Carlos Echeverry, # 56892-054 FCI Allenwood, White Deer, PA, Petitioner (Pro Se).
John J. O'Donnell, Assistant United States Attorney, One St. Andrew's Plaza, New York, NY, for Respondent.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
On September 16, 2005, petitioner Carlos Echeverry waived indictment and pled guilty to Superseding Information S1 04 CR 1162 (SAS) (the "S1 information"). The S1 Information charged Echeverry with two counts: Count One charged Echeverry with conspiring to distribute, and to possess with the intent to distribute, (a) five or more kilograms of cocaine, (b) one or more kilograms of heroin, and (c) 50 or more grams of cocaine base, commonly known as "crack, " in violation of Title 21, United States Code, section 846. Count Two charged Echeverry with aiding and abetting the use, carrying, and discharge of a firearm during and in relation to a drug-trafficking offense in violation of Title 18, United States Code, section 924(c) ("section 924(c)"). Count One carried a statutory mandatory minimum term of 120 months in custody while Count Two carried a statutory mandatory minimum term of 120 consecutive months in custody.
On June 29, 2010, this Court sentenced Echeverry to the mandatory minimum term of 240 months imprisonment, to be followed by concurrent terms of five years of supervised release. Echeverry appealed his sentence, and the Second Circuit affirmed the judgment on August 19, 2011. Echeverry is currently serving his sentence.
Now proceeding pro se, Echeverry filed the instant habeas motion pursuant to Title 28, United States Code, section 2255 ("section 2255") on November 14, 2012, which he supplemented with a memorandum of law dated April 1, 2013. Echeverry's section 2255 motion states the following grounds for relief: (1) Petitioner was denied his Sixth Amendment right to counsel and his Fifth Amendment right against self-incrimination because he provided a proffer to the Government without counsel present (Grounds One and Four); (2) Petitioner was deprived of the effective assistance of counsel in connection with his plea negotiations and hearing because counsel did not adequately explain the charges to him (Ground Two); and (3) Petitioner was denied effective assistance of counsel on appeal because appellate counsel did not raise the argument that Petitioner's admission concerning the firearm was obtained in violation of his Fifth and Sixth Amendment rights (Ground Three). For the reasons set forth below, Echeverry's habeas motion is denied.
A. Echeverry's Criminal Conduct and Proffer Sessions
On September 27, 2004, Echeverry handed a jacket containing 315 grams of heroin to an undercover detective and then discussed payment terms with that detective. Echeverry was arrested several days later, on October 4, 2004. That same day, he was presented before Magistrate Judge Frank Maas. Pursuant to Rule 5 of the Federal Rules of Criminal Procedure, Echeverry was advised of his rights and Robert M. Baum was appointed to represent him. Bail conditions were set but Echeverry was remanded because he could not satisfy them.
On October 19, 2004, a Grand Jury returned an Indictment charging Echeverry with distribution, and possession with intent to distribute, of approximately 315 grams of heroin. The evidence against Echeverry included: (1) the testimony of the undercover detective that Echeverry handed him a jacket containing heroin; (2) the testimony of agents conducting surveillance who witnessed the transaction; and (3) the recovery of approximately 315 grams of heroin. In addition, the conversation between Echeverry and the undercover detective was recorded.
On March 4, 2005, Paul E. Warburgh, Jr. filed a notice of appearance as Echeverry's counsel. Beginning March 31, 2005, Echeverry attended a series of proffer sessions with the Government in an effort to cooperate. These meetings were conducted pursuant to proffer agreements. As indicated on the March 31, 2005 Proffer Agreement, the meeting on that date was attended by Echeverry, Warburgh, Assistant United States Attorney ("AUSA") Daniel Stein, and Detective John R. Salvitti of the New York City Police Department ("NYPD"). A Spanish interpreter was also present. Following standard practice, the Government explained at the outset that the purpose of the meetings was for Echeverry to disclose all prior criminal conduct in order for the Government to evaluate his potential cooperation.
