United States District Court, W.D. New York
DECISION AND ORDER
DAVID G. LARIMER, District Judge.
Defendant Emanuel De Jesus Sosa-Lopez ("Sosa-Lopez") has filed a motion, pro se, pursuant to 28 U.S.C. § 2255 seeking to vacate and set aside the judgment and sentence in this case. The basis for the motion is Sosa-Lopez's contention that he received ineffective assistance of counsel, in several respects, from his retained attorney.
The Government filed a detailed answer in response to the motion (Dkt. #103) and defendant's attorney, Michael P. Schiano, who allegedly provided ineffective assistance, also submitted an affidavit (Dkt. #96) in response to the allegations made by Sosa-Lopez as to counsel's representation. Because Sosa-Lopez has failed to establish any constitutional violation, the motion to vacate is in all respects denied.
On October 7, 2009, defendant pleaded guilty to Count 1 of the Superseding Indictment, charging conspiracy to distribute and possess with intent to distribute 5 kilograms or more of cocaine. Prior to entry of the plea, the Government had filed an Information, pursuant to 21 U.S.C. § 851 advising that defendant was subject to enhanced penalties because of a prior drug conviction. Attorney Schiano represented Sosa-Lopez at the plea and subsequent sentencing.
Sosa-Lopez was originally represented by another attorney, James P. Vacca, who was appointed by the Court pursuant to the Criminal Justice Act. Sosa-Lopez apparently had some difficulties with attorney Vacca and, thereafter, he retained attorney Schiano. The claims of alleged ineffective assistance of counsel relate only to Schiano, not Vacca.
The plea agreement, which is attached to the Government's Answer as Exhibit B (Dkt. #76) set forth in detail the crime covered by the plea, the facts supporting the plea, the fact defendant admitted to having previously been convicted of a drug crime, the mandatory minimum sentence of 240 months and the anticipated United States Sentencing Guidelines ("Guidelines") sentence of 292-365 months.
The plea agreement also contained a provision allowing for Sosa-Lopez's cooperation which could have resulted in a reduced sentence had the Government made a motion pursuant to Guidelines § 5K1.1 and 18 U.S.C. § 3553(e). Apparently, although there were some proffer sessions, Sosa-Lopez never did complete cooperation and, therefore, no departure motion was filed. Sosa-Lopez does not challenge that and, in his attorney's affidavit, it appears that Sosa-Lopez declined to provide complete cooperation and was withholding information out of fear for himself and others. See Dkt. #96, ¶ 7.
After reviewing the presentence report and there being no objections to it, the Court imposed the mandatory minimum sentence of 240 months to be followed by defendant's deportation. That sentence was several years lower than the Guidelines sentence of 292-365 months.
The plea agreement provided, as a condition of the plea, that Sosa-Lopez waive his right to file any type of appeal. Sosa-Lopez was specifically advised of this condition during the plea colloquy (Ex. C to the Government's answer, p. 12). The appeal waiver provided for a waiver of the right to file a direct appeal or any collateral attack as long as the sentence was less than 365 months. That waiver should be enforced and it precludes the motion now brought by Sosa-Lopez.
Furthermore, Sosa-Lopez has failed to demonstrate that the plea was involuntary or unknowing. The transcript of the proceedings and all matters relating to the plea, including facts set forth by Sosa-Lopez's attorney in his affidavit belie any suggestion that this plea was unknowing or involuntary.
As the Government points out in its answer, there was a full discussion and colloquy with Sosa-Lopez about the plea, the fact that he had reviewed the plea agreement with counsel, and that he understood it and had no questions about it. Sosa-Lopez also stated on the record under oath that the was satisfied with the representation provided to him by attorney ...