The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Hector Gabriel Perez-Gallegos ("petitioner" or "defendant"), a prisoner serving a sentence of 77 months' imprisonment following his plea of guilty to a charge of illegally re-entering the United States without permission after having been deported after conviction of an aggravated felony, 8 U.S.C. § 1326, brings this motion to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing that he received ineffective assistance of counsel at the time of his plea and sentencing. The motion is without merit and will be denied.
To demonstrate ineffective assistance of counsel, a petitioner must show both (1) that his attorney's representation fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) that he was prejudiced by his attorney's defective performance. Strickland v. Washington, 466 U.S. 668, 687-88, 693-94 (1984). None of Perez-Gallegos's various claims meets this standard.
I. Ineffective Assistance
Perez-Gallegos somewhat diffidently argues that he "could pursue a claim that his plea was not made knowingly, voluntarily and intelligently," because he "might argue that counsel failed to fully explain the consequences of the plea agreement." (Pet. Mem. 9.) The transcript of the plea proceeding completely rebuts any claim that Perez-Gallegos did not plead knowingly and intelligently. Even before the proceeding began, Perez-Gallegos read and signed an advice of rights form detailing the rights that he would waive by pleading guilty. (Plea Tr. 2, 6.) Notwithstanding this written advice, the Court orally addressed the defendant, and fully described all the rights specified by Fed. R. Crim. P. 11(b)(1), and Perez-Gallegos acknowledged that he understood them. (Id. 6-9.) The Court also fully described the nature and elements of the charge to which defendant was pleading (id. 9-10), and the penalties attached to the offense (id. 10-11). The Court also determined that there was a factual basis for the plea, by addressing the defendant, who admitted that he re-entered the United States without permission after having been deported following a criminal conviction for sale or possession of cocaine, and that he knew that he was not allowed to do so. (Id. 13-14.) The Court established that defendant waived any possible defense of lack of venue. (Id. 15-16.)*fn1
Nor is there any basis for petitioner's allegation that his attorney "failed to fully explain the consequences of the plea agreement." (Pet. Mem. 9.) As defense counsel points out, the simple fact is that there was no plea agreement. (Statsinger Decl. ¶ 4.) Indeed, contradicting his own contention, Perez-Gallegos himself admits that he pled guilty "without a plea agreement." (Pet. Mem. 3.) The plea transcript confirms not only the bare fact that there was no agreement (Plea Tr. 2), but also that the defendant fully understood the terms of his plea of guilty. Defense counsel stated, in defendant's presence, that there was no plea agreement in the case. (Id. 2.) Perez-Gallegos acknowledged that he had discussed the charges and the facts of the case with his attorney, that he had had adequate time to do so, and that his attorney had told him the consequences of pleading guilty. (Id. 5-6.) The Court specifically advised defendant of the maximum punishment that could be imposed, which included a prison term far in excess of the sentence Perez-Gallegos actually received. (Id. 10-11.) Moreover, the Court described the sentencing process, including the role of the Sentencing Guidelines (which defendant admitted his lawyer had discussed with him), and emphasized that the actual sentence would be based on the statutory purposes of sentencing and could be higher than the guidelines recommendation. (Id. 11-12.) The Court described the letter provided to the defendant by the Government pursuant to United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991), which contained the Government's estimate that the Guidelines would recommend a sentence between 46 and 57 months of imprisonment. The Court emphasized, however, that this estimate was just the prosecutor's present opinion. She could change her mind later, and it really doesn't matter what she thinks anyway because the sentence is up to me. And when I review the guidelines, based on the probation report and the lawyers' arguments, I might come to a different answer, or I might think the case requires a higher of lower sentence than the one provided by the guidelines.*fn2 The point is that that letter does not represent a guarantee or a promise that your sentence will be within that range. (Id. 12.) Defendant acknowledged that he understood. (Id.) Finally, defendant agreed that no one had promised or offered him anything to get him to plead guilty. (Id. 13.)
In the face of this record, any claim that Perez-Gallegos did not understand the terms of his guilty plea is absurd. The Court made painfully clear to defendant that no agreement or promise existed, and fully explained the meaning of the Pimentel letter, the absence of any promise with respect to the sentence to be expected, and the defendant's exposure to a sentence of up to 20 years' imprisonment. Defendant's own admission that his attorney had explained the consequences of his plea, and his failure to question or express surprise at any of the Court's warnings and admonitions, undermines any claim that his attorney had not explained these matters to him beforehand, but even if counsel had not done so, any error would be harmless, because the plea was not entered until the Court had fully advised defendant of the relevant terms of the plea.
II. Ineffective Assistance at Sentencing
Petitioner argues that his attorney was ineffective at sentencing in various ways. While not all of these claims are separately numbered or clearly distinguished, the Court will construe the pro se petition to raise every argument alluded to in the petition.
First, petitioner argues that his attorney was ineffective in failing to object to the Court's erroneous reference to an "apparent history of resisting arrest." (Sent. Tr. 13.) The statement was incorrect -- although defendant had a history of providing false names when arrested (PSR ¶¶ 23, 28), he had no history of resisting arrest -- and defense counsel clearly should have corrected the Court's mistaken recollection of defendant's criminal history. Petitioner cannot, however, demonstrate that he was prejudiced by this error, as the error was harmless. As the Court of Appeals noted in applying plain error analysis to reject defendant's challenge to his sentence on direct appeal, the sentence imposed was not affected by the Court's mistaken belief about defendant's criminal record:
The District Court imposed a sentence within the applicable Guidelines range based on its view that "there is a particular premium in adhering to the [Sentencing G]uideline recommendation" in illegal re-entry cases. Sentencing Tr. 12. The District Court viewed Perez-Gallegos's "significant criminal history" as a reason not to grant "any unusual leniency" to Perez-Gallegos, id. at 13, referencing Perez-Gallegos's "apparent history of resisting arrest when apprehended," id., only as an additional reason for declining to impose a below-Guidelines sentence. Perez-Gallegos thus cannot show that the District Court based its decision not to impose a below-Guidelines sentence on its mistaken view of Perez-Gallegos's criminal history United States v. Perez-Gallegos, 218 Fed. Appx. 37, 38 (2d Cir. 2007).
The full record of the sentencing makes clear that the error was harmless. The Court provided a detailed analysis of its reasons for imposing a guideline sentence in the case. The Court began by noting that the principal purpose of sentencing in illegal re-entry cases are punishment and deterrence, and that in the Court's view, those purposes are ones that are the "least individualized" of the purposes set out in the sentencing statute, purposes "in which the general perspective of the Sentencing Commission on what is necessary for deterrence and maintaining respect for law [tend to] outweigh the individualized aspects of the case." (Sent. Tr. 12.) Similarly, the Court noted that because the facts of such cases tend to be "fairly standard," the additional statutory factor of "the need to treat similarly-situated persons similarly . . . further supports the imposition of the guideline sentence." (Id.) The Court then noted that the defendant's "significant criminal history" provided an "additional argument[ ] against any unusual leniency." (Id. 13.) It was in this context that the Court made the erroneous remark about resisting arrest.
After discussing and rejecting a number of arguments made by the defense in mitigation (id. 13-15), the Court returned to the subject of defendant's criminal record, noting that the fact that Perez-Gallegos had avoided further legal troubles in recent years was already taken into account in the computation of the criminal history score, and that the defendant's record "does reflect a serious risk of recidivism and a serious criminal history." (Id. 15.) The Court had already explained its reasoning in finding that the criminal history category determined by the Sentencing Guidelines was appropriate, "so that any reviewing court can have the benefit of my ...