United States District Court, S.D. New York
OPINION & ORDER
M. WOOD, UNITED STATES DISTRICT JUDGE.
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.
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.
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. 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.
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.
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.
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
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.
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).
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.