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Giraldo-Perez v. United States

May 28, 2009


The opinion of the court was delivered by: John G. Koeltl, District Judge


The petitioner, Juan Carlos Giraldo-Perez (the "petitioner"), appearing pro se, moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He was convicted pursuant to his plea of guilty to one count of conspiracy to import more than one kilogram of heroin into the United States, in violation of 21 U.S.C. § 963. The petitioner claims that he received ineffective assistance of counsel and that his guilty plea was not knowing and voluntary. For the reasons stated below, the petition is denied.


On June 9, 2006, the petitioner pleaded guilty pursuant to a plea agreement (the "Plea Agreement") to one count of conspiracy to import one kilogram or more of heroin into the United States, in violation of 21 U.S.C. § 963. (Plea Tr. 13-14, June 9, 2006; Plea Agreement 1, June 7, 2009.) At the time of the plea, the petitioner was serving a sixteen year sentence in Colombia arising out of the same underlying conduct.*fn1 (Sent. Tr. 3, July 27, 2007.) At the hearing on petitioner's guilty plea, Chief Judge Mukasey explained that the maximum sentence was life imprisonment and the mandatory minimum sentence was ten years' imprisonment. (Plea Tr. 9.) Chief Judge Mukasey also explained that the petitioner faced certain deportation to Colombia at the end of his sentence in the United States and that there was no guarantee that the Colombian courts would give him any credit toward his Colombian sentence for time served in the United States. (Plea Tr. 10-11.) Chief Judge Mukasey explained that by the terms of the Plea Agreement, the petitioner was giving up his right to appeal or file a habeas corpus petition provided that he was sentenced within the sentencing guidelines range of 151 to 188 months. (Plea Tr. 16.) The petitioner, represented at the time by Henry Edward Mazurek, Esq., swore that he understood the terms of the Plea Agreement, including those described above, and that he signed the Agreement knowingly and voluntarily. (Plea Tr. 9, 11, 13-14, 16.) The petitioner also swore that no one had threatened him or forced him to plead guilty. (Plea Tr. 13.)

On July 27, 2007, the petitioner appeared before this Court for sentencing represented by a new attorney.*fn2 The presentence report indicated that the petitioner's total offense level was 33, his Criminal History Category was II, and the guidelines sentencing range was 151-188 months. (Sent. Tr. 14.) The petitioner requested that the Court not consider his pre-1997 criminal conviction by a United States court in calculating his Criminal History Category because of an extradition treaty between the United States and Colombia. (Sent. Tr. 11.) The Government argued, and the petitioner's attorney conceded, however, that the pre-1997 conviction was properly considered by the Court in calculating the petitioner's Criminal History Category. (Sent. Tr. 12-13.) The Court adopted the presentence report and, taking into account the Colombian prison sentence and the fact that the petitioner spent one year of confinement in Colombia in harsh conditions, sentenced the petitioner to the statutory mandatory minimum of 120 months to be followed by a five-year term of supervised release, and a $100 special assessment. (Sent. Tr. 14-17.)

Notwithstanding the waiver contained in the Plea Agreement, the petitioner filed, pro se, a timely notice of appeal. The Court of Appeals granted the Government's motion for summary affirmance. The petitioner subsequently filed a timely § 2255 petition seeking to vacate, set aside or correct his sentence, which was received by the Court's Pro Se Office on August 8, 2008. The petitioner asserts that he received ineffective assistance of counsel because counsel failed to advise him of his alleged Fifth Amendment right not to be convicted in the United States for the same conduct that was the basis for the conviction in Colombia. The petitioner also asserts that his guilty plea was not knowing and voluntary because the Court failed to determine whether he understood his rights and that his sentence was improperly enhanced on the basis of his conviction in Colombia. The Court will address each of the petitioner's arguments in turn.


The Government argues at the outset that the petitioner's guilty plea and Plea Agreement prohibit this Court from reaching the merits of a challenge to the petitioner's sentence. See Parisi v. United States, 529 F.3d 134, 138 (2d Cir. 2008). The Court of Appeals for the Second Circuit has explained that [i]n no circumstance . . . may a defendant, 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 a remedy would render the plea bargaining process and the resulting agreement meaningless.

United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993) (per curiam); see also United States v. Djelevic, 161 F.3d 104, 106-07 (2d Cir. 1998) (per curiam); Czernicki v. United States, 270 F. Supp. 2d 391, 393 (S.D.N.Y. 2003); Henriquez v. United States, No. 03 Civ. 478, 2003 WL 21242722, at *1 (S.D.N.Y. May 29, 2003). The waiver, however, does not prevent a defendant from "seek[ing] relief from the underlying plea where the plea was not knowing and voluntary." United States v. Haynes, 412 F.3d 37, 39 (2d Cir. 2005) (per curiam); see also Almonte v. United States, Nos. 06 Cr. 460, 08 Civ. 1192, 2008 WL 2755818, at *2 (S.D.N.Y. July 14, 2008). Moreover, the appeal waiver would not bar a claim of ineffective assistance of counsel directed at agreeing to the plea agreement itself. "To raise a claim despite a guilty plea or appeal waiver, the petitioner must show that the plea agreement was not knowing and voluntary . . . because the advice he received from counsel was not within acceptable standards." Parisi, 529 F.3d at 138 (internal citations and quotation marks omitted). As the Parisi court explained:

An ineffective assistance of counsel claim survives the guilty plea or the appeal waiver only where the claim concerns the advice the defendant received from counsel. Thus, although challenging the attorney's role in shaping the defendant's bargaining position cannot avoid the waiver, challenging the attorney's advice about that bargaining position, by connecting the knowing and voluntary nature of the defendant's plea decision with the attorney's conduct, does.

Id. at 138-39 (internal quotations, citations, and alterations omitted) (emphasis in original).

In Parisi, the court construed the pro se petitioner's submissions "as raising the claim that his attorney was ineffective in advising him to accept the plea agreement rather than advising him to move to dismiss the indictment with prejudice based on alleged Speedy Trial Act violations." Id. at 139. The Parisi court held that "[t]his claim survives the appeal waiver because, by focusing on the advice [the petitioner] received from his attorney, it connects the alleged ineffectiveness of [his] attorney with the voluntary nature of his plea." Id.

In this case, the petitioner's allegations can similarly be read to survive the waiver provision, by focusing on the alleged failure of the petitioner's attorney to advise him of his Fifth Amendment right not to be prosecuted twice for the same conduct. See also Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195-96 (2d Cir. 2002) (allowing defendant to bring claim for ineffective assistance of counsel despite guilty plea and plea agreement because he "contest[ed] the constitutionality of the process by which [his] claim of a defective plea agreement was twice denied"); United States v. Hansel, 70 F.3d 6, 8 (2d Cir. 1995) (per curiam) (allowing defendant to raise statute of limitations defense on appeal despite guilty plea because ...

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