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Cabrera v. United States

United States District Court, Second Circuit

August 23, 2013

ARNALDO CABRERA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, District Judge.

I. Introduction

Petitioner Arnaldo Cabrera ("petitioner" or "Cabrera") has filed a petition to vacate his conviction pursuant to 28 U.S.C. § 2255. Cabrera is presently in federal custody, having been sentenced by this Court on May 28, 2009, to 324 months of imprisonment following his guilty pleas to charges of (a) conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846; and (b) conspiracy to import into the United States five kilograms or more of cocaine in violation of 21 U.S.C. §§ 952, 960(a)(1), 960(b)(1)(B), and 963. In his present petition, Cabrera asserts that his former counsel, Mr. Joseph Bondy ("Mr. Bondy"), rendered ineffective assistance by incorrectly advising him that pleading guilty would not prevent him from appealing his conviction on the ground that his waiver of speedy presentment was invalid. For the reasons stated below, Cabrera's petition is denied.

II. Background[1]

On December 7, 2005, a grand jury returned an indictment charging Cabrera with one count of conspiracy to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 812, 841, and 846, and one count of conspiracy to import five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 952, 960(a) (1), 960(b)(1)(B) and 963. Drug Enforcement Agency ("DEA") agents arrested Cabrera the next day. United States v. Cabrera, No. 05 CR 1278 (NRB), 2008 WL 2803902, at *1 (S.D.N.Y. July 15, 2008).

Shortly after arriving at the DEA's New York Field Division, Cabrera confessed his knowledge of the conspiracy and expressed a desire to cooperate with law enforcement officials on any pending or future prosecutions. Id. at *1. DEA Special Agent Todd Lepkofker ("Lepkofker") then presented Cabrera with a standard form document entitled "Waiver of Speedy Presentment" (the "Waiver"), which informed Cabrera of his rights, including his right to speedy presentment, and stated, "I understand all of these rights and I hereby choose to waive my right to a speedy initial appearance and arraignment before a United States District Court Judge or other judicial officer." Waiver of Speedy Presentment (Dec. 8, 2005), Pet'r's Ex. G.

The DEA scheduled a December 12, 2005, meeting with an Assistant United States Attorney, who arranged for counsel to be appointed for Cabrera, notwithstanding the fact that he had not invoked his right to counsel. Id., at *2. Over the course of two sessions, on December 12 and December 15, 2005, Cabrera proffered with the government. Id . At some point after the second session, Cabrera fled the country. Id . On April 17, 2007, law enforcement authorities apprehended Cabrera in the Dominican Republic. Pet'r's Mot. 6. In the interim, on March 2, 2006, a grand jury had returned a superseding indictment, charging Cabrera with the same two counts. On May 17, 2007, following his extradition to the United States, Cabrera was presented for arraignment before this Court.

On February 20, 2008, Cabrera moved to suppress his post-arrest statements to law enforcement officials and government prosecutors. Two of the grounds for Cabrera's suppression motion are relevant to his current habeas petition.

First, Cabrera argued that his attorney rendered ineffective assistance by advising him to proffer with the government without counsel present. This claim was rejected. For one, we did not find Cabrera's testimony credible, including his statement that he had only a five-minute conversation with counsel in which he was told to cooperate. Id. at *4. Moreover, we found that, even if we assumed the truth of Cabrera's testimony, the ineffective assistance claim would fail because Cabrera had not demonstrated that he was prejudiced by his counsel's alleged conduct. Because of the weight of the evidence against him, Cabrera was unable to articulate how the outcome at trial would have been measurably altered if we were to suppress the proffer statements. Id. at *5.

Second, Cabrera claimed that his post-arrest statements should have been suppressed because he was not presented before a judicial officer in a timely manner, as mandated by Federal Rule of Criminal Procedure 5(a). See Fed. R. Crim. P. 5(a). This claim was also rejected because, as discussed below, we found that Cabrera's post-arrest statements were made either (1) after Cabrera's "knowing and voluntary waiver of the right to a speedy presentment" or (2) "immediately after Cabrera's arrest." Cabrera, 2008 WL 2803902, at *5.

At the suppression hearing, Lepkofker and Cabrera had presented inconsistent testimony regarding whether Cabrera had knowingly and voluntarily signed his waiver of speedy presentment. After reviewing the evidence presented, we found Cabrera's testimony to lack any indicia of truthfulness and, by contrast, Lepkofker's testimony to be highly credible. Id. at *2-*4. Specifically, we fully credited Lepkofker's testimony that the waiver of speedy presentment had been read out loud and thoroughly explained to Cabrera before he signed it. Id. at *4. Because Cabrera had signed the waiver of speedy presentment knowingly and voluntarily, the waiver was valid. See id. at *5 ("Delays attributable to a defendant's cooperation with law enforcement officials, particularly when the defendant has knowingly and voluntarily waived his right to speedy presentment, have been routinely found to be reasonable by the district courts in the Second Circuit." (citing United States v. Torres, No. 98 FR 183 (AGS), 2002 WL 72929, at *8 (S.D.N.Y. Jan. 17, 2002); United States v. Berkovich , 932 F.Supp. 582 (S.D.N.Y. 1996))).

As for the statements made by Cabrera immediately after his arrest, we found that these statements were admissible because, pursuant to 18 U.S.C. § 3501, a district court shall not exclude any voluntary statement made within six hours of the defendant's arrest. Cabrera, 2008 WL 2803902, at *5 (citing 18 U.S.C. § 3501(c) (2006)). Therefore, Cabrera's motion to suppress was denied.

On January 28, 2009, Cabrera pled guilty to both counts of the superseding indictment, and on May 28, 2009, Cabrera was sentenced to 324 months in prison.

Cabrera appealed his conviction on multiple grounds, including that his waiver of speedy presentment was invalid and thus that his indictment should thus have been dismissed, or, in the alternative, that his post-arrest arrest statements should have been suppressed. By summary order, the Second Circuit affirmed Cabrera's conviction. United States v. Cabrera, 379 F.Appx. 24 (2d Cir. 2010) (summary order). The Circuit held that, by entering an unconditional guilty plea, Cabrera had waived his right to appeal the validity of his waiver of speedy presentment. "It is well settled that [a] knowing and voluntary guilty plea waives all nonjurisdictional defects in the prior proceedings.'" Id. at 26 (alteration in original) (quoting United States v. Coffin , 76 F.3d 494, 496 (2d Cir. ...


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