United States District Court, E.D. New York
GERARDO FLORES CARRETO, Pro Se Atwater, CA, for the Petitioner.
LORETTA E. LYNCH, ESQ., United States Attorney TARYN A. MERKL, ESQ., Assistant United States Attorney Eastern District of New York Brooklyn, NY, for the Respondent.
MEMORANDUM AND ORDER
FREDERIC BLOCK, Senior District Judge.
Petitioner Gerardo Flores Carreto ("Carreto") moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, his petition is denied.
Carreto was convicted of the following offenses: (1) conspiracy to commit sex trafficking; (2) sex trafficking; (3) attempted sex trafficking; (4) forced labor; (5) transportation in interstate or foreign commerce for the purposes of engaging in prostitution; (6) conspiracy to import aliens for immoral purposes; (7) importation of aliens for immoral purposes; (8) alien smuggling; and (9) alien smuggling for financial gain. He was sentenced to 600 months' imprisonment. His sentence and conviction were affirmed on appeal. See United States v. Carreto, 583 F.3d 152 (2d Cir. 2009).
In his § 2255 motion, Carreto contends that his counsel, S. Michael Musa-Obregon ("Musa-Obregon"), was ineffective in the following respects: (1) inadequately counseling him during plea negotiations, and (2) failing to explain the sentencing consequences of his guilty plea. Because he moves pro se, the Court must "read his supporting papers liberally [and] interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
To prevail on his ineffective assistance of counsel claims, Carreto must satisfy the familiar Strickland test by showing "(1) that his attorney's performance fell below an objective standard of reasonableness, and (2) that as a result he suffered prejudice." United States v. Jones, 482 F.3d 60, 76 (2d Cir. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "[A] reviewing court must indulge a strong presumption that counsel's [performance] falls within the wide range of reasonable professional assistance." United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004). Prejudice is shown only if "there is a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different." Wiggins v. Smith, 539 U.S. 510, 534 (2003). Either Strickland requirement may be used to dispose of a claim. See Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be followed.").
A. Plea Negotiations
Carreto contends that Musa-Obregon provided inadequate counsel which led him to eschew a favorable plea offer. His vague and conclusory averments do not establish deficient performance. Moreover, he has not established prejudice.
Before trial, the government made a global plea offer. Carreto and his codefendants Josue Carreto ("Josue Carreto") and Daniel Perez-Alonso ("Perez-Alonso") (collectively, "defendants") were required to plead guilty by February 18, 2005. On February 16, 2005, the Court held a conference to discuss plea negotiations. During this conference, Perez-Alonso stated he would not accept the offer. The Court noted that the government had "the absolute right to make [a]... global plea offer" and that the case would proceed to trial if all defendants did not accept it. Hr'g. Tr. (Feb. 16, 2005) at 15. On February 17, 2005, the Court held another conference at which Josue Carreto and Perez-Alonso declared that they would not accept the offer. In response, the government revoked the offer.
To show prejudice from ineffective assistance of counsel during plea negotiations, a defendant must "demonstrate a reasonable probability that the plea would have been entered without the prosecution canceling it...." Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012); see also Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012) ("[A] defendant must show that but for the ineffective assistance of counsel there is a reasonable probability that the plea offer would have been presented to the court ( i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances)...."). Here, the government withdrew the plea ...