United States District Court, S.D. New York
LAURA TAYLOR SWAIN, District Judge.
Pro se Petitioner Ernesto Suriel Brito ("Petitioner" or "Suriel") has filed a petition (the "Petition") to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255, on the grounds that: (1) the Drug Enforcement Agency ("DEA") agents who first arrested him violated the Eighth Amendment prohibition on cruel and unusual punishment when they delayed in taking him to the hospital to treat his broken finger; (2) he received ineffective assistance of counsel because his attorney did not raise the issue of the agents' alleged deliberate indifference to his medical needs during his prosecution; and (3) he received ineffective assistance of counsel at sentencing because his attorney failed to advise the Court that Petitioner was ineligible for the Residential Drug Abuse Program ("RDAP") and also did not object to the Court's consideration of rehabilitation when imposing its sentence. The Court has carefully considered the parties' submissions and arguments. For the following reasons, the Court denies the Petition.
On November 29, 2011, Petitioner was charged with conspiring to distribute at least five kilograms of cocaine in violation of 21 U.S.C. § 846 and with conspiring to import into the United States at least five kilograms of cocaine in violation of 21 U.S.C. § 963. On March 15, 2012, Petitioner, his counsel and the Government executed a written plea agreement (the "Plea Agreement") which outlined the terms under which Suriel agreed to plea guilty to Count One of the Indictment (conspiracy to distribute at least five kilograms of cocaine in violation of 21 U.S.C. § 846) and the parties stipulated to a Guidelines offense level of 27. The parties also agreed to a Criminal History Category of I, which meant that Suriel's stipulated Guidelines Range was 70 to 87 months, and they further stipulated that neither a downward departure nor upward departure from that range was warranted. (Gov't Ex. A. at 3-4.) Most significantly for the purposes of this Petition, Suriel agreed that he would "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 of 70 to 87 months' imprisonment..." (Id. at 5.) After a detailed plea allocution, in which the Court informed Suriel, inter alia, of the maximum and minimum penalties he faced, his rights under the Plea Agreement and specifically directed his attention to the provision in the Plea Agreement restricting his ability to appeal or collaterally attack a sentence within or below the Stipulated Guidelines Range, the Court accepted his guilty plea. (Gov't Ex. B. at 7-15, 20.)
On September 24, 2012, Petitioner was sentenced to sixty months of imprisonment. The Presentence Investigation Report used the offense level of 27 and a Criminal History Category of I, resulting in a sentencing range of 70 to 87 months, and recommended a sentence of 70 months' imprisonment. (See PSI ¶¶ 21-31, 36 and 68.) At the sentencing, Suriel, his counsel and the Government did not dispute the merits of the recommendations made in the Presentence Investigation Report and Suriel's counsel argued for a non-Guidelines sentence of twenty-four months while the Government advocated a sentence within the Stipulated Guidelines Range. (See Sent. Tr. at 6-9.) After considering carefully the factors under 18 U.S.C. § 3553(a), especially noting the seriousness of the offense, the history and characteristics of Petitioner, including his economic stress at the time of the offense, his positive work history, and his family support, the Court imposed a sentence of sixty months imprisonment followed by two years of supervised release, which was ten months below the bottom of the Stipulated Guidelines Range. (Id. at 14-17.)
Before concluding the sentencing, the Court also noted that Petitioner's immigration status might preclude him from participating in the RDAP Program, but asked defense counsel if he still wanted the Court to recommend Petitioner for that program. (Id. at 21.) Initially, defense counsel declined, but then asked the Court to recommend Petitioner. The Court did so and told Suriel at the time that it could give him "the opportunity to shorten [his] sentence" and further urged him to take advantage of educational and vocational programs offered to him in prison. (Id.) The Court explicitly stated that there was no guarantee that Suriel would be admitted into the RDAP and there is no indication that the decision as to the length of the term of imprisonment imposed was linked to whether Suriel could access rehabilitation through the RDAP. (Id. at 21-22.)
