United States District Court, E.D. New York
Leonard Tyson, Jr. Pro Se Prisoner, F.C.I. Fort Dix Federal
Correctional Institution Inmate Mail/Parcels
States Attorney's Office Eastern District of New York
Attorneys for the Respondent, Charles N. Rose, Assistant U.S.
MEMORANDUM OF DECISION & ORDER
D. SPATT, United States District Judge
October 14, 2010, Leonard Tyson, Jr. (the
“Petitioner”) pled guilty to one count of
conspiracy to distribute five kilograms or more of cocaine.
Under the plea agreement, he waived his right to file an
appeal or otherwise challenge his sentence or conviction if
the Court sentenced him to 188 months or less. The Court
imposed a 135-month prison sentence.
the provisions of 28 U.S.C. § 2255, the Petitioner moves
to vacate his sentence and conviction on two grounds: (1) his
waiver was not made knowingly, voluntarily, and competently;
and (2) his trial counsel rendered ineffective assistance.
The Petitioner also requests an evidentiary hearing to
further develop his case. For the reasons set forth below,
the Petitioner's motion is denied in its entirety.
Court assumes familiarity with the facts and procedural
history of this case but summarizes the relevant details
below. Between January 1, 2009 and June 25, 2009, the
Petitioner participated in a large-scale cocaine trafficking
organization on Long Island. After his arrest, the Federal
Bureau of Investigation searched his apartment and found,
among other things, a Ruger .44 Magnum revolver.
Petitioner was indicted on July 23, 2009. (See
Indict., Dkt. No. 5-1.) He was charged with four counts,
including conspiracy to distribute cocaine in violation of 21
U.S.C. §§ 841(b)(1)(A)(ii)(II) & 846
(“Count One”). On March 2, 2010, the grand jury
returned a superseding indictment, which largely paralleled
the original. (See Superseding Indict., Dkt. No.
first, the Petitioner was represented by court-appointed
counsel William Wexler, Esq., who handled discovery.
(See Discovery Ltrs., Case No. 2:09-cr-00515-ADS-1,
Dkt. Nos. 42, 50, 55.) On December 31, 2009, the Petitioner
retained Aaron M. Goldsmith, Esq. and Louis V. Fasulo, Esq.
(the “trial counsel”). On June 30, 2010, they
filed a motion to suppress the Ruger .44 Magnum revolver and
drugs seized at the Petitioner's apartment. (See
Case No. 2:09-cr-00515-ADS-1, Dkt. No. 124.) However, on
October 7, 2010, the Petitioner withdrew the motion and
consented to a plea agreement.
October 14, 2010, the Petitioner signed a plea agreement with
the Government, which provided that he would plead guilty to
Count One. The Government agreed to dismiss the remaining
three counts, which were firearm charges, but the plea
agreement did include a two- point enhancement for possession
of a dangerous weapon. (Plea Agmt., Dkt. No. 5-3, ¶ 2.)
The Petitioner “agree[d] not to file an appeal or
otherwise challenge by petition pursuant to 28 U.S.C. §
2255 or any other provision the conviction or sentence in the
event that the Court impose[d] a term of imprisonment of 188
months or below.” (Plea Agmt. ¶ 4.)
October 14, 2010, a plea hearing took place before Magistrate
Judge William Wall. The following exchange occurred:
THE COURT: Have you reviewed [the plea agreement] with Mr.
Fasulo and do you understand it?
DEFENDANT: Yes, your Honor.
THE COURT: And does that agreement fully and accurately
reflect the agreement that you have reached with the
DEFENDANT: Yes, your Honor.
THE COURT: Has anyone made any promises to you as to what
your sentence will be?
DEFENDANT: No, your Honor.
THE COURT: Has anyone made any promises to you that have
caused you to ...