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Josue Flores Carreto v. United States of America

October 18, 2011


The opinion of the court was delivered by: Block, Senior District Judge:

Josue Flores Carreto, proceeding pro se, moves to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 on the grounds that he received ineffective assistance of counsel and the prosecutor failed to disclose material evidence pursuant to Brady v. Maryland, 272 U.S. 83 (1963).*fn1 For the reasons that follow, the motion is denied.


From 1991 until his arrest in 2004, Carreto and several members of his extended family smuggled young Mexican women into the United States, abused them and forced them into prostitution. As a result of this conduct, Carreto was charged in a 27-count indictment with one count of conspiracy to engage in sex trafficking, 18 U.S.C. § 371; four counts of sex trafficking, 18 U.S.C. § 1591(a)(1), (2); one count of attempted sex trafficking, 18 U.S.C. § 1594(a); four counts of forced labor, 18 U.S.C. § 1589(1), (2); four counts of transportation of individuals for the purpose of prostitution, 18 U.S.C. § 2421; one count of conspiracy to import aliens for immoral purposes, 18 U.S.C. § 371; four counts of importation of aliens for immoral purposes, 8 U.S.C. § 1328; four counts of alien smuggling, 8 U.S.C. § 1324(a)(1)(A), (B); and four counts of alien smuggling for commercial advantage or financial gain, 8 U.S.C. § 1324(a)(2)(B).

Carreto and his two co-defendants rejected the government's global plea offer, which was then withdrawn. Nevertheless, the defendants subsequently decided to plead guilty to the entire indictment. The Court stressed that it would not give defendants "any promises or guarantees" regarding their sentences, which "might well be more strict than they hope." Transcript of 4/5/2005 ("Plea Tr.") at 10. Carreto's counsel, Telesforo Del Valle, Jr., stated that he had explained to Carreto that "the final sentence rests on [the Court]." Plea Tr. at 11. During the ensuing plea colloquy, Carreto confirmed that he had gone through the indictment with his attorney in his native language of Spanish and understood the charges against him. He responded affirmatively when the Court asked whether he was "satisfied with Mr. Del Valle's representation." Plea Tr. at 31. The Court carefully reviewed the potential sentencing consequences of a guilty plea, emphasizing that no sentence had been agreed upon, and reminded Carreto that he would "not be able to withdraw [the] guilty plea" after he gave it. Plea Tr. at 64, 67. Following Carreto's allocution, the Court accepted his guilty plea to all 27 counts in the indictment.

Carreto retained new counsel, Roy Raymond John Kulcsar, for sentencing. On April 24, 2006, Carreto moved pro se to withdraw his guilty plea. On April 27, 2006, counsel informed the Court that the defendants had collectively hired a private investigator, William Acosta, who had obtained transcripts from a Mexican legal proceeding purportedly containing statements by the victims contradicting their statements to the government in this case. The Court denied defense counsel's request to adjourn the sentencing, and also denied the defendants' individual motions to withdraw their pleas. It sentenced Carreto to 50 years' incarceration and five years' supervised release.

The Second Circuit affirmed the denial of Carreto's motion to withdraw his plea, finding that it was "taken knowingly and voluntarily," that the exculpatory evidence from Mexico "did not alter the fact that defendants had knowingly and voluntarily pled guilty," and that any ineffective assistance of counsel claims could more appropriately be raised in a 28 U.S.C. § 2255 petition. See United States v. Carreto, 583 F.3d 152, 157-158 (2d Cir. 2009).*fn2 The United States Supreme Court denied Carreto's petition for a writ of certiorari. See Carreto v. United States, 130 S. Ct. 813, 813 (2009).

On December 6, 2010, Carreto timely filed this § 2255 motion.*fn3


A. Ineffective Assistance of Counsel

Carreto claims that his attorneys were ineffective because they (1) failed to adequately investigate the case; (2) failed to provide him with translations of court documents; (3) failed to inform him of his consular notification rights; and (4) provided generally deficient representation.

To prevail on his ineffective assistance of counsel claim, Carreto must show that: (1) his attorneys' performance fell below "an objective standard of reasonableness" as defined by "prevailing professional norms," and (2) he was prejudiced by this failure. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see also Hill v. Lockhard, 474 U.S. 52, 57-58 (1985) (holding that the Strickland standard applies to ineffective assistance claims arising out of a guilty plea). There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," and representation is evaluated from "counsel's perspective at the time." Strickland, 466 U.S. at 689. Prejudice requires "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.In the plea context, this means "a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59.

Several of Carreto's arguments are framed as ineffective assistance of counsel but are in reality challenges to the voluntary nature of his plea. The Second Circuit has already determined that Carreto's plea was "taken knowingly and voluntarily" and that this Court did not err in denying his motion to withdraw it.

Carreto, 583 F.3d at 157-58. Thus, only challenges based on counsel's ...

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