United States District Court, E.D. New York
MEMORANDUM AND ORDER
DORA L. IRIZARRY, District Judge.
Wadie Jaafar ("Petitioner") filed the instant action, pro se, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2255, vacating his sentence on the ground that he was denied his Sixth Amendment right to counsel and his Fifth Amendment right to due process. ( See Petition ("Pet."), Dkt. Entry No. 1.) The government opposes the Petition in its entirety. ( See Respondent's Opposition ("Opp'n"), Dkt. Entry No. 7.) For the reasons set forth below, the Petition is denied.
On March 11, 2010, Petitioner was arrested for his participation in a money laundering conspiracy and for trafficking counterfeit clothing. (Presentence Investigation Report ("PSR"), Opp'n App'x Ex. A, Dkt. Entry No. 8 at ¶ 29.) The charges stemmed from Petitioner's operation of a clothing store, Blu Gear, in Union City, New Jersey, where he sold counterfeit clothing. (Id. at ¶ 18.) He was also involved in transporting proceeds from the sale of those counterfeit goods to Lebanon with co-conspirator Younes El Saleh and a third individual. (Id. at ¶¶ 12, 13.) Petitioner and El Saleh supplied each other with counterfeit goods. (Id. at ¶ 15.) Petitioner also supplied his relative, Ayman Jaafar, with counterfeit goods, which Ayman sold in New York City. (Id. at ¶ 18.)
On October 29, 2009, the New York City Police Department ("NYPD") searched Petitioner's store and El Saleh's store and warehouse pursuant to search warrants. (Id. at ¶ 14-21.) The NYPD seized counterfeit clothing worth $411, 275 from Petitioner's store and counterfeit clothing worth $1, 158, 840 from El Saleh's store and warehouse, as well as accounting ledgers and other documents. (Id. at ¶ 20.)
On April 9, 2010, a grand jury indicted Petitioner for his participation in the money laundering conspiracy in violation of 18 U.S.C. §§ 1956(h), 1957(b), 1957(d)(1) and 3351, and trafficking counterfeit clothing in violation of 18 U.S.C. §§ 2, 2320(a), and 3351. (Opp'n at 4.) On January 13, 2011, Petitioner pled guilty before then-Magistrate Judge Andrew Carter to money laundering, in violation of 18 U.S.C. § 1956(h), for conspiring to launder more than $400, 000 worth of counterfeit clothing proceeds. (Plea Allocution Transcript ("Guilty Plea Tr."), Opp'n Ex. C at 21.)
Petitioner pled guilty pursuant to a written plea agreement. ( See Plea Agreement, Opp'n Ex. A.) Pursuant to the Plea Agreement, the parties estimated that, under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"), Petitioner's involvement in the laundering of more than $400, 000 of counterfeit clothing proceeds, inter alia, would result in a Guidelines Range of 37-46 months of imprisonment. Petitioner expressly waived his right to appeal or collaterally attack his conviction or sentence, if the court sentenced Petitioner to a term of imprisonment of 51 months or less. (Id. at ¶ 4.) The government agreed that no further criminal charges would be brought against Petitioner for trafficking counterfeit goods and laundering the proceeds of such activity during the period of January 1, 2009 to January 31, 2010. (Id. at ¶ 14) The government also agreed that it would take no position concerning where within the Guidelines Range the sentence should fall and would not move for an upward departure. (Id. )
During Petitioner's plea allocution, Petitioner stated, under oath, that he had discussed the Plea Agreement with his attorney and Petitioner understood it. (Guilty Plea Tr. at 6, 16.) Notably, Petitioner also stated that he understood that he could not "file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposes a term of imprisonment of fifty-one months or below." (Id. at 19.) Petitioner stated that he was willing to give up his right to trial and all other rights discussed. (Id. at 20.) Petitioner stated that he was "satisfied" with defense counsel's representation. (Id. ) The Magistrate Judge found "that Mr. Jaafar [was] competent to proceed and he [understood] the rights he'd be waiving up by pleading guilty" and recommended to this Court that Petitioner's plea be accepted. (Id. at 25.) On June 28, 2011, this Court accepted Petitioner's guilty plea. (Judgment of Conviction ("J. of Conviction"), Opp'n Ex. E at 1.)
