United States District Court, S.D. New York
OPINION AND ORDER
DENISE COTE, District Judge.
On January 23, 2015, Jose Ramon Gonzalez ("Gonzalez") filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. 2255. For the following reasons, the petition is denied.
Indictment 11cr1072 charged scores of defendants with illegal activity in connection with a multistate scheme to divert prescription drugs and resell them. The diverted drugs included drugs used to treat HIV/AIDS, and resulted in millions of dollars of loss to federal health care benefit programs.
Gonzalez was in the Dominican Republic at the time the charges were first made public. He surrendered on September 17, 2012, and entered a plea of guilty before Magistrate Judge Frank Maas on July 29, 2013. As of that date, trial was scheduled to begin on September 16, 2013. This Court accepted the plea on August 13, 2013.
The plea was entered pursuant to a plea agreement with the Government ("Agreement"), in which the parties stipulated to a sentencing guidelines range of 46 to 57 months' imprisonment. Pursuant to the Agreement, Gonzalez waived the right to challenge a sentence at or below 57 months' imprisonment by appeal or through a collateral attack. At the plea allocution, Gonzalez acknowledged the waiver.
On January 17, 2014, this Court imposed sentence on Gonzalez. He was sentenced principally to a term of imprisonment of 46 months.
In advance of the sentence, defense counsel submitted a five page letter requesting a sentence of six months home confinement. The letter stressed the defendant's work history, his large family, his self-surrender, and his effort to assist the Government in connection with the arrest of co-defendants. The submission included more than fifteen letters of support for the defendant, including from the defendant's employer and a member of the New York City Council.
The Presentence Report ("PSR") had recommended a sentence of 46 months' imprisonment. The Report had been translated to the defendant and defense counsel discussed each page with Gonzalez. The PSR recited the defendant's self-surrender, family circumstances and efforts to assist the Government, among many other things.
During the proceedings in the district court, including at the entry of the plea and at sentence, Gonzalez was represented by retained counsel Conway Martindale II. Gonzalez indicated during his plea allocution that he was satisfied with his counsel and the advice his counsel had given him. Gonzalez made no complaint to the Court about counsel during the sentencing proceeding or at any time prior to sentence.
Attorney Carlos Gonzalez requested on February 12, 2014, that this Court extend the time for Gonzalez to file an appeal. His letter explained that Martindale had sought assistance from attorney Gonzalez in contacting defendant Gonzalez regarding the filing of an appeal. This Court granted the request on February 14.
On February 24, 2014, attorney Gonzalez filed a notice of appeal for Gonzalez. On April 4, while that appeal was pending, attorney Gonzalez filed a habeas petition on behalf of Gonzalez that is virtually identical to the one at issue here. On April 9, this Court dismissed the petition without prejudice in light of the pending appeal. Gonzalez filed a motion with the Court of Appeals on June 18, 2014, to withdraw his notice of appeal. That motion was granted on January 12, 2015.
On January 23, 2015, Gonzalez filed the instant petition. It is also signed by attorney Carlos Gonzalez of Gonzalez Law Associates.
The petition seeks to have Gonzalez resentenced due to ineffective assistance of counsel in connection with the sentence. It does not ...