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United States v. Figueroa-Molineros

August 9, 2011

UNITED STATES OF AMERICA
v.
VICTOR FIGUEROA-MOLINEROS, DEFENDANT.



The opinion of the court was delivered by: Chin, Circuit Judge

MEMORANDUM DECISION

On October 14, 2005, defendant Victor Figueroa-Molineros*fn1 pled guilty to conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. On February 16, 2006, FigueroaMolineros was sentenced principally to a term of imprisonment of 168 months.*fn2 Figueroa-Molineros now moves pro se pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the grounds that he was denied effective assistance of counsel. Specifically, he contends that his counsel rendered ineffective assistance by failing to argue that this Court did not have jurisdiction over the underlying case. For the reasons set forth below, the motion is denied.*fn3

BACKGROUND

A. The Facts

In 1999 and 2000, Figueroa-Molineros conspired with others to distribute more than five kilograms of cocaine. (PSR ¶¶ 19-20; Plea Tr. 12). In 1999, he arranged for a co-conspirator to pick up approximately 100 kilograms of cocaine in New York, New York. (PSR ¶ 19). In July 2000, defendant met with co-conspirators in New York, New York to discuss the distribution of approximately 100 kilograms of cocaine. (Id. ¶ 20; Plea Tr. 12).*fn4 A few months later, he spoke with a confidential source, who was working with the FBI, regarding the details of the distribution. (PSR ¶ 21).

B. Prior Proceedings

On February 17, 2004, Figueroa-Molineros was indicted on two counts: (1) conspiracy to import cocaine into the United States, in violation of 21 U.S.C. §§ 952(a) and 960(b)(1)(B); and (2) conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846.*fn5 On March 14, 2004, he was writted to the Southern District of New York from the Southern District of Florida, where he was serving a sentence for illegal re-entry. (PSR ¶¶ 23, 41).

On October 14, 2005, Figueroa-Molineros pled guilty to Count 2 of the indictment, pursuant to a plea agreement with the government. At the plea hearing, defendant admitted that he distributed between 50 and 150 kilograms of cocaine. (Plea Tr. 13). By the terms of the plea agreement, Figueroa-Molineros agreed to waive his right to appeal or otherwise challenge a sentence within or below the stipulated guidelines range (168 to 210 months). (Plea Agmt. 5; Plea Tr. 10).

Figueroa-Molineros was originally sentenced on February 16, 2006 to 168 months in prison. On October 15, 2007, he moved to reduce the sentence to 161 months to account for credit he was supposed to have received for his seven-month detention at the Metropolitan Correctional Center prior to sentencing. I construed this as a motion pursuant to 28 U.S.C. § 2255 and granted the requested relief. (Order, 01 Cr. 1001 (DC) (S.D.N.Y. Oct. 15, 2007)).

On March 22, 2011, Figueroa-Molineros filed the instant motion.*fn6 He argues that his counsel "fail[ed] to demand an immediate dismissal of the instant criminal case, with prejudice, for lack of any criminal jurisdiction." (Def.'s Supp. Mem. 1). Although the one-year statute of limitations prescribed by 28 U.S.C. § 2255 has expired, he argues that the motion is timely in light of Padilla v. Kentucky, 130 S. Ct. 1473 (2010). (Def.'s Mem. 13).

DISCUSSION

A. Ineffective Assistance of Counsel

1. Applicable Law

To demonstrate ineffective assistance of counsel, the defendant must satisfy the two-prong test established in Strickland v. Washington. See 466 U.S. 668, 687 (1984). He must first demonstrate that his counsel's representation "fell below an objective standard of reasonableness" under prevailing professional norms. Id. at 688. In evaluating counsel's performance, there is a "strong presumption ...


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