United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, UNITED STATES DISTRICT JUDGE
pro se, movant Ramon Antonio Perez
(“Perez” or “movant”), a federal
prisoner, moves this Court to vacate his sentence pursuant to
28 U.S.C. § 2255. Doc. 44. Movant is incarcerated
pursuant to a judgment, entered December 24, 2014, convicting
him of re-entry of a removed alien subsequent to a conviction
for an aggravated felony, in violation of 8 U.S.C.
§§ 1326(a) and 1326(b)(2). For the reasons
discussed below, Perez's motion is denied.
17, 2014, Perez pled guilty pursuant to a plea agreement. The
agreement included a standard waiver of collateral attack
rights, under which Perez “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, ¶ 11, above,
notwithstanding the manner in which the Court determines the
sentence.” Doc. 31 at 8. Subsection III of the plea
agreement stated the parties' understanding that
Perez's aggregate sentencing range would be a term of
imprisonment of 46 to 57 months, a fine of $7, 500 to $75,
000, and a one to three-year period of supervised release.
plea proceeding, Perez testified that he understood his plea
agreement included a waiver of appeal and collateral attack.
The prosecutor explained at the plea that the collateral
attack waiver would apply even “in the event that in
the future, he [became] aware of a previously unknown fact or
a change in the law which he believe[d] would justify a
decrease in his sentence.” Doc. 51 at 14. Perez also
testified that had discussed the plea agreement with his
attorney and he understood the consequences of the plea. On
December 1, 2014, the Court (Arcara, J.) sentenced Perez to
48 months with a three-year term of post-release supervision.
Perez filed the instant motion on April 3, 2015, arguing that
trial counsel was ineffective.
the Court finds that Perez'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
his claim of ineffective assistance, because the claim does
not involve “the process by which the waiver has been
procured, here, the plea agreement.” Frederick v.
Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d
Cir. 2002), cert. denied, 537 U.S. 1146 (2003); see
also 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)).
event, Perez's ineffective assistance claim - that
counsel was ineffective for failure to file a “fast
track” motion - is meritless. At the time relevant to
this case, the United States Attorney's Office's fast
track policy provided that eligible defendants could receive
a benefit of a motion by the government (not binding upon the
Court) for either a two-level or four-level downward
departure from the applicable Guidelines range if, among
other things, (1) the defendant agreed to plead guilty to
illegal re-entry within 30 days of being taken into custody
on that charge, and (2) the defendant was not disqualified by
his criminal history or other factors. As relevant to this
case, a defendant was disqualified from fast track
consideration if his criminal history included prior felony
convictions of drug trafficking; he had two or more previous
deportations; and/or where the defendant had one or more
prior convictions of illegal re-entry pursuant to § 8
U.S.C. § 1326.
respondent points out, several disqualifiers applied to Perez
and barred him from consideration for the fast track program.
First, Perez did not plead guilty until nearly 18 months
after being taken custody on that charge. Second, Perez's
plea agreement secured him the right to request a downward
departure from his recommended sentencing range. Third, Perez
had a prior drug trafficking conviction, a prior conviction
of illegal re-entry in violation of 8 U.S.C. §§
1326(a) and (b), and two previous deportations. Therefore,
any request by Perez's counsel for a fast track departure
would have been meritless. Counsel cannot, of course, be
faulted for failing to make a meritless motion. See
DeMedeiros v. United States, 2016 WL 7187521, *2
(W.D.N.Y. Dec. 12, 2016) (finding that counsel's failure
to make a meritless motion for fast track consideration did
not constitute ineffective assistance). Accordingly,
Perez's motion is denied.
motion to vacate and correct his sentence (Doc. 44) is
denied. The Court finds that petitioner has failed to make a
substantial showing of the denial of a constitutional right,
see 28 U.S.C. § 2253(c)(2), and accordingly the Court
denies a certificate of ...