United States District Court, S.D. New York
MIRIAM GOLDMAN CEDARBAUM, District Judge.
Petitioner Henry Pena moves pursuant to 28 U.S.C. § 2255 to correct, vacate, or set aside his convictions for cocaine conspiracy under 21 U.S.C. §§ 841, 846 and bail jumping under 18 U.S.C. § 3146. Pena pled guilty to both crimes and was sentenced to a combined term of 117 months' imprisonment. Pena argues here that (1) his counsel was ineffective in causing Pena to plead guilty, (2) the drug statute is unconstitutional, (3) his counsel was ineffective at sentencing, and (4) his guilty plea to bail jumping was involuntary. For the following reasons, the motion is denied.
In 1993, Pena and several co-conspirators agreed to buy five kilograms of cocaine from a confidential informant for $100, 000. The confidential informant displayed the cocaine to the buyers, including Pena, and a co-conspirator showed the informant two bags of cash from the trunk of his car. Pena and co-conspirators were subsequently arrested. Approximately $92, 000 was seized.
Pena was charged with conspiracy to distribute at least five kilograms of cocaine, an offense that carries a mandatory minimum ten-year prison sentence. On the day of trial, Pena waived indictment and pled guilty, pursuant to a plea agreement, to conspiracy to distribute at least 500 grams of cocaine, which carries a mandatory minimum five-year prison sentence. An Information charged Pena with the conspiracy to distribute 500 grams of cocaine, but also included a "to wit" clause that mistakenly referred to "five kilograms of heroin." The Court pointed out the error at the plea hearing, and the Government clarified that the "to wit" clause should state "five kilograms of cocaine."
Pena was free on bail pending sentencing but failed to appear for sentencing in September 1994. The Court issued a bench warrant for his arrest. He was not arrested until August 2010.
After he was detained, Pena moved to withdraw his guilty plea due to ineffective counsel. The motion was denied on the basis of the fugitive disentitlement doctrine.
In March 2011, Pena pled guilty to bail jumping. The Court asked Pena, "Do I understand, Mr. Pena, that you do want to plead guilty to the charge of failing to appear for sentencing after you pleaded to the other charge and you were given a date to return to court for sentencing and you failed to return?" Pena answered yes.
At sentencing, Pena's Guidelines range for the two offenses combined was calculated as 151 to 188 months' imprisonment. Pena was sentenced to 87 months for the drug offense, and 30 months for the bail jumping, for a below-Guidelines total term of 117 months' imprisonment.
Pena appealed. He argued that (1) the Court erred in denying his motion to withdraw his plea on the grounds that the Information lacked sufficient factual basis and that his lawyer failed to inform him of the immigration consequences of the plea, and (2) his sentence was procedurally unreasonable.
The Second Circuit affirmed, stating that the District Court did not abuse its discretion by applying the fugitive disentitlement doctrine to deny the motion to withdraw Pena's plea.
Pena makes four general arguments in his petition. Each one lacks merit.
Pena first argues that his drug conviction should be overturned due to his counsel's ineffectiveness in (1) allowing the Government to fix the typographical error in the Information, (2) allowing Pena to waive indictment, (3) failing to object to an insufficient allocution, (4) failing to inform Pena of the elements of the ...