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Oliver v. United States

January 22, 2008


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


Luis Bonilla Oliver brings this timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. He seeks to vacate, set aside, or correct his sentence on a drug charge following the entry of a plea of guilty in 2005. Bonilla Oliver asserts that he was provided with constitutionally ineffective counsel both at his plea and on appeal. For the following reasons, the petition is denied.


Bonilla Oliver does not dispute the facts concerning his criminal conduct. On February 3, 2005, law enforcement officers investigated a package at a Federal Express facility in Memphis, Tennessee, and determined that the package contained heroin. The package had been sent from Lima, Peru and was destined for Dignora Morales, 660 East 188th Street, Bronx, New York ("660 East 188th Street"). On February 7, law enforcement officers removed more than one kilogram of heroin from the package. Pursuant to a court order, the officers fitted the empty package with a tracking device. On February 8, 2005, an undercover law enforcement officer posing as a Federal Express deliveryman delivered the package to 660 East 188th Street, where a woman signed for and accepted the package.

Later that day, agents observed a person later identified as Frank Ventura-Salazar exit a vehicle that had been circling the block and enter 660 East 188th Street. Shortly thereafter, the door to the building opened, and a law enforcement agent observed a person later identified as Bonilla Oliver hand Ventura-Salazar a black plastic bag. The tracking device previously inserted into the package was triggered, indicating that the package was being moved. The agents then observed Ventura-Salazar place the bag in the trunk of a cab and enter the cab. Law enforcement officers followed the cab, as well as a vehicle trailing it, which was being driven by a person later identified as Francis Contreras. Later that day, Ventura-Salazar, Contreras, and Bonilla Oliver were arrested.

After being taken into custody, Bonilla Oliver was read, and waived, his Miranda rights. He admitted that he had given Ventura-Salazar his address to use for delivery of a package; that Bonilla Oliver believed the package would contain narcotics, but that he did not know which type; and that on February 8, 2005, Ventura-Salazar called to ask whether the package had arrived and Bonilla Oliver had replied yes.

On June 9, 2005, Ventura-Salazar, Contreras, and Bonilla Oliver were charged in a one-count Indictment, 05 Cr. 623 (DLC), with participating in a conspiracy to distribute, and possess with intent to distribute, one kilogram or more of heroin, in violation of 21 U.S.C. § 846. A one-count Superseding Information, S1 05 Cr. 623 (DLC) (the "Information"), was filed as to Bonilla Oliver alone on October 27, 2005, charging him with managing and controlling a place, as a lessee and occupant, and knowingly and intentionally making it available for use for the purpose of unlawfully manufacturing, storing, distributing, and using a controlled substance, in violation of 21 U.S.C. § 856. On that date, Bonilla Oliver, represented by appointed counsel Jonathan Marks, pleaded guilty to Count One of the Information before Magistrate Judge Frank Maas, pursuant to a plea agreement with the Government in which Bonilla Oliver agreed, inter alia, that he would not appeal a sentence within or below the range of 121 or 151 months' imprisonment, nor litigate, under 28 U.S.C. §§ 2255 and/or 2241, any sentence within or below the stipulated guidelines range of 121 or 151 months. The Government agreed to dismiss any open counts, including the conspiracy count charged in the underlying Indictment, which carried a ten-year mandatory minimum sentence. See 21 U.S.C. §§ 841(b)(1)(A) and 846.

Magistrate Judge Maas determined that Bonilla Oliver was competent to enter a plea, and that he understood the nature of the charges against him as well as the rights he was giving up by entering a guilty plea. Magistrate Judge Maas also determined that there was a factual basis for the plea. Magistrate Judge Maas recommended that the Court accept Bonilla Oliver's plea. The Court accepted the plea on November 3. On January 27, 2006, the Court sentenced Bonilla Oliver to 121 months' imprisonment, three years' supervised release, and a mandatory $100 special assessment.

