United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, UNITED STATES DISTRICT JUDGE
pro se, movant Alfredo Alvarez-Martinez
(“Alvarez-Martinez” or “movant”), a
federal prisoner, moves this Court to vacate his sentence
pursuant to 28 U.S.C. § 2255. Doc. 79. Movant is
incarcerated pursuant to a judgment, entered May 30, 2014,
convicting him of one count of possession with intent to
distribute and distribution of 100 grams or more of heroin,
in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B), and three counts of possession of a firearm in
furtherance of drug trafficking, in violation of 18 U.S.C.
§ 924(c)(1). For the reasons discussed below,
movant's motion is denied.
December 20, 2013, movant pled guilty to the charges outlined
above. His 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, ¶ 14,
above, notwithstanding the manner in which the Court
determines the sentence.” Doc. 58 at 9. Subsection III
of the plea agreement stated the parties' understanding
that movant's aggregate sentencing range would be a term
of imprisonment of 123 to 138 months, a fine of $10, 000 to
$5, 000, 000, and a term of supervised release of five years.
plea proceeding, movant testified that he understood his plea
agreement included a waiver of appeal and collateral attack.
He also testified that no one had forced or threatened him to
plead guilty, that he had discussed the plea agreement with
his attorney, and he understood the consequences of the plea.
On May 28, 2014, movant was sentenced to 123 months
imprisonment and three years of supervised release.
filed the instant motion on April 21, 2015, raising claims of
ineffective assistance of counsel and arguing that his
sentence was excessive. On July 1, 2015, the Federal Public
Defender, appearing on movant's behalf for the limited
purpose of the supplemental motion, moved for a reduction of
movant's sentence pursuant to 18 U.S.C. § 3582(c).
Doc. 84. The Court (Arcara, J.) granted the supplemental
motion on March 24, 2016, and reduced movant's sentence
to 120 months. Doc. 93.
before the Court are movant's (appearing pro se)
remaining claims regarding ineffective assistance of counsel.
Specifically, movant argues that counsel was ineffective for:
(1) failing to move for suppression of evidence based on a
warrantless search and seizure; (2) failing to challenge the
weight of heroin charged in the indictment; and (3) coercing
movant into pleading guilty.
the Court finds that movant'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)).
arguments that counsel was ineffective for failure to file a
suppression motion and failure to challenge the weight of
drugs charged in the indictment relate to the events which
occurred prior to the plea and which did not involve the
process by which the plea was procured. Therefore, they are
barred by his collateral attack waiver. 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)).
final argument, that counsel was ineffective because he
allegedly coerced movant into pleading, is unpersuasive. In
order to prove ineffective assistance of counsel, a defendant
must show (1) “that counsel's representation fell
below an objective standard of reasonableness;” and (2)
“that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Strickland
v. Washington, 466 U.S. 668, 688 (1984). Where a
defendant claims that counsel was ineffective in recommending
a guilty plea, “in order to satisfy the
‘prejudice' requirement, the defendant must show
that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). Significantly, movant
does not provide any factual explanation as to how his
counsel coerced him into pleading guilty, merely alleging
that the plea was coerced “contrary to the
facts.” Doc. 79 at 5.
noted above, during his plea colloquy, movant confirmed that
he had discussed the plea with counsel and that he understood
each provision of the written plea agreement. He specifically
testified that he had not been threatened or coerced to enter
his plea. “Solemn declarations in open court carry a
strong presumption of verity. The subsequent presentation of
conclusory allegations unsupported by specifics is subject to
summary dismissal, as are contentions that in the face of the
record are wholly incredible.” Blackledge v.
Allison, 431 U.S. 63, 74 (U.S. 1977); see also Cook
v. Bradt, 2009 WL 3334792, *6 (W.D.N.Y. Oct. 9, 2009)
(“The transcripts of the plea colloquy establish that
petitioner's acceptance of the plea agreement was in fact
knowing and voluntary, where petitioner answered
affirmatively that he freely and voluntarily entered the plea
without any form of coercion and was explained in detail the
rights that he waived.”). Movant's claim that he
received ineffective assistance of counsel is ...