United States District Court, S.D. New York
MEMORANDUM AND ORDER
KEVIN CASTEL UNITED STATES DISTRICT JUDGE.
Reginald Kelley, who is proceeding on his own behalf pro
se, moves to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. § 2255. On March 6, 2015, the
defendant pled guilty pursuant to a plea agreement to one
count of theft of government funds, in violation of 18 U.S.C.
§ 641, and one count of felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). On July
23, 2015, the defendant was sentenced to 108 months'
imprisonment and three years of supervised release. As
stipulated by the parties in the defendant's plea
agreement, the defendant's applicable Guidelines range
was 140 to 175 months' imprisonment. Kelley did not
not entirely clear from the section 2255 petition, Kelley
appears to allege ineffective assistance of counsel in
violation of his Sixth Amendment rights, and that his guilty
plea was either unlawfully induced or not voluntary.
Petitioner's Claims related to the Voluntariness of his
Plea are both Procedurally Barred and Meritless.
claims not raised on direct appeal may not be raised in a
section 2255 petition. Zhang v. United States, 506
F.3d 162, 166 (2d Cir. 2007). For a claim related to the
voluntariness of a guilty plea that “has not been
presented on direct review, the procedural default bar may be
overcome only where the petitioner establishes either (1)
‘cause' for the failure to bring a direct appeal
and ‘actual prejudice' from the alleged violations;
or (2) ‘actual innocence.'” Id.
(quoting Bousley v. United States, 523 U.S. 614, 622
(1998); see also United States v. Pipitone, 67 F.3d
34, 38 (2d Cir. 1995) (“A party who fails to raise an
issue on direct appeal and subsequently endeavors to litigate
the issue via a § 2255 petition must ‘show that
there was cause for failing to raise the issue, and prejudice
resulting therefrom.'”) (quoting Douglas v.
United States, 13 F.3d 43, 46 (2d Cir. 1993)). “To
satisfy the cause requirement, the petitioner must show
circumstances external to the petitioner, something that
cannot be fairly attributed to him.” Zhang,
506 F.3d at 166 (internal quotation marks omitted).
in Kelley's petition could reasonably be construed as a
claim of actual innocence. Neither does he make the requisite
showing of cause for failure to file a direct appeal: his
unelaborated allegation that “I didn't understand
exactly what was going on, ” (Pet. at 3), is
insufficient. See Garcia-Santos v. U.S., 273 F.3d
506, 508 (2d Cir. 2001) (“waiver of appeal provision in
a plea agreement did not constitute ‘cause' for
failing to take a direct appeal”). Further, the
transcripts of plaintiffs' guilty plea hearings and
sentencing demonstrate that Kelley was informed of his
limited right to appeal, and stated that he understood this
right. (13 Cr. 990, Transcript of February 4, 2015 Hearing,
Dkt. 73 at 15-16; 13 Cr. 990, Transcript of March 6, 2015
Hearing, Dkt. 81 at 12-13; 13 Cr. 990, Transcript of July 23,
2015 Sentencing, Dkt. 101 at 25.)
transcripts also indicate that Kelly's guilty plea was
knowing and voluntary. Kelley's claim regarding the
voluntariness of his plea is thus both procedurally barred
petitioner's claims regarding ineffective assistance of
counsel are not procedurally barred by his failure to make a
direct appeal, as “failure to raise an
ineffective-assistance-of-counsel claim on direct appeal does
not bar the claim from being brought in a later, appropriate
proceeding under § 2255.” Massaro v. United
States, 538 U.S. 500, 509 (2003).
Petitioner's Ineffective Assistance of Counsel claims are
v. Washington, 466 U.S. 668 (1984) requires a two-part
showing to establish ineffective assistance of counsel.
First, a defendant must show that “counsel made errors
so serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth
Amendment.” Id. at 687. To be considered
ineffective, the attorney's performance must fall below
“an objective standard of reasonableness” under
“prevailing professional norms.” Id. at
687-88. “Second, the defendant must show that the
deficient performance prejudiced the defense.”
Id. at 687. To establish prejudice, the
“defendant 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.”
Id. at 694.
any case presenting an ineffectiveness claim, the performance
inquiry must be whether counsel's assistance was
reasonable considering all the circumstances.”
Id. at 688. Moreover, “a defendant claiming
ineffective counsel must show that counsel's actions were
not supported by a reasonable strategy . . . .”
Massaro, 538 U.S. at 501.
question 12 of the section 2255 form, which asks prisoners to
set forth every ground on which the they allege that they are
being held in violation of the Constitution, laws, or
treaties of the U.S., Kelley circled only option (a), which
relates to the voluntariness of his plea; he did not circle
option (i), denial of effective assistance of counsel. (Pet.
at 3, 4.) However, in his written explanation, he stated:
“My lawyer lead me two [sic] believe that he argued all
the facts when in fact he didn't he never argued that I
shouldn't have been used in the first place according two
[sic] my probation stipulations.” (Id. at 4.)
unelaborated upon statement is insufficient to find that
petitioner's counsel's performance fell below
prevailing professional norms, or that petitioner was
prejudiced. See Otero v. Eisenschmidt, No. 01 Civ.
2562 (HB), 2004 U.S. Dist. LEXIS 22439, at *109 n.61
(S.D.N.Y. Nov. 8, 2004) (quoting Parnes v. United
States, No. 94 Civ. 6203 (MJL), 1995 U.S. Dist. LEXIS
18881, at *3 (S.D.N.Y. Dec. 21, 1995)) (“Vague
allegations do not permit the Court to conclude that the
alleged errors of Petitioner's counsel fell below
‘prevailing professional norms' . . . .”).
Petitioner does not explain what stipulations he is referring
to, how those stipulations relate to the government's
“use” of him (presumably as a confidential
informant), or how those stipulations ...