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Sakora Varone, Pro Se v. United States

January 26, 2012

SAKORA VARONE, PRO SE, PETITIONER,
v.
UNITED STATES, RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:

MEMORANDUM AND ORDER

Pro se*fn1 petitioner Sakora Varone ("Petitioner") timely filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 ("Section 2255"), challenging her conviction for knowingly and intentionally conspiring to distribute and possess with intent to distribute one or more controlled substances in violation of 21 U.S.C. §§ 841(a)(1). (See generally Docket 09-CV-5703, Entry No. 1 ("Petition").) On February 18, 2009, Petitioner was sentenced to 135 months of imprisonment followed by five years of supervised release. (Docket 09-CV-5703, Entry No. 4, Ex. C, February 18, 2009 Sentencing Transcript ("Sentencing Tr.") at 39.) On March 5, 2009, Petitioner filed a notice of appeal with the Second Circuit Court of Appeals ("Second Circuit"), which was dismissed by order dated February 8, 2010. (See Second Circuit Docket 09-CR-912.) In the instant petition, Petitioner contends that she received ineffective assistance of counsel, and, as a result: (i) her Sixth Amendment rights were violated; (ii) she unknowingly, involuntarily or unintelligently pled guilty; and (iii) she was denied her right to appeal her conviction and sentence. (Petition at ¶ 12.) The Government opposed. For the reasons set forth below, the petition for writ of habeas corpus is denied in its entirety.

BACKGROUND

On April 16, 2008, under oath and represented by counsel, Petitioner pled guilty pursuant to a written plea agreement to Count One of the superseding indictment, which charged that defendant knowingly and intentionally conspired with others to distribute and possess with intent to distribute fifty grams or more of base cocaine ("crack") and five kilograms or more of powder cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846. (See Docket 09-CV-5703, Entry No. 4, Ex. B ("Plea Agreement") at ¶¶ 1-2; id.,Ex. A, April 16, 2008 Guilty Plea Transcript ("Guilty Plea Tr.") at 2-3, 8-9, 14-15, 28-29.) This charge carries a mandatory minimum ten-year prison sentence and a maximum of life. (See Guilty Plea Tr. at 16; Plea Agreement at ¶ 1.) The written plea agreement Petitioner entered into on April 16, 2008 states, inter alia, that, as long as Petitioner had no prior convictions, the likely adjusted offense level under the United States Sentencing Guidelines ("U.S.S.G.") would be 34, which carries a range of imprisonment of 151-181 months, and, if Petitioner pled guilty on or before April 16, 2008, the government would move for a reduction of one point, resulting in an offense level of 33, which carries a range of imprisonment of 135-168 months. (Plea Agreement at ¶ 2.) The Plea Agreement also explicitly states that the guidelines estimate is not binding on the government, Probation Department or the court, and, if the court were to impose a term of imprisonment of 181 months or less, then Petitioner waived her right to appeal or collaterally attack the sentence pursuant to Section 2255 or any other provision of law. (Id. at ¶¶ 3, 4.)

On December 28, 2009, Petitioner filed the instant petition for a writ of habeascorpus pursuant to Section 2255. Petitioner claims her Sixth Amendment right to effective assistance of counsel was violated because her attorney improperly: (i) advised Petitioner that there would be a two-point reduction in her U.S.S.G. range due to the amended crack law*fn2 ; (ii) assured Petitioner that she would be sentenced to 60 months of imprisonment at most; (iii) failed to submit the motions requested by Petitioner;*fn3 (iv) had Petitioner lie to the government to qualify for application of the safety valve; (v) failed to present Petitioner with sufficient time to review both the Plea Agreement and counsel's promise that Petitioner would receive far less time than the amount indicated in the Plea Agreement, and, thus, Petitioner's guilty plea was not knowing, voluntary or intelligently made; and (vi) advised Petitioner that she did not give up all of her rights to appeal even though, by signing the Plea Agreement, Petitioner did agree to give up those rights if the sentence imposed was 181 months or below. (Petition at ¶ 12.)

DISCUSSION

I.Petitioner Waived Her Right to Seek Habeas Relief

In general, the Second Circuit rejects attempts to challenge a conviction where a petitioner waived that right pursuant to a written plea agreement. See Garcia-Santos v. United States, 273 F. 3d 506, 508-09 (2d Cir. 2001) (per curiam); United States v. Pipitone, 67 F. 3d 34, 39 (2d Cir. 1995). Courts have also enforced such waivers when a petitioner agrees, pursuant to a written plea agreement, not to challenge a sentence within a stipulated U.S.S.G. range. See Garcia-Santos, 273 F. 3d at 507-09 (holding a petitioner's waiver of appeal and collateral attack binding in a Section 2255 proceeding where the imprisonment term was within the stipulated guideline range); Pipitone, 67 F. 3d at 39 (holding a petitioner's "explicit undertaking in the [Plea] Agreement not to appeal a sentence that fell within [the] guideline range," within which he was ultimately sentenced, precluded him from both directly appealing or collaterally challenging his sentence).