On February 6, 2006, Bonilla Oliver's trial counsel filed a notice of appeal. Sometime thereafter, Bonilla Oliver acquired new counsel and was represented on appeal by Laurie S. Hershey. On June 7, Hershey filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), affirming that there were no non-frivolous issues that could be raised by Bonilla Oliver on appeal. Bonilla Oliver filed a brief in opposition to counsel's Anders brief on October 18, making substantially the same arguments he now pursues in his habeas petition. The Government filed a motion to dismiss the appeal based on Bonilla Oliver's knowing and voluntary waiver of his right to appeal, or, in the alternative, for summary affirmance on the ground that there were no non-frivolous issues for appeal. On or about December 12, 2006, the United States Court of Appeals for the Second Circuit summarily affirmed Bonilla Oliver's conviction and sentence.

Bonilla Oliver filed the instant habeas petition on May 25, 2007, claiming that he is entitled to relief because he received constitutionally ineffective counsel both at plea and sentencing and on appeal. As to his trial counsel, Bonilla Oliver claims that Marks was ineffective for (1) "failing to properly investigate and research the law and guidelines" applicable to the charge in the Indictment; (2) failing to request a psychiatric evaluation prior to his pleading guilty; (3) failing to object to the court's allegedly improper explanation of the charge against him, to the criminal history calculation made in the presentence report (PSR), and to alleged violations of the Speedy Trial Act. As to his appellate counsel, Bonilla Oliver argues that Hershey was ineffective for (1) filing an Anders brief supporting the waiver of appeal contained in the plea agreement because the Court allegedly reinstated the right to appeal at sentencing; (2) ignoring Bonilla Oliver's efforts to assist in his appeal; and (3) failing to inform Bonilla Oliver of his right to petition the United States Supreme Court for a writ of certiorari within ninety days. Bonilla Oliver's petition was fully submitted on December 14, 2007.


"[I]n order to prevail on an ineffective assistance of counsel claim, a defendant must show (1) that his attorney's performance fell below an objective standard of reasonableness, and (2) that as a result he suffered prejudice." United States v. Jones, 482 F .3d 60, 76 (2d Cir. 2006), cert. denied, 127 S.Ct. 1306 (Feb. 20, 2007) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The performance inquiry examines the reasonableness of counsel's actions under "all the circumstances," Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (citing Strickland, 466 U.S. at 688), and from the perspective of counsel at the time, id. (citing Rompilla v. Beard, 545 U.S. 374, 389 (2005); Strickland, 466 U.S. at 689). Counsel is "strongly presumed" to have exercised reasonable judgment in all significant decisions. Id. (citing Strickland, 466 U.S. at 690). As to prejudice, the defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006) (citing Strickland, 466 U.S. at 688, 694). The petitioner bears the burden of establishing both deficient performance and prejudice. See Greiner, 417 F.3d at 319.

To be valid, a guilty plea must represent a "voluntary and intelligent choice among the alternative courses of action open to the defendant." Wilson v. McGinnis, 413 F.3d 196, 198-99 (2d Cir. 2005) (citation omitted). "Ineffective assistance of counsel may render a guilty plea involuntary, and hence invalid." United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2002) (citation omitted). A defendant's claim that his guilty plea is involuntary or unknowing as a result of ineffective assistance of counsel is evaluated according to the same Strickland standard discussed above. Id.

First, a defendant must establish that his "counsel's representation fell below an objective standard of reasonableness." Hill v. Lockhart, 474 U.S. 52, 57 (1985) (citation omitted); United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001) (per curiam). As noted above, a defendant who enters a plea on the advice of counsel must therefore demonstrate that counsel's advice was outside "the range of competence demanded of attorneys in criminal cases." Hill, 474 U.S. at 56 (citation omitted). In the context of a guilty plea, a defendant must show that counsel's "deficient performance undermines the voluntary and intelligent nature of the defendant's decision to plead guilty." United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005). Second, a defendant must show prejudice, that is, "that there is a reasonable probability that, but ...

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