United States District Court, S.D. New York
MEMORANDUM AND ORDER
P. KEVIN CASTEL, District Judge.
Seferino Mendoza has filed, pro se, a petition to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255, asserting that he was deprived of the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution, that his guilty plea was unintelligent and involuntary, and he was actually innocent of the crime of possessing a firearm in furtherance of a robbery, to which he pleaded, thereby implicating the Fifth Amendment's due process clause.
Mendoza brought the instant petition on February 29, 2013. (Docket # 1, 13 Civ. 1160(PKC).) The government answered on May 20, 2013. (Docket # 8.) After granting multiple requests for extension of time, the Court stated that November 15, 2013, would be a final deadline, after which it would decide the petition on the existing papers. (Order 1, Docket # 17.) As of February 10, 2014, Mendoza has not filed a reply. Consequently, the Court will consider the documents submitted with Mendoza's petition, the government's response, and any declarations already provided to the Court.
For reasons explained, the Mendoza's petition is denied.
On April 22, 2009, Mendoza pleaded guilty to conspiracy to commit robbery, robbery, and possessing a firearm in furtherance of the robbery charged. (Apr. 22, 2009, Tr. 17-18, 26.) "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, Mendoza confirmed that he felt "fine" and that his mind was clear. (Apr. 22, 2009 Tr. 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 4-5.) The Court explained the rights he would have if he went to trial and the rights he was giving up by pleading guilty in detail and in a manner compliant with Rule 11(b), Fed. Crim. P. (Id. at 5-7.) Mendoza also 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 12.) He asserted that he had reviewed his plea agreement (the "Plea Agreement") with his lawyer before signing it and that he understood it. (Id. 12-13.)
Mendoza acknowledged that, under the Plea Agreement, he "waived [his] right to appeal or collaterally attack a sentence, unless the sentence that [the Court] impose[s] is above the stipulated guideline range, and, in that event, the law will only allow [him] to challenge the sentence on the ground that it is unreasonable or contrary to law." (Id. at 15.) The Court's inquiry of Mendoza was consistent with the terms of the Plea Agreement, which he understood and signed. That agreement provided, inter alia, that he "will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Guidelines Range, " which was 219 to 252 months. (Resp't's Mem. of Law in Opp'n to Pet'r's Pet. Ex. A ("Plea Agreement"), at 6-7.)
The Court inquired of the facts which led Mendoza to believe he was guilty. He stated that he conspired with others to steal cocaine, that he participated in a robbery, and that another member of the robbery crew brandished a gun during the course of the robbery. (Apr. 22, 2009 Tr. 21-25.) Mendoza further stated that he knew what he was doing was wrong and unlawful. (Id. at 26-27.) He then entered a plea of guilty. (Id. at 27). The Court found there was a factual basis for Mendoza's guilty plea and found the plea to be knowing and voluntary. (Id.)
Subsequently, the Court sentenced Mendoza to 219 months, which was the low end of the guideline range. (Jan. 13, 2010 Tr. 27.) Mendoza filed a timely notice of appeal to the Second Circuit. On appeal, his attorney filed a brief pursuant to Anders v. United States , 386 U.S. 738 (1967), that, in his opinion, there were no meritorious claims for appeal and sought leave to withdraw as counsel. Brief for Def.-Appellant Pursuant to Anders v. California , 386 U.S. 738 (1967) 9, United States v. Mendoza, No. 10-358-er (Aug. 9, 2010). The Second Circuit summarily granted counsel's motion, and affirmed Mendoza's conviction and sentence. Am. Order, United States v. Mendoza. No. 10-358-cr (Nov. 22, 2011).
I. Mendoza Waived his Right to Collaterally Attack the Sentence.
The Second Circuit has consistently upheld the validity and enforceability of a waiver of a right to appeal or collaterally attack a sentence present in a plea agreement. See, e.g., United States v. Pearson , 570 F.3d 480, 485 (2d Cir. 2009) (per curiam); Garcia-Santos v. United States , 273 F.3d 506, 509 (2d Cir. 2001) (per curiam). However, a court will not uphold a waiver "on a basis that is unlimited and unexamined." United States v. Ready , 82 F.3d 551, 555 (2d Cir. 1996). In this Circuit, there are limited exceptions to the presumption of enforceability of a waiver, "such as when the waiver was not made knowingly, voluntarily, and competently, when the sentence was imposed based on constitutionally impermissible factors, such as ethnic, racial or other prohibited biases, when the government breached the plea agreement, or when the sentencing court failed to enunciate any rationale for the defendant's sentence, thus amounting to an abdication of judicial responsibility subject to mandamus." United States v. Gomez-Perez , 215 F.3d 315, 319 (2d Cir. 2000) (internal quotation marks and citations omitted).
Mendoza claims that he did not knowingly and voluntarily enter into the Plea Agreement, thus rendering the waiver unenforceable. Mendoza does not allege any other basis for setting aside the Plea Agreement. In determining whether a waiver was knowing and voluntary, courts look to the circumstances surrounding the plea. See United States v. Cook , 722 F.3d 477, 482 (2d Cir. 2013). Here, the waiver was explicit in the Plea Agreement. (Plea Agreement 6-7.) At his pleading, Mendoza told the Court that had enough time to consider his options, that he reviewed and understood the terms of the Plea Agreement, that he had not been coerced into pleading, and that he understood that he was ...