United States District Court, S.D. New York
For Jeffrey Alan Brown, Esq., Assistant United States Attorney, PREET BHARARA, ESQ., United States Attorney for the Southern District of New York, New York, New York.
JUANITO CORDOBA-BERMUDEZ, Defendant, Pro se, Leavenworth, Kansas.
DENNY CHIN, United States Circuit Judge.
On August 10, 2010, defendant Juanito Cordoba-Bermudez pled guilty to conspiracy to provide material support to a foreign terrorist organization in violation of 18 U.S.C. § 2339B. On June 1, 2011, I sentenced him principally to 180 months' incarceration. Cordoba-Bermudez appealed the judgment of conviction, and the Second Circuit affirmed on August 29, 2012. United States v. Mora-Pestana, 496 F.Appx. 98, 100 (2d Cir. 2012) (summary order).
Proceeding pro se, Cordoba-Bermudez moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the basis that (1) the Court improperly participated in plea discussions; (2) after Cordoba-Bermudez pled guilty, the Government made factual assertions that he had not admitted; (3) the Court erred in instructing Cordoba-Bermudez that he would not be able to later withdraw his guilty plea; and (4) the Court erred in applying a terrorism enhancement at sentencing.
A. The Facts
Between at least October 2007 and up to February 2009, Cordoba-Bermudez and others conspired to provide " material support or resources" to the Fuerzas Armadas Revolucionarias de Colombia (the " FARC" ). (PSR ¶ 2). The FARC was designated as a foreign terrorist organization on October 8, 1997 by the United States Secretary of State. (PSR ¶ 2).
Cordoba-Bermudez organized a smuggling group that delivered narcotics in exchange for supplies, which were then transported to the FARC by boat. (PSR ¶ 11). Cordoba-Bermudez communicated repeatedly with a high-ranking member of the FARC (PSR ¶ 10), and discussed the procurement and transport of cocaine, weapons, military uniforms, and other supplies. (PSR ¶ ¶ 13-16; see also Ind't ¶ 8). Cordoba-Bermudez was paid $4,500 in exchange
for five boat trips to transport these supplies to the FARC. (PSR ¶ 31).
B. Prior Proceedings
1. The Indictment
On February 5, 2009, Cordoba-Bermudez was indicted on one count of conspiracy to provide material support or resources to a foreign terrorist organization under 18 U.S.C. § 2339B. (Ind't ¶ 7; see also PSR ¶ 2).
2. The Plea Allocution
On August 10, 2010, Cordoba-Bermudez pled guilty to the single conspiracy count. (Plea Tr. 28:6). In a letter submitted pursuant to United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991), the Government set forth its calculation under the Sentencing Guidelines, placing Cordoba-Bermudez at an offense level of 37 and in Criminal History Category VI. (PSR ¶ 4). This calculation was based on U.S.S.G. § 2M5.3(a) for a base offense level of 26; the addition of two levels for the use of firearms during the offense pursuant to U.S.S.G. § 2M5.3(b)(1)(B); the addition of 12 levels because the offense was intended to promote a federal crime of terrorism pursuant to U.S.S.G. § 3A1.4(a); a reduction of two points for an acceptance of responsibility through a guilty plea under U.S.S.G. § 3E1.1(a); and a reduction of one point for providing timely notice of the intention to plead guilty under U.S.S.G. § 3E1.1(b). (Id.). The Guidelines calculation resulted in a range of 360 months to life imprisonment. The statutory maximum for the offense of conviction, however, was 180 months' imprisonment, pursuant to 18 U.S.C. § 2339B. (Id.).
During the plea hearing, Cordoba-Bermudez indicated that he had fully discussed the case, the indictment, the Guidelines, and the Pimentel letter with his attorneys. (Plea Tr. 5:6-9, 7:14-21, 15:4-6, 13:4-18). The Court instructed him on and he acknowledged that he understood the advisory nature of the Guidelines and his inability to withdraw a guilty plea subsequent to receiving his sentence from the Court. (Plea Tr. 15:7-9, 16:15-22).
3. The Sentencing
Cordoba-Bermudez appeared for sentencing on June 1, 2011. He submitted a sentencing letter arguing that the 18 U.S.C. § 3553(a) factors supported a sentence below the 15-year statutory maximum because (1) the U.S.S.G. § 3A1.4 enhancement inflated Cordoba-Bermudez's advisory guideline to a level disproportionately related to his culpability; (2) he suffered and continued to suffer from psychological trauma and post-traumatic stress disorder; and (3) it would create an unfair disparity to impose a sentence on Cordoba-Bermudez, as a transporter, that members of the FARC could receive. (App. Br. 5).
The PSR adopted the Guidelines range as calculated in the Pimentel letter. (PSR ¶ 4). I adopted the factual recitations and the Guidelines calculation set forth in the PSR. (Sent. Tr. 4:7-8). I then sentenced Cordoba-Bermudez to a term of imprisonment of 180 months, followed by a period of supervised release of three years, and a mandatory special assessment of $100. (Sent. Tr. 37:1-7). Judgment was entered on June 6, 2011.
4. The Direct Appeal
On June 13, 2011, represented by counsel, Cordoba-Bermudez appealed his sentence and conviction to the Second Circuit. Cordoba-Bermudez argued that (1) the District Court erred procedurally by failing to consider the personal factors enumerated in 18 U.S.C. § 3553(a); (2) the sentence was substantively unreasonable
in light of these factors; and (3) the District Court failed to explain how the sentence fulfilled the goals of the Sentencing Reform Act. (App. Br. 25); see also Mora-Pestana, 496 F.Appx. at 99-100. The Second Circuit rejected each of these arguments and affirmed both the sentence and the conviction. See Mora-Pestana, 496 F.Appx. at 100.
