United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge.
pro se, movant Rasheed Gray (“Gray” or
“movant”), a federal prisoner, has requested
permission to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. Doc. 235. The Court has reviewed
plaintiff's submissions in connection with his motion to
proceed in forma pauperis, finds that he meets the
statutory requirements, and therefore grants his request to
proceed as a poor person.
October 15, 2013, Gray was convicted, upon his plea of
guilty, of one count of conspiracy to possess with intent to
distribute five kilograms or more of cocaine, in violation of
21 U.S.C. § 846. See doc. 113. On April 28, 2014, Gray
was sentenced to a term of 66 months imprisonment with a
three-year term of supervised release. See doc. 194.
Presently before the Court is Gray's motion to vacate his
sentence pursuant to 28 U.S.C. § 2255. Doc. 238. For the
reasons discussed below, plaintiff's motion is denied.
conviction arose out of a series events which occurred
between approximately November 2011 through March 30, 2012.
Gray, along with seven co-defendants, conspired to possess
five kilograms or more of cocaine. A confidential informant
advised the DEA that Gray and an uncharged co-conspirator
operated a cocaine trafficking organization which was
responsible for importing approximately 50 kilograms of
cocaine per month to Buffalo, New York from Chicago,
Illinois, utilizing Mexican couriers to transport cocaine and
money to and from Buffalo.
plea agreement contained a standard waiver of appellate and
collateral attack rights. Specifically, the plea agreement
stated that movant “knowingly waive[d] the right to
appeal and collaterally attack any component of a sentence
imposed by the Court which falls within or is less than the
sentencing range for imprisonment, a fine and supervised
release set forth in Section III, ¶ 15, above,
notwithstanding the manner in which the Court determines the
sentence.” Doc. 113 at 7. Subsection III of the plea
agreement stated that the parties understood that Gray
carried an adjusted offense level of 36, but conceded to a
three-level downward adjustment for the acceptance of
plea, Gray testified that he understood that he waived his
right to appeal and collaterally attack his sentence. He also
testified that he had discussed the plea agreement with his
attorney and that he was satisfied and had no complaints
regarding his attorney's advice and counsel. On April 18,
2014, Gray was sentenced to a term of imprisonment of 66
months with a three-year period of supervised release. The
Court (Arcara, J.) granted a five-level reduction of his
offense level at sentencing, due to Gray's acceptance of
responsibility and cooperation with the government.
March 16, 2015, Gray filed the instant motion pursuant to 28
U.S.C. § 2255 to vacate, set aside, or correct his
sentence. Gray raises three grounds, arguing that (1) his
conviction was obtained pursuant to an unconstitutional
search and seizure; (2) his conviction was obtained by a
violation of the privilege against self-incrimination; and
(3) he was denied effective assistance of counsel.
Waiver of Collateral Attack in the Plea Agreement
the Court finds that Gray's waiver of collateral attack
was entered knowingly and voluntarily. See United States
v. Roque, 421 F.3d 118, 122 (2d Cir. 2005) (finding that
waiver was knowing and voluntary where there was “no
evidence [in the] record to suggest that [defendant] was
ignorant of his legal and constitutional rights in their
then-present state”). Petitioner's waiver precludes
the claims brought in grounds one and two of his petition,
the facts of which transpired prior to his plea. See
Summers v. United States, 2014 WL 4829207, *4
(W.D.N.Y. Sept. 29, 2014) (finding that valid collateral
attack waiver applied to grounds arising both before and
after plea agreement) (citing Garcia-Santos v. United
States, 273 F.3d 506, 509 (2d Cir. 2001)).
Ineffective Assistance of Counsel
argues that his counsel was ineffective because he informed
counsel of his beliefs that he was unconstitutionally
searched and that DEA agents denied him the right to counsel
in an interrogation, yet counsel advised him to plead anyway.
He also argues that counsel “did not explain [the] plea
agreement . . . and his reason was ...