The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge
Presently before this Court is the Motion of pro se Petitioner Julio C. DeLeon II to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. This Court previously reserved decision on the § 2255 motion until the record could be expanded as ordered. This Court has received and reviewed the additional submissions, and for the reasons discussed below, Petitioner's § 2255 motion is denied.
On July 25, 2008, Petitioner appeared before this Court, waived indictment, and pled guilty to a one-count Information charging him with possession of child pornography in violation of 18 U.S.C. § 2252A (a)(5)(B). (See Docket Nos. 13-15, 35.) During the plea colloquy, the Court informed Petitioner that the maximum penalty that could be imposed at sentencing included a ten-year term of imprisonment with a term of supervised release of up to life. (Plea Tr. at 9, Docket No. 35; see Plea Agreement ¶ 1, Docket No. 15.) The plea agreement reflected the understanding of Petitioner and Respondent that Petitioner's sentencing range would include a term of imprisonment of either 78 to 97 or 87 to 108 months, depending on his criminal history, with a two to three year term of supervised release. (Plea Agreement ¶ 12; see Plea Tr. at 14-15.) The agreement also included Petitioner's acknowledgment that he remained subject to the maximum penalty at sentencing. (Plea Agreement ¶¶ 1, 20.) Finally, as relevant, 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 set forth in Section III, ¶12, . . . notwithstanding the manner in which the Court determines the sentence." (Id.)
Petitioner was sentenced on November 20, 2008 to a term of incarceration of 108 months with a life term of supervised release. (Sentencing Hr'g at 20, Docket No. 36.) No notice of appeal was filed. The instant § 2255 motion was filed by Petitioner on September 28, 2009. (Docket No. 30). Respondent filed an opposing Memorandum of Law (Docket No. 37), to which Petitioner responded with a letter, which this Court will accept as a reply declaration. (Docket No. 39). In the prior Decision and Order, this Court 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 is entitled to relief pursuant to § 2255 because (1) he was denied effective assistance of counsel; (2) he was sentenced to a term of supervised release that fell above the sentencing range detailed in his plea agreement;
(3) his conviction was the result of an illegal arrest; (4) his conviction was the result of an involuntary confession; and (5) his conviction was the result of illegally obtained evidence. (Pet.'s Mem. of Law, Docket No. 30.) He asserts in his initial submission that he did not raise these issues in a direct appeal "on advice from my attorney not to file a direct appeal because it will just upset the judge. After doing some research of my own I believe I have every right to file this motion." (Pet.'s Mem. of Law at 5.) Thus, as written, it appears that Petitioner initially accepted counsel's advice but subsequently changed his mind. In his reply declaration, however, Petitioner clarifies that after being advised by counsel that filing an appeal would "upset the judge," he told counsel that "I wanted her to file an appeal and she stated she would if that[']s what I wanted and I stated yes," but no appeal was ever filed. (Pet.'s Reply Decl. at 3, Docket No. 39.) Accordingly, in addition to the allegations that trial counsel failed to argue that the presentencing report inaccurately reflected his criminal history and that she failed to object to an improper two-level sentencing enhancement, (Pet.'s Mem. of Law at 4), Petitioner has asserted that counsel failed to file a notice of appeal as he specifically requested.
A. Ineffective Assistance
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).
1. Failure to file notice of 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 that affidavits be filed ...