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Karimu v. United States

United States District Court, Second Circuit

August 6, 2013

FARUK KARIMU, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM AND ORDER

P. KEVIN CASTEL, District Judge.

The petition of Faruk Karimu, pursuant to 28 U.S.C. § 2255, asserts, among other things, that his appointed counsel failed to provide the effective assistance of counsel guaranteed by the Sixth Amendment in failing to make pretrial motions, in falsely telling him that he could challenge the quantity of heroin at sentencing, in assuring him he would get a sentence of time served, in failing to seek a minor role adjustment, in failing to explain the concept of conspiracy and in failing to advise him properly on a possible coercion claim. He also asserts that his plea was not knowing and voluntary. Further, he claims his sentence amounts to cruel and unusual punishment in violation of the Eighth Amendment.

For reasons explained, the Court denies Karimu's petition.

THE PLEA AGREEMENT AND GUILTY PLEA

"It is well settled that a defendant's plea of guilty admits all of the elements of a formal criminal charge and, in the absence of a court-approved reservation of issues for appeal, waives all challenges to the prosecution except those going to the court's jurisdiction." Hayle v. United States , 815 F.2d 879, 881 (2d Cir. 1987) (citations omitted). "Thus, after a judgment of conviction has been entered upon the defendant's plea of guilty, the defendant may not raise nonjurisdictional challenges either on direct appeal or by collateral attack under § 2255." Id . (citations omitted).

At the plea proceeding, Karimu confirmed that he felt "OK" and that his mind was clear. (Oct. 28, 2010, Tr. at 4.) He confirmed that he had enough time to discuss all of his options with his lawyer and was satisfied with his lawyer's representation of him. (Id. at 5.) The rights he would have if he went to trial and the rights he was giving up by pleading guilty were explained in detail and in a manner compliant with Rule 11(b), Fed. Crim. P. (Id. at 7-9.) He confirmed that no one had threatened him or forced him to plead guilty and no one made any promises to induce him to plead guilty. (Id. at 13-14.) He stated that he had discussed his plea agreement (the "Plea Agreement") with his lawyer before signing it and understood it before signing it. (Id.)

He was expressly informed by the Court that "any prediction, calculation or estimate that anyone has made to you as to what sentence I might give you is not binding on me, and if it turns out to be wrong, you will not be permitted to withdraw your guilty plea." (Id. at 14.) He expressed his understanding of this admonition. (Id.)

He was informed about the process of sentencing, the manner in which the Guidelines range would be calculated and their advisory nature. (Id. at 12, 14-15.) He expressed understanding that in the Plea Agreement "[y]ou have waived your right to appeal or collaterally attack a sentence unless the sentence I impose is above the stipulated guideline range, and in that event the law will only allow you to challenge the sentence on the ground that it is unreasonable or contrary to law." (Id. at 15.) The Court's inquiry of Karimu was consistent with the terms of the Plea Agreement, which he understood and signed. That agreement provided, among other things, that he "will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or 2241, any sentence within or below the Stipulated Guideline Range, " which was principally 70 to 87 months' imprisonment. (Plea Agreement at 4.)

The Court inquired of the facts which led the defendant to believe he was guilty. He stated that he brought heroin into the United States from Africa and that he knew what he was doing was wrong and unlawful. (Oct. 28, 2010, Tr. at 17.) He was asked whether he had any questions for the Court and he did not. (Id. at 18.) He then entered a plea of guilty which the Court found to be knowing and voluntary. (Id.)

Upon review of the arguments presented in the petition, the Court reaffirms that the plea was knowing and voluntary. It was not coerced. It was not based upon any deception by anyone.

SENTENCING

Before sentencing, Karimu's lawyer submitted two letters to the Court. She urged the Court to sentence the defendant to time served and noted that he would be deported. She noted that he has feared for his life when he returns to Ghana based upon what he has told the government. When given the opportunity to speak at sentencing, Karimu asserted that his mother was sick and he had no money and he was approached to bring back a "diamond" for money. (Jan. 18, 2011, Tr. at 11.) He traveled with "their bag" and gave it to a person and he never saw what was inside the bag. (Id. at 11-12.) He said he went back to Ghana "know[ing] they give me the drug before." (Id. at 12.) They took his passport and they told him to swallow something. (Id.) He later said, "1 know it's drug but 1 have to do it because I need my green card and my passport back. I do it." (Id.) He stated: "I never think to commit no crime. This was pressure about my mother. That's why." (Id. at 13.)

Upon completion of Karimu's remarks the Court inquired of his counsel: "is your client suggesting that he did not commit the crime, that he was the subject of duress and that he does not have criminal culpability here?" (Id. at 13-14.) Defense counsel stated that she had "discussed those issues... with my client, Judge, we've talked about them. And I don't believe he is asking that." (Id. at 14.) She went on to say that "he knew it was drugs when he went there. He swallowed the drugs. Certainly he didn't mention anything about what I think amounts to the legal defense of duress. And nor do I think we could ever prove such a claim in court and win this case." (Id.) Karimu confirmed, upon the Court's inquiry directly of him, that he agreed with what his lawyer said and did not wish to withdraw his guilty plea. (Id. at 15.) The government then outlined the information about Karimu's involvement that Karimu himself stated in the course of three proffer sessions, including a prior trip in which he brought heroin in a trap in a suitcase. (Id. at 15-18.)

Karimu, who otherwise faced a mandatory minimum of 120 months' imprisonment, was found to qualify for the "safety valve." The Court announced a proposed sentence of principally 70 months' imprisonment, the low end of the Guidelines range, which was also the Stipulated Guideline Range in the Plea Agreement, and inquired whether there was any objection. Karimu's counsel responded, "There is no legal objection[]. Obviously my client would like the Court to know it is more than ...


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