Petitioner was sentenced on June 28, 2011. In determining the appropriate Guidelines Range applicable to Petitioner, the Court applied: (a) a base-offense level of eight ( see U.S.S.G. §§ 2S1.1(a)(1), 2B5.3(a); Plea Agreement at ¶ 2); (b) a 14-level enhancement based on a loss amount of $400, 000 as set forth in the Plea Agreement, which represented only the amount of counterfeit goods in Petitioner's possession, over the objection the United States Probation Department ("Probation") that the loss amount should be over $1.5 million, to account for all the goods in both Petitioner's and El Saleh's possession (Plea Agreement at ¶ 2; U.S.S.G. § 2B1.1(b)(1)(H)); (c) two levels were added for Petitioner's conviction under 18 U.S.C. § 1956; and a total of three levels were for Petitioner's timely acceptance of responsibility ( see U.S.S.G. § 2S1.1(b)(2)(B); U.S.S.G. § 3E1.1(a); Plea Agreement at ¶ 2). This resulted in a total offense level of 21. With Petitioner's criminal history Category of I, the court found that Petitioner's Guidelines range was 37-46 months' imprisonment, the same range estimated in the Plea Agreement. (U.S.S.G. § 5A; Plea Agreement at ¶ 2.) After considering the factors under 18 U.S.C. § 3553(a), the court sentenced Petitioner to 37 months' imprisonment followed by three years of supervised release. (J. of Conviction at 2-3.) Petitioner did not file a direct appeal. (Opp'n at 8.)
On June 25, 2012, Petitioner filed the instant action, pro se, challenging the validity of his guilty plea by arguing that he was denied the effective assistance of counsel and due process. Specifically, Petitioner contends that he received ineffective assistance of counsel in violation of the Sixth Amendment because his attorney during the criminal proceedings failed to: (1) object to the amount of money that Petitioner was held accountable for laundering; (2) object to the money laundering charge; (3) seek a downward departure in his sentence pursuant to U.S.S.G. § 2S1.1(b)(2)(B); (4) adequately communicate with and advise him; (5) inform him of the consequences of the appeal and collateral attack waivers in the Plea Agreement; and (6) provide him with an Arabic translator. (Pet.'s Memorandum of Law in Support ("Pet.'s Mem."), Dkt. Entry No. 1-1 at 6-9.) Petitioner also asserts that that he was deprived of due process in violation of the Fifth Amendment because the Magistrate Judge did not inform him of the waiver of his right to appeal and did not provide him with an Arabic translator. (Id. at 9-10.) The government opposes the Petition contending: (1) Petitioner's claims are procedurally barred because he waived his right to appeal or to collaterally attack his conviction pursuant to the Plea Agreement; (2) Petitioner's Sixth Amendment claim is procedurally barred because he did not raise it on direct appeal; and (3) Petitioner's claims lack merit. (Opp'n at 9, 12, 15.)
I. Petitioner Waived His Right to Seek Habeas Relief
Generally, the Second Circuit rejects attempts to challenge a conviction when a petitioner waived that right pursuant to a written plea agreement. See Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001); United States v. Stevens, 66 F.3d 431, 437 (2d Cir. 1995); Torres-Cuesta v. United States, 2010 WL 3928588, at *3 (E.D.N.Y. Sept. 30, 2010) (finding that "[i]t is well settled in this circuit that an agreement waiving the right to appeal a sentence is enforceable as long as it was knowing and voluntary"). Courts also have enforced such waivers when, pursuant to a written plea agreement, a petitioner agrees not to challenge a sentence within a stipulated Guidelines range. See Garcia-Santos, 273 F.3d at 508-09 (finding a petitioner's waiver of appeal and collateral attack binding in a § 2255 proceeding when the imprisonment term is within the stipulated Guidelines); United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995) (finding that a petitioner's "explicit undertaking in the [Plea] Agreement not to appeal a sentence that fell within a guideline range" precluded him from both directly appealing or collaterally challenging his sentence).
