United States District Court, N.D. New York
BOBBY HARRISON, Petitioner--Defendant, Pro se, Ray Brook, NY.
GEOFFREY J.L. BROWN, ESQ., Ass't United States Attorney, OF COUNSEL, HON. RICHARD S. HARTUNIAN, United States Attorney for the Northern District of New York, Syracuse, NY.
MEMORANDUM--DECISION and ORDER
DAVID N. HURD, United States District Judge.
Defendant Bobby Harrison (" Harrison" or " defendant" ), proceeding pro se, moved pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence of imprisonment following his plea of guilty to a one count information charging him with violating § § 841(a)(1), (b)(1)(B), and 846. The United States of America (the " Government" ) opposed the motion and defendant replied. Defendant also filed a supplement in further support of his § 2255 motion although not permitted. The motion was considered on its submissions and no oral argument was heard.
On September 20, 2012, defendant conspired with two others to purchase one kilogram of cocaine from a person who, unbeknownst to them, was a confidential informant. On September 24, 2012, defendant and the two other people arrived at an agreed upon location with $39,350 to meet the confidential informant and make the exchange. Upon producing the money, the three purchasers were apprehended by law enforcement. A subsequent search of the car in which they arrived revealed a loaded handgun behind the front passenger seat.
On September 25, 2012, Christina Cagnina, Esq. (" Attorney Cagnina" ) was assigned
as counsel to defendant. On April 12, 2013, defendant entered into a written plea agreement with the Government, and on the same day appeared via video conference to enter a plea of guilty. Defendant waived his right to appear in person, and was sworn prior to entering his plea. Pursuant to the written plea agreement, defendant pleaded guilty to a one count information charging him with conspiracy to possess with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § § 841(a)(1), (b)(1)(B), and 846.
The written plea agreement set out the terms relating to sentencing, appeal, and collateral attack of defendant's conviction and sentence. The agreement gave a detailed explanation of the penalties for conviction, including a mandatory minimum sentence of 120 months and eight years of supervised release. Defendant was subject to an enhanced mandatory minimum 120 month sentence because he has a prior felony drug conviction. On November 6, 2003, defendant was convicted in Cortland County Court of criminal possession of a controlled substance in the third degree.
The written plea agreement contained a " Waiver of Rights to Appeal and Collateral Attack," which stated that defendant " waives (gives up) any and all rights, including those conferred by . . . 28 U.S.C. § 2255, to appeal and/or collaterally attack" his conviction and any sentence of 120 months or less. Gov't Ex. 1 ¶ 7 (" Plea Agreement" ). In exchange for accepting the plea agreement, the Government agreed not to prosecute any other offenses based on conduct described in the information. Id. ¶ 2. At the plea colloquy on April 12, 2013, defendant affirmed under oath that he understood the conditions of his plea, including his sentence and his waiver of the right to appeal and/or collaterally attack his sentence. Gov't Ex. 2, Plea Proc. Tr. 13:13-8, April 12, 2013. Under questioning at this proceeding, he did not indicate that counsel's performance was unsatisfactory during the plea process or that his plea was in any way unknowing or involuntary. Id. 9:22-10:6, 10:16-18.
On August 16, 2013, defendant was sentenced to the mandatory minimum of 120 months in prison, followed by eight years of supervised release. Defendant did not file an appeal.
A. Legal Standard
A 28 U.S.C. § 2255 petitioner asks a court to " vacate, set aside, or correct" a conviction or sentence " imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). A § 2255 motion must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum allowed by law; or (4) the sentence is otherwise subject to collateral attack. Id.
Because Harrison is proceeding pro se, his submissions will be " liberally construed in his favor," Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995), and read to " raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). However, a court " need not assume the credibility of factual assertions, as it would in civil cases, where the assertions are contradicted by the record in the underlying proceeding." Puglisi v. United States, 586 F.3d 209, 214 (2d Cir. 2009).
