The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge
This Court previously reserved decision on pro se Petitioner Felix Anibal HattonPineda's Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255 until the record could be expanded on the issue of whether Petitioner expressly requested trial counsel to appeal his conviction. (Docket Nos. 33, 43.) This Court has reviewed the additional submission, and for the reasons discussed below, Petitioner's § 2255 motion is denied.
Petitioner was indicted in August 2006 for violating 8 U.S.C. § 1326(a) by being found unlawfully in the United States after a prior deportation resulted from an aggravated felony conviction. On April 10, 2007, Petitioner appeared before this Court, waived indictment, and pled guilty to a one-count Superseding Information charging him with illegally reentering the country in violation of that same statute. Petitioner's counsel explained at the plea colloquy that the parties agreed to substitue the charge of illegal re-entry because the different offense date had a beneficial effect on Petitioner's criminal history score. (Plea Tr. at 7.) In his plea agreement, Petitioner acknowledged that in or about April 2005 he was: an alien who previously had been removed from the United States following a conviction for an aggravated felony, [and that he] knowingly and unlawfully entered the United States through Puerto Rico, without having first applied for and obtained the express consent of the Attorney General of the United States or his successor, the Secretary of the Department of Homeland Security, to reapply for admission to the United States. Subsequently, [Petitioner] was apprehended in the Western District of New York. (Plea Agreement, ¶ 4, Docket No. 22). Petitioner agreed that it was the understanding of the parties that his sentencing range included a term of imprisonment of 57 to 71 months, with a fine of $7,500 to $75,000, and a two to three year period of supervised release. (Id. ¶ 11.) The parties further agreed that Petitioner would be sentenced to a 60-month term of imprisonment, and in the event that this Court determined that such a sentence was not appropriate, Petitioner would be afforded an opportunity to withdraw his plea of guilty. (Id. ¶ 12.)
As a part of the plea agreement, Petitioner also acknowledged and waived his right to appeal, modify, or collaterally attack either any component of the sentence imposed by the Court which fell within or is less than the sentencing range for imprisonment, or to challenge the fine and supervised release outlined in the plea agreement. (Id. at 8-9.) This waiver precludes a collateral attack on the sentence even in the event that Petitioner subsequently becomes aware of previously unknown facts or changes in the law. (Id.)
Petitioner was subsequently sentenced in conformance with the plea agreement on August 14, 2007. (Sentencing Hr'g at 10-13, Docket No. 41.) No notice of appeal was filed. Petitioner filed the instant motion pursuant to 28 U.S.C. § 2255 on August 22, 2008. (Docket No. 33.) The Government responded with an opposing Memorandum of Law, Docket No. 35, and Petitioner filed a reply brief. Docket No. 40. In April 2011, Petitioner also filed a motion for a "Declaration for Entry of Summary Judgment or Default." Docket No. 42. In the prior Decision and Order, this Court denied the motion for summary judgment, reserved decision on Petitioner's § 2255 motion, and ordered Petitioner and his former trial counsel to submit affidavits regarding Petitioner's alleged request for an appeal to be filed.
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 (a). 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) (internal quotation marks omitted)).
In his motion, Petitioner argues that he was denied effective assistance of counsel. An ineffective assistance of counsel claim may be raised in a § 2255 motion despite the failure to raise such a claim on direct appeal. Massaro v. United States, 538 U.S. 500, 509, 123 S. Ct. 1690, 1696, 155 L. Ed. 2d 714 (2003). Where, as here, a defendant's conviction has been secured by way of a plea agreement, a defendant asserting an ineffective assistance of counsel claim must demonstrate that counsel's performance fell below an objective standard of reasonableness, and that this deficiency in performance affected the outcome of the plea process. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); see Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Petitioner specifically argues that counsel was ineffective because (1) she failed to appeal Petitioner's conviction and sentence after being requested to do so; (2) the Superseding Information was barred by the Speedy Trial Act limitations period; (3) counsel failed to seek a downward departure based upon the unreasonable delay in prosecution, resulting in the lost opportunity for Petitioner's state and federal sentences to run concurrently; and (4) counsel failed to argue that a downward departure was warranted due to the disparity in the availability of the fast-track and early disposition program between this and other jurisdictions.
A. Failure to File Appeal
"[A] lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable," Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000), even if the defendant has waived the right to appeal or the lawyer believes the appeal to be frivolous. Campusano v. United States, 442 F.3d 770, 771-772 (2d Cir. 2006); see also Garcia v. United States, 278 F.3d 134, 137 (2d Cir. 2002) (the failure of trial counsel to file a requested appeal constitutes an independent ground for habeas relief). In the prior Decision and Order, this Court ordered both trial counsel and ...