The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Presently before this Court is Petitioner, Edwin Vasquez's, motion to vacate, set aside, or correct his sentence and conviction pursuant to 28 U.S.C. § 2255. For the reasons discussed below, Petitioner's motion is denied.
2. On March 6, 2009, Petitioner appeared before this Court and pled guilty to Count One of case number 09-CR-087S, which, in violation of 21 U.S.C. §§ 841(a)(1) and 846, charged him with conspiracy to possess, with intent to distribute, cocaine. (Docket Nos. 207, 209.)
3. In the plea agreement, Petitioner and Respondent agreed that the total offense level, including a reduction for Petitioner's acceptance of responsibility, was 29, and that Petitioner's criminal history category was VI, which resulted in a Guidelines sentencing range of 151-188 months, a fine of $15,000 to $1,000,000, and a period of supervised release of three years. (Plea Agreement, ¶ 10; Docket No. 208.)
4. In the agreement, Petitioner "knowingly waive[d] the right to appeal and collaterally attack any component of a sentence imposed by the Court which falls within or is less than the sentencing range for imprisonment, a fine and supervised release." (Id., ¶ 18.) Further, the agreement specified that neither party would move for a sentence outside the Guidelines. (Id., ¶ 11.)
5. On September 2, 2009, this Court sentenced Petitioner to a term of imprisonment of 120 months and imposed a period of supervised release for a term of three years. (Docket No. 218.) No fine, fees, or costs were imposed, save for a $100 special assessment. (Id.) The Clerk of the Court filed the sentencing judgment on September 10, 2009. (Docket No. 219.) Petitioner filed a notice of appeal with the Second Circuit Court of Appeals on September 9, 2009, but did not file a brief or an appendix. (Docket No. 225.) His appeal was therefore dismissed on June 2, 2010. (Id.)
6. On August 10, 2010, Petitioner filed the present motion; in addition to substantive relief, he also sought: (1) leave to proceed in forma pauperis, (2) appointment of counsel, and (3) a free transcript of the plea and sentencing proceedings. The first of those requests was granted; the latter two were denied. (Docket No. 228.) Respondent filed its responsive memorandum on September 24, 2010. (Docket No. 229.)
7. 28 U.S.C. § 2255 allows federal prisoners to challenge the constitutionality of their sentences.That section provides, in pertinent part, that:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255.
8. The Second Circuit has held that a "collateral attack on a final judgment in a criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a fundamental defect which inherently results in a complete miscarriage of justice.'" Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (per curiam) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)). When a defendant waives his right to appeal or collaterally attack a sentence within an agreed upon range,he may not, absent limited exceptions, appeal the merits of a sentence conforming to the agreement. United States v. Hawkins, 513 F.3d 59, 61 (2d Cir. 2008).These exceptions include: when the waiver was not made knowingly, voluntarily, and competently, when the sentence was imposed based on constitutionally impermissible factors, such as ethnic, racial, or other prohibited biases, when the government breached the plea agreement, or when the sentencing court failed to enunciate any rationale for the defendant's sentence, thus amounting to an abdication of judicial responsibility.
Held v. United States,No. 3:08CV1189(MRK), 2009 WL 179820, at *3 (D. Conn. Jan. 20, 2009) (quoting United States v. Gomez--Perez, 215 F.3d 315, 319 (2d Cir.2000)).
9. In his motion, Petitioner asserts that he was denied effective assistance of counsel because his attorneys failed to: (1) file a notice of appeal, (2) discuss the PreSentence Report ("PSR") with him, and (3) file a motion for a downward departure. Respondent, in turn, argues that Petitioner's claims are precluded by the plea agreement.
10. The Sixth Amendment provides, in pertinent part, that "[i]n all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence." U.S. Const. amend VI. It is well-established that "the right to counsel is the right to the effective assistance of counsel." Eze v. Senkowski, 321 F.3d 110, 124 (2d Cir. 2003) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)).
The United States Supreme Court has held that an ineffective assistance of counsel claim may be raised in a § 2255 motion even if it was not raised on direct appeal. Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690, 1696, 155 L. Ed. 2d 714 (2003). 11. The standard for determining whether a defendant was provided with effective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish a claim under the Strickland standard, "a defendant must show (a) that counsel's representation 'fell below the objective standard of reasonableness' based on 'prevailing professional norms' and (b) that 'there is a reasonable ...