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Rojas v. United States

United States District Court, Second Circuit

November 19, 2013

JOSEFINA ROJAS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

OPINION

THOMAS P. GRIESA, District Judge.

Petitioner Josefina Rojas pleaded guilty to conspiracy to possess and distribute cocaine. Rojas is currently serving her 240-month sentence. Rojas has filed two motions under 28 U.S.C. § 2255 to vacate her sentence because of ineffective assistance of counsel, due-process violations, and prosecutorial misconduct.

The motions are denied.

FACTS

Rojas was indicted by a federal grand jury on May 14, 2001, for her role as leader of an international drug ring. This indictment followed her incarceration in New York state prison for felony narcotics possession. On February 25, 2005, the Government filed a prior felony information against Rojas based on the New York conviction. Pursuant to a plea agreement dated March 24, 2005, Rojas pleaded guilty on April 4, 2005, to possession with intent to distribute 150 or more kilograms of cocaine.

Because of Rojas's criminal record, she faced a mandatory minimum sentence of 240 months. The plea agreement called for a sentencing guidelines range of 262 to 327 months. In the plea agreement, Rojas waived her right to appeal or collaterally attack a sentence within or below this stipulated range. The pre-sentence report issued by the Probation Department calculated a different guidelines range of 240 to 293 months' imprisonment. This lower guidelines range was adopted by the court.

Following her plea, Rojas attempted to cooperate with the government. This resulted in a delay in sentencing while Rojas's attorney and the government discussed potential cooperation by Rojas. Rojas's attempt to cooperate, however, was unsuccessful. Rojas's attorney also sought to have Rojas credited with time served in state custody on similar charges. Such a credit was rejected by the court. And Rojas's attorney sought to have the government withdraw the prior felony information, which would have reduced Rojas's mandatory minimum sentence from 240 to 120 months. The court adjourned sentencing to allow Rojas's attorney to seek such a withdrawal, but he was unsuccessful.

On November 5, 2008, Rojas was sentenced below the stipulated guidelines range to the statutory minimum of 240 months' imprisonment. Rojas did not appeal her conviction or sentence.

In April 2010, Rojas filed the instant petition under § 2255, to which the Government responded. See Rojas v. United States, 10 Civ. 3992. In May 2011, before Rojas's petition had been resolved by this court, Rojas filed another petition pursuant to § 2255. See Rojas v. United States, 11 Civ. 4203. The court ordered the Government to answer and consolidated that petition with the petition Rojas filed in 10 Civ. 3992.

In her first § 2255 petition, Rojas seeks to vacate her sentence because her attorney was ineffective at sentencing in four ways:

1. Counsel failed to move for a downward departure based on Rojas's pretrial detention conditions;
2. Counsel failed to request a sentencing reduction based on Rojas's ineligibility for certain programs because of her immigration status;
3. Counsel failed to seek credit for Rojas's time served in state custody; and
4. Counsel failed to obtain a reduction in Rojas's sentence based on her ...

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