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Favia v. United States

July 17, 2007

ANTHONY FAVIA MOVANT,
v.
UNITED STATES OF AMERICA RESPONDENT.



The opinion of the court was delivered by: Trager, District Judge

MEMORANDUM AND ORDER

Pro se movant Anthony Favia ("Favia" or "movant") files this § 2255 motion seeking to challenge his thirty month sentence. For the following reasons, the motion is denied.

Background

(1) The Plea Hearing

On January 26, 2000, movant Anthony Favia pled guilty before Magistrate Judge Pollak to one count of conspiracy to interfere with interstate commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951. Mot. to Vacate, Set Aside, or Correct Sentence at 2. Specifically, movant pled guilty to serving as the getaway driver in the armed robbery of the employees of a Petland Discount Store on December 27, 1997 in which $3,876 was stolen.*fn1 Transcript of Guilty Plea ("Plea Hr'g Tr.") at 24:9-25:15; Presentence Investigation Report ("PSR") ¶ 14. At this hearing, Favia was represented by Emmanuel Moore ("Moore"). In accordance with his guilty plea, Favia entered into a plea agreement with the United States government ("Plea Agreement") which specified an estimated total offense level of 18 and a sentence range of 27 to 33 months.*fn2 Plea Agreement ¶ 2. The Plea Agreement contained an appeal waiver provision, which provided that the movant "will not file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposes a sentence within or below the range" of 27 to 33 months. Plea Agreement ¶ 4.

At the plea allocution hearing, Favia stated that no one had promised him how long of a sentence he would ultimately receive. Plea Hr'g Tr. at 16:25-17:2 (Q: "Has anyone made any promise to you as to what your sentence will be?" A: "No."). Favia was also informed by Judge Pollak that the recommended sentence in the Plea Agreement was only a non-binding estimate for the sentencing judge to consider, and that no one could promise him a specific sentence prior to the sentencing hearing. Plea Hr'g Tr. at 17:20-18:4.

(2) The Sentencing Hearing

On September 22, 2000, Favia was sentenced by Judge Nickerson in the United States District Court for the Eastern District of New York. The PSR prepared by the Probation Department calculated an adjusted offense level of 22 and a sentence range of 41 to 51 months. PSR ¶¶ 44-64.*fn3 Moore then requested a downward departure from the PSR's calculation based upon a number of factors relating to Favia's "background," including his psychological problems, family circumstances, minor role in the offense, aberrant behavior and pre-arrest rehabilitation. Transcript of Criminal Cause for Sentencing ("Sentencing Hr'g Tr.") at 12:25-14:24. Moore further requested that the court recommend Favia for the Shock Incarceration Program.*fn4 Sentencing Hr'g Tr. at 15:4-6. Favia also requested a downward departure as a result of his rehabilitative efforts on his own behalf. Sentencing Hr'g Tr. at 15:23-16:4. In response to these requests, Judge Nickerson initially reduced Favia's offense level from 22 to 20, and sentenced movant to 33 months incarceration, the statutory minimum for that offense level. Sentencing Hr'g Tr. at 16:9-12. In addition, Favia was sentenced to two years of supervised release, and ordered to pay a $100 special assessment and $5,776 in restitution. Sentencing Hr'g Tr. at 16:12-17:8.

After the initial downward departure from the PSR was granted, Moore again requested that the court recommend the Shock Incarceration Program for Favia. Sentencing Hr'g Tr. at 17:22-23. After the government informed Judge Nickerson that a sentence must be between 12 and 30 months*fn5 to meet the program's eligibility requirements,*fn6 Moore requested an additional departure in order to qualify movant for the Shock Incarceration Program. Sentencing Hr'g Tr. at 19:6-10. Judge Nickerson then further departed downward to a total offense level of 19 and imposed a sentence of 30 months so that Favia would satisfy the Shock Incarceration Program's sentence duration eligibility requirement. Sentencing Hr'g Tr. at 20:3-5. Judge Nickerson also stated he would recommend Favia for the Shock Incarceration Program, but emphasized that a recommendation was the most he could offer Favia. Sentencing Hr'g Tr. at 20:6-8. Upon arriving at his designated site of incarceration, Favia alleges that he was informed that the offense for which he was convicted rendered him "categorically excluded" from admittance into the Shock Incarceration Program. Movant's Brief ("Mov.'s Br.") at i.*fn7

