United States District Court, W.D. New York
DECISION AND ORDER
Richard J. Arcara, Judge
Cebrin Hill seeks relief pursuant to 28 U.S.C. § 2255.
For the reasons stated below, Petitioner's motion is
August 3, 2015, