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Lopez v. United States

United States District Court, S.D. New York

April 20, 2017

EDWIN LOPEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION & ORDER

          KIMBA M. WOOD, UNITED STATES DISTRICT JUDGE.

         Petitioner Edwin Lopez has filed a motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255, alleging that his trial attorney, Jay Goldberg, rendered ineffective assistance of counsel by failing to make certain arguments at sentencing and failing to file a notice of appeal. Petition, Dkt. No. 74. For the reasons stated herein, his petition is DENIED.

         I. BACKGROUND

         On October 10, 2013, a grand jury in this District returned an indictment charging Petitioner and one other defendant with one count of participating in a conspiracy to distribute and to possess with intent to distribute one kilogram and more of mixtures and substances containing a detectable amount of heroin, and one count of distributing and possessing with the intent to distribute the same. Dkt. No. 9. The charges arose out of an interaction between the Petitioner and a cooperating witness on July 12, 2013, in which Petitioner offered to sell the cooperating witness a kilogram and a half of heroin. Complaint, Dkt. No. 1 ¶ 9. On April 28, 2014, the Petitioner appeared before Magistrate Judge Andrew J. Peck and pled guilty to Count One of the indictment pursuant to a plea agreement. During the guilty plea allocution, the Petitioner was questioned extensively on his understanding of the plea agreement, the stipulated Guidelines range for his crime, and his agreement to waive his rights to directly appeal or collaterally attack his conviction or sentence if he was given a sentence within or below the stipulated Guidelines range. Plea Transcript ("Plea Tr."), Dkt. No. 39, 10-13. At the end of the allocution, Petitioner confirmed his desire to plead guilty. Id. at 13. On September 30, 2013, the undersigned accepted Petitioner's guilty plea. Dkt. No. 51.

         On October 2, 2014, Petitioner and Mr. Goldberg appeared before this court for sentencing. Petitioner requested a two-level variance based on a new amendment to the United States Sentencing Guidelines ("Amendment 782") that was set to take effect on November 1st of that year. Sent. Tr., Dkt. No. 55 at 6.[1] The Court granted that request, resulting in a lower Guidelines range of 57 to 71 months. Id. at 6. The Court sentenced the Petitioner to 57 months of imprisonment. Id. at 7-8.

         On January 7, 2015, Petitioner filed a motion pursuant to Title 18, United States Code, Section 3582(c)(2), seeking the same Amendment 782 reduction he had been given at sentencing. Dkt. No. 80. Because Petitioner had already benefitted from the Amendment, the Court denied the motion. Dkt. No. 81.

         On August 13, 2015, Petitioner filed this motion, seeking to have his sentence vacated pursuant to Title 28, United States Code, Section 2255. Petitioner contends that Mr. Goldberg violated his Sixth Amendment right to effective assistance of counsel in two ways. First, Petitioner argues that his counsel promised to argue for a minimal role adjustment leading up to and on the date of Petitioner's sentencing, and did not. Pet. Mem. 6-9. Second, Petitioner argues that his counsel failed to file a notice of appeal after Petitioner requested that he do so. Id. at 11.

         IL LEGAL STANDARD

         To prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy the two-pronged standard established in Strickland v. Washington, 466 U.S. 668 (1984), by showing both (1) "that counsel's representation fell below an objective standard of reasonableness, " and (2) "that counsel's deficient performance prejudiced" the petitioner. Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000) (internal quotation marks omitted). Although courts must consider both prongs of the Strickland test, the Supreme Court has explained that "if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland, 466 U.S. at 697.

         Prevailing on a Strickland claim is not easy. In order to "give appropriate deference to counsel's independent decisionmaking, " courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Parisi v. United States, 529 F.3d 134, 141 (2d Cir. 2008) (internal quotation marks omitted). Similarly, in establishing prejudice in satisfaction of the second prong of Strickland, a Petitioner bears a "heavy burden." Strickland, 466 U.S. at 692. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test." Strickland at 693. Rather, a Petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland at 694.

         To establish prejudice in the context of a guilty plea, a petitioner "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). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; Flores v. Demshie, 215 F.3d 293, 304 (2d Cir. 2000). Similarly, with regard to counsel's failure to file an appeal, "a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient [advice], he would have timely appealed." Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000).

         III. DISCUSSION

         Minimal Role Reduction

         The Petitioner alleges that his guilty plea was "unknowingly, unintentionally and unintelligently entered [into]" due to counsel's failure to argue for a downward departure pursuant to United States Sentencing Guideline ("U.S.S.G.") § 3B1.2, based on Petitioner's minimal role in the offense. Pet. Mem. at 6-7. Petitioner claims a he played minor role based on the fact that he merely transported, rather than distributed or sold, the illegal narcotics at issue. Id. at 8. Petitioner ...


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