(3) The § 2255 Motion

On September 25, 2001, Favia filed a pro se habeas corpus motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence of 30 months incarceration. Mot. to Vacate, Set Aside, or Correct Sentence at 2. Favia has not previously appealed or otherwise challenged his sentence. Mot. To Vacate, Set Aside, or Correct Sentence at 2.

Specifically, in his § 2255 motion, Favia claims he received ineffective assistance of counsel at his sentencing hearing based upon three grounds: 1) because Moore failed to seek a downward departure based upon his pre-arrest rehabilitation, Mov.'s Br. At 5; 2) because Moore failed to seek a downward departure based upon his aberrant behavior, Mov.'s Br. at 6; and 3) because Moore failed to inform Favia that he would not qualify for the Shock Incarceration Program, Mov.'s Br. at 4. The actual language of Favia's § 2255 motion states that "[d]efense [c]counsel persuaded [movant] that acceptance of shock incarceration would be his best approach to shortening his sentence. He failed to [move] for an extraordinary rehabilitation/combination of factors departure. His client was legally ineligible for shock incarceration." Mot. to Vacate, Set Aside, or Correct Sentence at 5.

Discussion

(1) Favia Waived His Right to Appeal

Although Favia's § 2255 motion is timely,*fn8 Favia is barred from challenging his sentence by the appeal waiver provision in the Plea Agreement. The established rule in the Second Circuit is that "there is no general bar to a waiver of collateral attack rights in a plea agreement." Zhang v. United States, 401 F. Supp. 2d 233, 238 (E.D.N.Y. 2005) (quoting Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002)). However, there are exceptions - notably, an appeal waiver will not be enforced where the challenge is directed at "the validity of the process by which the waiver has been procured." Felix v. United States, No. 05-CV-3925, 2005 WL 2088400, at *2 (S.D.N.Y. Aug. 29, 2005) (quoting Frederick, 308 F.3d at 195). In the present case, Favia's § 2255 motion alleging ineffective assistance of counsel does not challenge the formation of the Plea Agreement itself or the waiver provision contained in it. See Mov.'s Br. at i ("The petitioner does not challenge his conviction in this case."). Instead, his motion is limited to challenging the sentence he received, which is entirely separate from his decision to enter a guilty plea and from the terms of his Plea Agreement.

Generally, a defendant who, in a plea agreement, waives his right to appeal a sentence falling within the stipulated Sentencing Guidelines range is barred from appealing that sentence - either by direct appeal, or, collaterally, through a § 2255 motion. See Flores v. United States, No. 04-CV-9937, 2007 WL 766308, at *2 (S.D.N.Y. Mar. 14, 2007) ("A defendant's waiver of the right to collaterally attack his sentence under 28 U.S.C. § 2255 is generally enforceable as long as the record contains sufficient evidence to establish that the defendant knowingly and voluntarily waived these rights."); see also United States v. Monzon, 359 F.3d 110, 116 (2d Cir. 2004) (an appeal waiver provision will be enforced only if "the record 'clearly demonstrates' that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary.") (quotation marks and citation omitted); United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000) (the Second Circuit "has repeatedly upheld the validity of such waivers, with the obvious caveat that such waivers must always be knowingly, voluntarily, and competently provided by the defendant"). This rule holds true even where the movant alleges that his counsel rendered ineffective assistance at sentencing. See Panah v. United States, No. 05-CV-337S, 2006 WL 2056728, at *4 (W.D.N.Y. Jul. 21, 2006) ("In the context of a [§ 2255] challenge to a sentence, a waiver agreement is fully enforceable even where ineffective assistance of counsel is claimed."); see also United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993) (per curiam) (dismissing an appeal of a sentence falling within the range specified by ...


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