4. The Instant § 2255 Motion
On August 9, 2013, proceeding pro se, Cordoba-Bermudez filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Cordoba-Bermudez argues that (1) the Court improperly participated in plea discussions during the plea hearing; (2) the Government offered factual assertions at sentencing that he had not admitted; (3) the Court erred in instructing Cordoba-Bermudez at the plea allocution that he would not be able to withdraw his guilty plea after he was sentenced; and (4) the Court erred in applying a terrorism enhancement at sentencing.
First, I conclude that all of Cordoba-Bermudez's claims are procedurally barred. Cordoba-Bermudez's claims that the Court improperly participated in plea discussions and that the Government offered factual evidence after the plea fail procedurally because Cordoba-Bermudez did not raise these claims on direct appeal and has not shown cause for his failure to do so or prejudice as a result. The claim that the Court erred in its plea instructions fails because Cordoba-Bermudez offers no justification for his failure to raise the claim on direct appeal. The claim that the Court erred in applying the terrorism enhancement fails because it was raised on direct appeal and there has been no intervening change of law to justify relitigating the issue.
Second, assuming arguendo that Cordoba-Bermudez's claims are not procedurally barred, I conclude that they fail on the merits.
I. Procedural Bar
For the reasons that follow, Cordoba-Bermudez is procedurally barred from making any of the four claims in the instant § 2255 motion.
A. Applicable Law
A district court cannot consider a § 2255 claim that was not raised on direct appeal unless a petitioner can show " cause for failing to raise his claim at the appropriate time and prejudice from the alleged error." Campino v. United States, 968 F.2d 187, 189 (2d Cir. 1992). At the same time, " a § 2255 petition cannot be used to 'relitigate questions which were raised and considered on direct appeal.'" United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (quoting Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992)). " Reconsideration is permitted only where there has been an intervening change in the law and the new law would have exonerated a defendant had it been in force before the conviction was affirmed on direct appeal." Id. (quoting Chin v. United States, 622 F.2d 1090, 1092 (2d Cir. 1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1375, 67 L.Ed.2d 353 (1981)).
If the issue is raised for the first time in a § 2255 motion, the defendant must satisfy the " cause and prejudice standard" by showing " both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Ineffective assistance of counsel may be sufficient
cause for failing to raise an issue on appeal. See, e.g., Fiumara v. United States, 727 F.2d 209, 212-13 (2d Cir. 1984).
For a habeas petitioner " [t]o prevail on a claim of ineffective assistance of counsel," he must show " (1) that counsel's performance 'fell below an objective standard of reasonableness'. . . and (2) that there is a 'reasonable probability' that, but for the deficiency, the outcome of the proceeding would have been different." McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). " A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. As to reasonableness, counsel is not under a duty to raise every " colorable" claim, Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), and " it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
Cordoba-Bermudez cites ineffective assistance of appellate counsel as the reason he failed to raise his first two claims on direct appeal, specifically that I improperly participated in plea discussions and that the Government offered factual assertions after Cordoba-Bermudez pled guilty that he had not admitted. I reject this argument because appellate counsel's conduct was not unreasonable and did not prejudice Cordoba-Bermudez.
On direct appeal, counsel did not act unreasonably by " omit[ting] significant and obvious issues while pursuing issues that were clearly and significantly weaker." Cf. Mayo, 13 F.3d at 533-34. On appeal, Cordoba-Bermudez claimed, first, that his sentence was procedurally flawed because I failed to address the defense's arguments at sentencing and failed to fully explain how the sentence fulfilled the goals of the Sentence Reform Act; and second, that I failed to give adequate weight to Cordoba-Bermudez's personal circumstances in sentencing. (App. Br. 25). These claims were not " clearly and significantly weaker" than those he raises in the instant § 2255 motion, the merits of which are discussed below. Accordingly, there is not a " reasonable probability" that had counsel raised these claims " the outcome of the proceeding would have been different." McKee, 167 F.3d at 106. Ineffective assistance of appellate counsel, therefore, fails to constitute a causal factor in Cordoba-Bermudez's failure to raise these claims.
Cordoba-Bermudez next argues that I erred during the plea hearing when I stated that he would be " bound to his guilty plea and would not be able to withdraw" it. (Def.'s Mot. to Vacate 8 (citing Plea Tr. 16:19-21)). Cordoba-Bermudez did not, however, raise this issue on direct appeal, nor does he offer an explanation in his § 2255 motion for his failure to do so. Accordingly, he is procedurally barred from asserting this claim in the instant motion. See Campino, 968 F.2d at 189-90.
Finally, Cordoba-Bermudez challenges my application of the terrorism enhancement pursuant to U.S.S.G. § 3A1.4. Specifically, he argues that I failed to establish his specific intent or to explain his motivations for the offense. These arguments were raised, however, on direct appeal. (App. Br. 21-22). See Mora-Pestana, 496 F.Appx. at 99-100. Accordingly, this claim may be considered in the instant § 2255 motion only if there has been an intervening change in law that would have exonerated Cordoba-Bermudez on direct appeal. See Sanin, 252 F.3d at 83. Cordoba-Bermudez fails to allege any change
in law in his § 2255 motion. It is therefore not procedurally appropriate to relitigate the application ...