well as weekends under Federal Rules of Appellate Procedure 26 (a)(2) and (a)(3), Florez's conviction became final on August 12, 1999,*fn1 when the ten-day time limit on filing a notice of appeal had expired. The instant petition was not filed until August 17, 2000.*fn2 Thus, the petition was not filed within the one-year statute of limitations required AEDPA and Florez offers no reasons to equitably toll the limitations period. As Florez's petition was untimely, the court lacks jurisdiction to entertain it.

Furthermore, Florez waived his right to file a section 2255 petition in his Plea Agreement. See Plea Agreement ¶ 4. The Second Circuit has repeatedly held that a knowing and voluntary waiver of the right to appeal a sentence within or below the stipulated Guidelines range shall be enforced. See, e.g., United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000); United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998) (holding that appeal of sentence under section 2255 was foreclosed by plea agreement where district court imposed a sentence within the range stipulated by the agreement). Waivers of appeal are binding on both direct appeals and petitions brought under section 2255. Djelevic, 161 F.3d at 106; LoCurto v. United States, No. 05-CV-1327, 2006 WL 618412, at *12 (E.D.N.Y. Mar. 10, 2006) ("A knowing and voluntary waiver of a right to appeal constitutes a waiver to relief under 28 U.S.C. § 2255."); Defex v. United States, No. 97-CV-1891, 1998 WL 812572, at *2 (E.D.N.Y. May 19, 1998) (denying collateral review under section 2255 after the defendant waived right to appeal in plea agreement). Permitting defendants to appeal sentences conforming to plea agreements "would render the plea bargaining process and resulting agreement meaningless." United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993) (per curiam).

The record reflects that Florez knowingly and voluntarily waived his right to appeal or otherwise challenge his sentence. During the December 21, 1998 plea allocution, Florez confirmed that his lawyer fully explained the provisions of the Plea Agreement to him and that he understood its terms:

THE COURT: And did you discuss [the Plea Agreement] with your lawyer and understand ...


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