Petitioner Has Waived His Right to Collaterally Challenge His Sentence
Respondent first argues that Suriel's Petition should be dismissed because Suriel was sentenced to 60 months of imprisonment and he knowingly, voluntarily and expressly waived his right to collaterally challenge his sentence under Section 2255 if his sentence fell within or below the stipulated Guidelines range of 70 to 87 months. The Second Circuit has held that waivers of the right to appeal or collaterally attack a sentence such as Suriel's here are presumptively valid and enforceable. See, e.g., United States v. Lee , 523 F.3d 104, 106 (2d Cir. 2008); see also Concepcion v. United States, Nos. 97 Civ. 2961(SS), 93 CR. 317(SS), 1997 WL 759431, at *2 (S.D.N.Y. Dec.10, 1997) ("[i]t is well established that a petitioner may not use a § 2255 motion to sidestep a plea agreement that stipulates a defendant will waive his right to appeal the merits of a sentence that falls within or below a stipulated range"). "In no circumstance... may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement [or] [s]uch a remedy would render the plea bargaining process and the resulting agreement meaningless." United States v. Salcido-Contreras , 990 F.2d 51, 53 (2d Cir. 1993). The only way to overcome the rebuttable presumption of enforceability is to show that: "(1) the waiver was not knowing, voluntary, and competent; (2) the sentence imposed was based on impermissible factors, such as race or other biases; (3) the Government breached the plea agreement; or (4) the sentencing court failed to enunciate a rationale for the sentence." Santiago-Diaz v. United States , 299 F.Supp.2d 293, 297-98 (S.D.N.Y. 2004).
Here, during the plea allocution, the Court throughly examined Suriel's competence to enter the plea and carefully went through the requirements of Federal Rule of Criminal Procedure 11 to ensure that Suriel understood the rights that he would be relinquishing by pleading guilty, Suriel indicated that he understood all of the information. (See Gov't Ex. B at 4-10.) The Court also confirmed that Suriel also understood the possible penalties that he BRITO.WPD VERSION 04/03/14 4 faced from pleading guilty. (Id. at 12-15.) Finally, the Court specifically focused Suriel's attention on the meaning of the waiver of appeal provision in the Plea Agreement and Suriel stated that he understood that his "plea agreement provide[d] that [he was] giving up or waiving [his] right to appeal, litigate or challenge [his] sentence under Sections 2255 and/or 2241 of Title 28, and to seek a sentence reduction under Section 3582(c) of Title 18 if [he was] sentence[d] to 87 or fewer months of imprisonment." (Id. at 20.) The record demonstrates that the waiver was knowing and voluntary and Suriel does not contend that the sentence imposed was based on any impermissible factor; that the Government breached the plea agreement; or that the Court did not enunciate a rationale for the sentence. Accordingly, the Court finds that Suriel validly waived his right to collaterally attack his sentence. Petitioner's Eighth Amendment Claim
Respondent notes correctly that, even if Suriel had not waived his right to collaterally attack his sentence, Petitioner's claim that his Eighth Amendment right was violated is not properly raised in a Section 2255 Petition. Petitioner claims that the DEA agents who arrested him violated the Eighth Amendment prohibition on cruel and unusual punishment when they failed to immediately take him to the hospital to treat his broken finger. (See Petition at 4, 15-16 (according to Petitioner, as he was being handcuffed, "he sat awkwardly in such a manner as to catch his fingers, causing his right ring finger to be badly fractured" and then waited approximately eight hours for the agents to take him to the hospital so that his finger could be treated)).
Because Suriel's deliberate indifference claim "does not challenge any aspect of his conviction or sentencing, " his motion cannot be "interpreted as a collateral attack on his criminal conviction under 28 U.S.C. § 2255." Holloway v. United States, No. 05 Civ. 5908(ARR), 2006 WL 516826, at *1 (E.D.N.Y. Feb. 28, 2006) (explaining how claims relating to conditions of confinement are properly brought as Bivens actions). Petitioner's claim against the DEA agents should be brought as a Bivens action alleging a constitutional tort. See, e.g., Thomas v. Ashcroft , 470 F.3d 491, 496-97 (2d Cir. 2006). Petitioner's claim that the DEA agents exhibited deliberate indifference to his medical needs thus fails and the Petition must be denied insofar as it is sought on such grounds.
Petitioner's Ineffective Assistance of Counsel Claim.
Suriel also claims that his attorney was ineffective because he: (1) failed to raise the issue of the agents' purported deliberate indifference to Suriel's medical needs during his arrest; and (2) at sentencing, he failed to advise the Court that Suriel was ineligible for the RDAP and did not object to the Court considering rehabilitation possibilities when imposing the sentence. (See Petition at 5-7.) In Strickland v. Washington , 466 U.S. 668 (1984), the Supreme Court established a two-part test to determine whether a lawyer's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment, " which is to be judged by an objective standard of reasonableness. Id. at 687. Under the first prong, a reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, bearing in mind [t]hat there are countless ways to provide effective assistance in any given case and [e]ven the best criminal defense attorneys would not defend a particular client in the same way." United States v. Aguirre , 912 F.2d 555, 560 (2d Cir. ...