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Hernan Ramirez-Hernandez, Pro Se v. United States of America

May 21, 2012

HERNAN RAMIREZ-HERNANDEZ, PRO SE, PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



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

MEMORANDUM AND ORDER

Pro se*fn1 petitioner Hernan Ramirez-Hernandez ("Petitioner") filed this petition for a writ of habeas corpus, challenging his sentence pursuant to 28 U.S.C. § 2255 ("Section 2255"). Petitioner argues he received ineffective assistance of counsel, in violation of the Sixth Amendment of the United States Constitution, because his attorney failed to move for a downward departure from the mandatory minimum sentence imposed by the court. The government opposes the petition. For the reasons set forth below, the petition for writ of habeas corpus is denied in its entirety.

I.Background

A.Plea Agreement and Plea Hearing

On May 13, 2008, under oath and represented by counsel, Petitioner pled guilty, pursuant to a written plea agreement to Count One of the indictment, which charged that Petitioner conspired to import 100 grams or more of heroin into the United States, in violation of Title 21, United States Code, Section 963. (See 09-CV-4107, Dkt No. 3, Ex. A ("Plea Agreement"); id.,Ex. B, May 13, 2008 Guilty Plea Transcript ("Plea Tr.") at 25.) The written Plea Agreement Petitioner entered into on May 13, 2008 stated, inter alia, that the charge to which Petitioner was pleading guilty carried a maximum sentence of forty years' imprisonment and a mandatory minimum sentence of five years' imprisonment. (Plea Agreement ¶ 1.) The Plea Agreement also stated 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 24, which carried a range of imprisonment of 51 to 63 months, and, if Petitioner pled guilty on or before May 13, 2008, the government would move for a reduction of one point, resulting in an offense level of 23, which carried a range of imprisonment of 46 to 57 months. (Id. ¶ 2.) However, the Plea Agreement further stated that, because Petitioner was subject to a mandatory minimum sentence of 60 months, the effective U.S.S.G. range of imprisonment would actually be 60 to 63 months. (Id.) Additionally, the Plea Agreement also contained an explicit appellate waiver provision (the "Waiver Provision") whereby Petitioner "agree[d] not to file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, the conviction or sentence in the event that the Court imposes a term of imprisonment of 63 months or below." (Id. ¶ 4.)

During the plea hearing, the court asked Petitioner, inter alia, whether he was satisfied with the representation and advice given to him by his attorney and whether he had had sufficient time to discuss his decision to plead guilty with her. (Plea Tr. at 4-5, 8-9.) Petitioner responded affirmatively to the questions. (Id.) The court also explained to Petitioner that "by pleading guilty and by entering into the plea agreement that is before the court today, you will have waived or given up your right to an appeal or to collaterally attack all or part of the sentence that I will impose if I should impose a sentence of 63 months or something below that. Do you understand that?" (Id. at 14.) Petitioner responded that he understood. (Id.) Shortly thereafter the court explained the Waiver Provision again and Petitioner again stated he understood and consented to the agreement. (Id. at 17.)

The court also explained to Petitioner that the charge to which he was pleading guilty carried a minimum term of five years' imprisonment. (Id. at 18.) Petitioner's counsel represented that Petitioner wished to proffer for the safety valve exception, pursuant to 18 U.S.C. § 3553(f). (Id. at 23.) The court then explained to Petitioner that "what is important about the safety valve is . . . it allows the court to impose a sentence that is less than the statutory minimum." (Id. at 24.) Accordingly, the court informed Petitioner that "it's always to your benefit to do your best at those [proffer] meetings." (Id.) Then, based on Petitioner's responses to all of the court's inquiries, the court found "that [Petitioner] is not only acting voluntarily and that he understands his rights and the consequences of his plea but also that there is a factual basis for the plea and I therefore accept his plea of guilty to count one of the indictment." (Id. at 30.)

B.Sentencing Hearing

On February 19, 2009, Petitioner appeared before the court for sentencing. (See 09-CV-4107, Dkt No. 3, Ex. C, February 19, 2009 Sentencing Transcript ("Sent. Tr.").) The court adopted the Probation Department's calculation that Petitioner's U.S.S.G. range was 46 to 57 months. (Id. at 8.) However, the court also noted that Petitioner had not satisfied the requirements for the safety valve "although he otherwise appear[ed] to be eligible in terms of his criminal history category[.]" (Id.) Accordingly, the court concluded "that the statutory minimum of 60 months trumped the guidelines as far as the minimum is concerned." (Id.) Counsel for both parties agreed. (Id.) The court then asked Petitioner whether he understood what was being discussed and Petitioner responded in the affirmative. (Id.)

Petitioner's counsel next informed the court that she was not seeking a downward departure. She stated that "ordinarily, because of my client's medical condition, I would have, but given that the mandatory minimum is above the guideline recommendation [,] I'm not." (Id. at 9.) Petitioner's counsel further stated she was "saddened that we were not able to reach an agreement on the safety valve. I have met with Mr. Ramirez to discuss this on three occasions." (Id. at 9.) Petitioner's counsel then concluded that "given his age, the fact that this is his first conviction, and given his medical condition he's asked me to ask the Court to be as merciful as possible." (Id. at 9-10.)

Before the court imposed sentence, the court made the following statement:

This was not an overly complicated case with excessive computations. In some ways the sentencing here is difficult, nevertheless, because of Mr. Ramirez-Hernandez' reluctance to follow up on the opportunity to qualify for the safety valve. This is [the] kind of a case where commonly the safety valve is granted, especially considering the fact that this is Mr. Ramirez-Hernandez' first arrest. (Id. at 10-11.) The court continued by addressing Petitioner's counsel:

I don't envy you your position, Ms. Whalen, because by not following up with the safety valve [Petitioner] has, in effect, tied your hands in terms of being able to make either a downward departure motion or a non-guidelines motion under 3553(a) in light of the life threatening illness that Mr. Ramirez-Hernandez is coping with. (Id. at 11.) The court then continued by noting:

Although the progress [of Petitioner's illness] seems not to be at an elevated state, nevertheless, that's something that could change at any given time, and so, while the Court also has to consider the 3553(a) factors, and certainly, the Court has looked at them, but the fact of the statutory minimum almost makes that an exercise in futility because, based on the facts and circumstances here and certainly, the history and characteristics of Mr. Rami rez-Hernandez and his age -- he is 60 years old, I believe, and that certainly puts him in the class of defendants who are less likely to recidivate, the fact that he does suffer from a life threatening illness, as I said, which relates to the Court's consideration of providing medical -- appropriate medical treatment to the defendant, is in many ways just taken out of ...


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