However, the Second Circuit has found that "a plea agreement containing a waiver of the right to appeal is not enforceable where the defendant claims that the plea agreement was entered into without effective assistance of counsel." United States v. Hernandez, 242 F.3d 110, 113-114 (2d Cir. 2001) (citing United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998)). "[A] waiver of the right to appeal should only be enforced by an appellate court if the record clearly demonstrates' that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary." United States v. Ready, 82 F.3d 551, 557 (2d Cir. 1996) (citing United States v. Schmidt, 47 F.3d 188, 190 (7th Cir. 1995)). Therefore, a waiver is not enforceable, if a defendant can demonstrate that he unknowingly or involuntarily agreed to the plea directly due to the ineffective assistance of his counsel during the negotiation of the plea agreement. See Hernandez, 242 F.3d at 113-14.
In the context of determining the voluntariness of a plea, "[a] defendant's bald statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw [the] guilty plea." United States v. Gonzalez, 647 F.3d 41, 56-57 (2d Cir. 2011) (citations and quotation marks omitted). "[I]n the absence of any credible evidence to the contrary the court is permitted to rely upon the defendant's sworn statements, made in open court, that: his plea was knowing and voluntary... [, ] he discussed the plea with his attorney, he knew that he could not withdraw the plea, he knew that no promises had been made except those contained in the plea agreement, and he was satisfied with the advice of counsel.'" Pringle v. United States, 2011 WL 3792820, at *3 (S.D.N.Y. Aug. 25, 2011) (quoting United States v. Soler, 289 F.Supp.2d 210, 216 (D. Conn. 2003)).
Here, the record is clear that Petitioner received and signed the written plea agreement, and knowingly and voluntarily waived his right to seek habeas relief. ( See Guilty Plea Tr. at 6, 16, 19, 20.) The Magistrate Judge explicitly verified that Petitioner was aware of the waiver. ( See id. at 19.) The Magistrate Judge questioned Petitioner about the waiver of his right to appeal in this case and the record indicates that Petitioner understood the significance of the waiver. ( See id. ) Petitioner's counsel also explained the Plea Agreement to Petitioner, including "what giving up the right to appeal and the right to collaterally attack his sentence entailed." (Affidavit of Petitioner's Attorney ("Atty. Aff."), Opp'n Ex. F at 4.) Petitioner "was not concerned about giving up these rights, " he understood that the government's case was strong, and he was satisfied that he was only being held responsible for the counterfeit items in his possession. (Id. ) Petitioner acknowledged that he: (1) had discussed the Plea Agreement with defense counsel; (2) had not been made any promises; and (3) was satisfied with counsel's representation. (Guilty Plea Tr. at 6, 7, 16, 20.)
Notably, Petitioner also acknowledged that he understood he could not appeal if the court imposed a sentence of 51 months or less. (Id. at 19.) Petitioner responded, "Yes" when asked, under oath, if he was "willing to give up his rights to trial and all the other rights  discussed" ( id. at 20) and acknowledged that he could not withdraw his plea (Plea Agreement ¶ 3). Petitioner also stated that he did not have any questions for the Magistrate Judge or counsel. (Guilty Plea Tr. at 20.) These statements, given under oath, demonstrate that Petitioner knowingly and voluntarily pled guilty, and there is no credible evidence to the contrary. Petitioner's sentence of 37 months of imprisonment was below the sentence stipulated in the Plea Agreement. Accordingly, Petitioner knowingly and voluntarily waived his right to challenge his conviction and sentence. For this reason alone, the Petition is denied.
II. Petitioner's Claim of Ineffective Assistance of Counsel Lacks Merit
Assuming arguendo, that Petitioner had not waived his right to habeas relief, his Sixth Amendment claims are substantively deficient. Petitioner claims that his counsel was ineffective because counsel failed to: (1) object to the amount of laundered money that Petitioner was held accountable for; (2) object to the money laundering charge; (3) seek a downward departure at sentencing; (4) adequately communicate with and advise Petitioner; (5) inform Petitioner of the Plea Agreement implications regarding his waiver of right ...