The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
Petitioner Erick Nolasco has several motions pending before the court. Nolasco moves (1) for a departure from the sentencing guidelines, (2) for an order compelling his appellate counsel to release all records in her possession relating to his appeal, (3) for a modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2), and (4) for a writ of habeas corpus under 28 U.S.C. § 2255. For the reasons stated below, Nolasco's motions are denied.
On March 4, 2004, Erick Nolasco pled guilty to one count of participating in a conspiracy to distribute narcotics in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846, and one count of using and carrying a firearm in furtherance of the charged narcotics conspiracy in violation of 18 U.S.C. § 924(c)(1)(A)(i). Under the terms of the plea agreement, Nolasco stipulated that he would not appeal a sentence within or below the stipulated sentencing range of 195 to 228 months' imprisonment.
On December 6, 2004, Nolasco moved to withdraw his guilty plea, claiming he was innocent of the charges in the indictment and pled guilty only because his attorney promised him that he would receive a five-year sentence. The court held a hearing on the motion on April 7, 2005, and took testimony from Nolasco and Adam Perlmutter, the attorney who represented Nolasco during plea negotiations. The court denied the motion, holding that Nolasco's assertions of innocence were not credible and his plea was knowing and voluntary.
On August 17, 2005, the court sentenced Defendant to 168 months on the first count and 60 months on the second count, consecutively, for a total of 228 months.
On September 16, 2005, Defendant appealed, arguing that (1) his indictment was invalid because it was not presented in open court, (2) he received ineffective assistance of counsel because he was not advised of the immigration consequences of his guilty plea, and (3) he did not knowingly and intelligently waive his right to counsel at his sentencing. Nolasco's attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there were no non-frivolous issues that could be raised on appeal with respect to the validity of his guilty plea or his sentence. The government concurred and filed a motion for (1) dismissal of the appeal based on Defendant's waiver or (2) summary affirmance based on the fact that Defendant could not raise any non-frivolous issues on appeal. The Court of Appeals granted both motions on May 7, 2007.
On September 21, 2005, while Nolasco's appeal was pending, he filed a motion for a downward departure based on alleged inhumane and unconstitutional conditions of his pre-sentence confinement.
On December 12, 2007, after his appeal had been dismissed, Nolasco filed a motion to compel his appellate counsel to release and provide him with all documents related to his appeal.
On February 27, 2008, Nolasco petitioned for a writ habeas corpus pursuant to 28 U.S.C. § 2255, arguing that the government and his defense attorney coerced his plea and withheld exculpatory evidence.
On March 7, 2010, Nolasco moved for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 599 to the United States Sentencing Guidelines ("U.S.S.G." or "the Guidelines"), which altered U.S.S.G. § 2K2.4, the Guideline applicable to use of a firearm, armor-piercing ammunition or explosive during the commission of certain other crimes. Amendment 599 provides, in relevant part, that "[i]f a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense," the court should not "apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the underlying offense."
a. Motion for Downward Departure
Nolasco's motion for a downward departure based on the allegedly unconstitutional conditions of his pre-sentencing confinement, which he filed while his appeal was pending, is denied. "It is well settled that the filing of a timely and effective notice of appeal from a final judgment divests the court of jurisdiction to amend or otherwise ...