Echeverry attended a second proffer session with the Government on April 25, 2005, which was also conducted pursuant to a proffer agreement. That meeting was attended by Echeverry, Warburgh, AUSA Stein, Detective Salvitti, and a Spanish interpreter. Based on the March 2005 Proffer Agreement, it appears that Echeverry may have attended a third proffer session with the Government on August 1, 2005. The 8/1/05 Date of Continuation section was initialed by Echeverry, Warburgh, AUSA Stein, and Detective Salvitti. The Government did not submit a signed Proffer Agreement for the August 1, 2005 proffer session.
During the first two proffer sessions, Echeverry disclosed that he had been involved in several multiple kilogram transactions involving cocaine and heroin with various drug traffickers, as well as a transaction involving 780 grams of crack cocaine. During the April 2005 proffer session, Echeverry further disclosed that on one occasion in September 2002, he went with an accomplice to collect a drug-related debt while carrying a firearm. Echeverry acknowledged that he brandished the firearm but that the intended victim grabbed the gun during the confrontation and fired it, causing non-fatal injuries to Echeverry's accomplice. Defense counsel was present at the proffer sessions when Echeverry made these disclosures.
B. Echeverry's Waiver of Indictment and Guilty Plea
Based on the proffer session disclosures, and pursuant to a written Cooperation Agreement, Echeverry pled guilty to the S1 Information on September 16, 2005. Echeverry's plea hearing was conducted before United States Magistrate Judge Kevin Nathaniel Fox, with the aid of a Spanish interpreter. Warburgh represented Echeverry at the plea hearing. At the hearing, Echeverry waived his right to have the Government present the charges to the Grand Jury and consented to proceeding by Information. Judge Fox confirmed that Echeverry understood the nature of the proceedings and that he was competent to enter an informed guilty plea. As part of this assessment, Judge Fox asked Echeverry if he had a full opportunity to speak with his attorney about the charges in the S1 Information, to which he replied in the affirmative. Echeverry told the Court that he was satisfied with his attorney.
Judge Fox next reviewed the charges in the S1 Information and the maximum and mandatory minimum terms of imprisonment associated with each. Echeverry confirmed that he understood the nature of each charge and the maximum penalties he was facing by pleading guilty. Judge Fox then advised Echeverry of the rights he would waive by pleading guilty. Judge Fox informed Echeverry that he had a right to: (1) plead not guilty and proceed to trial by jury; (2) have the Government bear the burden of proving his guilt beyond a reasonable doubt by competent evidence at trial; (3) be represented by an attorney at all stages of the proceeding and, if necessary, an attorney would be appointed for him; (4) testify if he so desired, confront and question any witness against him, and not be forced to incriminate himself; and (5) have compulsory process used to compel witnesses to testify in his defense. Echeverry affirmed that he understood each of the rights and that he was waiving such rights by entering a plea of guilty. After the Government stated the elements of the offenses charged in the S1 Information, Echeverry stated that he still wished to plead guilty
Echeverry confirmed that he had discussed the application of the Sentencing Guidelines with his attorney. Judge Fox thoroughly reviewed the Cooperation Agreement with Echeverry who confirmed that: he read and reviewed the Cooperation Agreement with his attorney before signing it; he fully understood the Cooperation Agreement; no one had forced him to sign the Cooperation Agreement; and the Cooperation Agreement constituted the complete and total understanding among himself, his attorney and the Government. Echeverry acknowledged that his plea was being made voluntarily and of his own free will.
Judge Fox then asked Echeverry if he had committed the offenses in the S1 Information. With respect to Count One, Echeverry responded in the affirmative, stating:
Your Honor, I, with other people, possessed for sale narcotics, crack cocaine, in Westchester and Manhattan. Cocaine, crack cocaine, and heroin. And I agreed to do so and I knew it was unlawful.
Echeverry confirmed that from 2001 to the date of his arrest, he had conspired to distribute more than five kilograms of cocaine, more than 50 grams of crack, and more than one kilogram of heroin. With respect to Count Two of the S1 Information, Echeverry stated: "In September 2002, I was in a car in Manhattan with other people, and one ...