" In [a] collateral attack upon his conviction, petitioner bears the burden of establishing by a preponderance of the evidence that he is entitled to relief." Burnell
v. United States, 1:06-CR-00497,
2009 WL 3698386, at *1 (N.D.N.Y. Nov. 2, 2009) (McAvoy, S.J.) (quoting United States. v. Gallo--Lopez, 931 F.Supp. 146, 148 (N.D.N.Y. 1996) (McAvoy, C.J.)). It is within a court's discretion whether to hold a hearing; a court may decide the issue " based on the record of the original proceedings and affidavits of the parties." Padin v. United States, 521 F.App'x 36, 38 (2d Cir. 2013) (summary order) (citing Chang v. United States, 250 F.3d 79, 86 (2d Cir. 2001)).
B. Harrison's Motion
Harrison's § 2255 motion claims that Attorney Cagnina was constitutionally ineffective because she: (1) failed to investigate his prior conviction; (2) failed to object to his improper sentence under the sentencing guidelines; and (3) failed to file a notice of appeal. Further, in defendant's reply, he also claims that due to Attorney Cagnina's ineffective assistance regarding her lack of investigation of his prior conviction and her failure to object to the sentencing enhancement, he did not enter into the plea agreement knowingly or voluntarily. The Government argues: (1) defendant waived his rights to collaterally attack or appeal his sentence; and (2) defendant did not receive ineffective assistance of counsel that would render his appeal waiver unenforceable.
To prevail on any of these ineffective-assistance arguments, Harrison must show: " (1) that [Attorney Cagnina's] performance fell below an 'objective standard of reasonableness,' and (2) that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Kieser v. New York, 56 F.3d 16, 18 (2d Cir. 1995) (per curiam) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). There is a " strong presumption" that counsel's assistance was reasonable, and " every effort [should] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."
Strickland, 466 U.S. at 689.
1. Failure to Investigate and Challenge Prior Conviction
Harrison argues that Attorney Cagnina failed to investigate whether his prior state court conviction of third degree possession of a controlled substance represented a conviction for possession with intent to distribute or merely a conviction for simple possession. He contends that his 2003 conviction was used to enhance the instant federal conviction pursuant 21 U.S.C. § 851, but had Attorney Cagnina investigated his 2003 conviction, she would have learned that the 2003 conviction was for only possession of a controlled substance and thus did not constitute a prior conviction for purposes of an enhanced sentence. According to defendant, he requested Attorney Cagnina research and obtain records pertaining to his 2003 conviction. Harrison contends that had she done so, she would have learned that he was not convicted of either " distribution" or " intent to distribute" a controlled substance, a necessary element of a " controlled substance offense" for purposes of calculating the sentencing enhancement under § § 4B1.1 and 4B1.2(b) of the United States Sentencing Guidelines (" U.S.S.G." ). Citing
his state court indictment for criminal possession of a controlled substance in the third degree from 2003, defendant points out that intent to sell or distribute was not an element of his indictment, and that he was thus not convicted of a " controlled substance offense" under § § 4B1.1 and 4B1.2(b). Harrison also asserts that Attorney Cagnina failed to make this argument to the court. He avers that had his prior conviction been investigated and the enhancement objected to, his sentence would have been 60 months rather than the mandatory minimum 120 months.
A defendant's waiver of the right to appeal or collaterally attack his sentence in a plea agreement is presumptively enforceable provided the waiver is both " knowing" and " voluntary." United States v. Coston, 737 F.3d 235, 237 (2d Cir. 2013) (per curiam); see also
United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011) (" We have 'repeatedly upheld the validity of [appeal] waivers' if they are 'knowingly, voluntarily, and competently provided by the defendant.'" ) (quoting United States v. Gomez--Perez, 215 F.3d 315, 318 (2d Cir. 2000) (alteration in original)).
Here, the plea agreement Harrison executed with the Government provided that defendant " waives any and all rights, including those conferred by . . . 28 U.S.C. § 2255, to appeal or collaterally attack his conviction and any sentence of imprisonment." During the plea proceeding on April 12, 2013, defendant affirmed that he had signed this plea agreement voluntarily, understood its terms, and that he was satisfied with Attorney Cagnina's advocacy:
THE COURT: Now, you are represented by your attorney Christina Cagnina?
THE DEFENDANT: Yes, Your Honor.
THE COURT: She was appointed by the court to ...