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Daniel Perez Alonso v. United States of America

April 24, 2013

DANIEL PEREZ ALONSO,
PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Frederic Block Senior United States District Judge

MEMORANDUM AND ORDER

BLOCK, Senior District Judge:

Petitioner Daniel Perez Alonso, appearingpro se, seeks to vacate his sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, his petition is denied.

I

Following his guilty plea to a twenty-seven count superceding indictment, Alonso was convicted of conspiracy to commit sex trafficking and related crimes.*fn1 See 18 U.S.C. §§ 371, 1591, 1589, 2421; 8 U.S.C. §§ 1328, 1324. The Court sentenced him to 300 months' imprisonment, to be followed by five years of supervised release, and a special assessment of $2,700. The Second Circuit affirmed Alonso's conviction and sentence following his appeal. See United States v. Carreto, 583 F.3d 152 (2d Cir. 2009). In its decision, the appellate court affirmed the Court's denial of Alonso's motion to withdraw his guilty plea, finding that the plea was taken "knowingly and voluntarily," and also found that the Court did not abuse its discretion in denying petitioner's request to substitute pre-trial counsel. Id. at 157-59. The Supreme Court denied Alonso's petition for a writ of certiorari. See Alonso v. United States, 130 S.Ct. 1555, 1555 (2010).

In bringing this § 2255 petition, Alonso claims that he was provided with ineffective assistance of counsel by three different attorneys who represented him during various stages of his criminal case. Alonso first claims that attorney Allen Lashley, counsel during the plea stage, was ineffective in failing to: (1) request a withdrawal of the indictment; (2) challenge petitioner's participation in the conspiracy; (3) file a suppression motion; (4) investigate when petitioner entered the United States; and (5) withdraw from representing him. Alonso next contends that attorney Charles Hochbaum, who represented petitioner during the sentencing phase, was ineffective in failing to present exculpatory evidence concerning Alonso's participation in the sex trafficking crimes, and in not challenging information in the PSR relating to the same. Finally, petitioner claims that his attorney on appeal, Stephanie Carvlin, was ineffective for failing to argue that the Court erred in not making an independent evaluation of the limited duration of petitioner's participation in the conspiracy. Petitioner also argues that Carvlin should have presented additional facts in support of his argument that the Court erred in denying his motion to withdraw the guilty plea.

II

To prevail on his ineffective assistance of counsel claims, Alonso must show "(1) that [each] attorney's performance fell below an objective standard of reasonableness, and (2) that as a result he suffered prejudice." United States v. Jones, 482 F.3d 60, 76 (2d Cir. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "A reviewing court must indulge a strong presumption that counsel's [performance] falls within the wide range of reasonably professional assistance." United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004). Prejudice is shown only if "there is a reasonable probability that, but for counsel's unprofessional error, the outcome of the proceeding would have been different." Wiggins v. Smith, 539 U.S. 510, 534 (2003).

a. Allen Lashley

Alonso first argues that attorney Allen Lashley provided ineffective assistance during the plea stage of the criminal litigation. Specifically, petitioner initially claims that Lashley should have done the following: (1) requested that the indictment be "withdrawn" because the crimes contained within it contained multiple counts; (2) investigated and challenged the length of time that petitioner was involved in the conspiracy; (3) filed a suppression motion;*fn2 and (4) withdrawn from representing Alonso due to a conflict of interest and petitioner's desire for new counsel.*fn3

Notably, all of petitioner's ineffective assistance of counsel claims directed against Lashley relate to the legal assistance provided by counsel prior to petitioner's guilty plea. However, "[a] defendant who pleads guilty unconditionally while represented by counsel may not assert independent claims relating to events occurring prior to the entry of the guilty plea." United States v. Coffin, 76 F.3d 494, 497 (2d Cir.1996); see also Vasquez v. Parrott, 397 F. Supp. 2d 452, 463 n.5 (S.D.N.Y. 2005) ("[C]laims of ineffective assistance of counsel relating to events prior to the plea that do not impact the voluntariness of the plea do not survive a guilty plea."). Thus, an individual "may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within acceptable standards." Coffin, 76 F.3d at 497 (citing Tollett v. Henderson, 411 U.S. 258, 267 (1973)); see also Parisi v. United States, 529 F.3d 134, 138 (2d Cir. 2008) ("An ineffective assistance of counsel claim survives the guilty plea . . . only where the claim concerns the advice the defendant received from counsel.") (citing United States v. Torres, 129 F.3d 710, 715-16 (2d Cir. 1997)). Petitioner does not claim that he received erroneous advice from Lashley such that his guilty plea was either involuntary or unintelligent.

Likewise, Alonso does not claim that were it not for Lashley's representation at the time of his plea, he "would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001) (prejudice requires that petitioner demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."). For these reasons, petitioner has not demonstrated that he received ineffective assistance of counsel from Lashley during the plea stage of his criminal case.

b. Charles Hochbaum

Alonso next contends that attorney Charles Hochbaum, who represented petitioner during the sentencing phase, was ineffective in failing to present exculpatory evidence during sentencing, and in failing to challenge information in the Pre-Sentence Investigation Report concerning petitioner's involvement in the sex trafficking crimes. Specifically, petitioner first contends that Hochbaum provided ineffective assistance of counsel in not presenting several Mexican trial transcripts ("transcripts") that were gathered by private investigator William Acosta, which purportedly called into question Alonso's participation in the crimes. Contrary to Alonso's argument, the record reflects that Hochbaum introduced these transcripts as evidence during petitioner's sentencing, and the Court both accepted and marked them so that they became an official part of the proceeding.*fn4 See Transcript of Sentencing at 6, 17-20. Alonso also claims that Hochbaum rendered ineffective assistance by not ...


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