Here, the record is clear that Petitioner signed the written Plea Agreement, and knowingly and voluntarily waived her right to seek habeas relief. (See Guilty Plea Tr. at 2-3, 8-9, 14-15, 26, 29-30.) By entering into the Plea Agreement, Petitioner explicitly agreed to "not file an appeal or otherwise challenge, by petition pursuant to [Section] 2255 or any other provision, the conviction or sentence in the event that the Court imposes a term of imprisonment of 181 months or below." (Plea Agreement at ¶ 4.) Notably, Petitioner stated to the court, under oath, that she understood that agreement. (Guilty Plea Tr. at 13.) As Petitioner ultimately received a sentence of 135 months of imprisonment, which was below the waiver of appeal threshold stipulated in her Plea Agreement, Petitioner waived her right to challenge her conviction and sentence.*fn4

II.Petitioner's Claim of Ineffective Assistance of Counsel is Without Merit

Petitioner seeks to circumvent the waiver of her right to appeal by raising claims of ineffective assistance of counsel. The Second Circuit has held that "a plea agreement containing a waiver of the right to appeal is not enforceable where the defendant claims that the plea agreement was entered into without effective assistance of counsel." United States v. Hernandez, 242 F. 3d 110, 113-14 (2d Cir. 2001) (citing United States v. Djelevic, 161 F. 3d 104, 107 (2d Cir. 1998)). Therefore, a waiver is not enforceable if a defendant can demonstrate that she unknowingly or involuntarily agreed to the plea directly due to the ineffective assistance of her counsel. See Hernandez, 242 F. 3d at 113-14.

The court evaluates Petitioner's claim of ineffective assistance of counsel under the framework set forth in Strickland v. Washington, 466 U.S. 668 (1984). The petitioner "must show that counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms." Strickland, 466 U.S. at 687-88. If that burden is overcome, the petitioner must also show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "[C]counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. In light of this standard, Petitioner has failed to establish that her attorney provided ineffective assistance.

Petitioner's claim of ineffective assistance due to counsel's alleged statements assuring Petitioner she would receive a sentence lower than that indicated in the Plea Agreement is unfounded and belied by the record. Petitioner stated to the court under oath during her plea allocution that she understood her ultimate sentence could not be guaranteed in advance and, indeed, that no one had made a promise to her as to what her sentence would be. (See Guilty Plea Tr. at 13, 16-17, 20, 26.) Petitioner also stated that she understood that the statute she was accused of violating "carries with it a maximum term of imprisonment of life and . . . has a minimum term of imprisonment of ten years." (Guilty Plea Tr. at 16.) The court repeatedly advised Petitioner that it did not know exactly what sentence it would impose, and, each time, Petitioner responded that she understood that fact. (See Guilty Plea Tr. at 16-17, 20.) Petitioner further stated under oath that her plea of guilty was voluntary, and that no one had made any promises to induce her to plead guilty including any promise as to what Petitioner's final sentence would be. (Guilty Plea Tr. at 26.) As explicitly stated in the plea agreement and as reiterated by the court, the court is not bound by the sentencing guideline range set forth in the plea agreement. (See Plea Agreement at ¶ 3 ("The Guidelines estimate set forth in paragraph 2 [of the plea agreement] is not binding on the Office, Probation Department or the Court."); Guilty Plea Tr. at 16-20.) Notably, however, the Plea Agreement entered into by Petitioner indicated that the applicable guideline range sentence would be 135-168 months, and the court ultimately sentenced Petitioner to the low end of that guideline range. (See Sentencing Tr. at 39.) It is abundantly clear from the record that Petitioner understood that no promises were being made regarding her sentence, the court was not bound by the plea agreement or the applicable advisory sentencing guideline range and, even if the advisory sentencing guideline range estimate was wrong, she would not be permitted to withdraw her guilty plea.

Therefore, Petitioner's claims that counsel's assistance was ineffective because counsel advised her that: (i) there would be a reduction in her U.S.S.G. range due to the amended crack law*fn5 ; (ii) she would be sentenced to 60 months of imprisonment at most; and (iii) she would receive far less time than the amount indicated on the agreement, are baseless. See Goldberg v. United States, 100 F. 3d 941, at *1 (2d Cir. 1996) (claim that counsel promised the appellant a maximum sentence is baseless because the appellant also "stated during the plea colloquy that he had not been promised anything with regard to his guilty plea"); United States v. Soler, 289 F. Supp. 2d 210, 215 (D. Conn. 2003), aff'd, 124 Fed. App'x 62 (2d Cir. 2005)("even if counsel provides deficient advice, a defendant who understands the actual sentencing possibilities prior to entering the plea cannot succeed on an ineffective assistance of counsel claim because the defendant cannot prove that but for counsel's unprofessional errors, he would have elected to proceed with the trial instead of pleading guilty.") (citations and internal quotation marks omitted). Even assuming counsel provided Petitioner with a mistaken estimate of Petitioner's likely sentence, it would still be insufficient to support a claim for ineffective assistance of counsel.*fn6 See ...


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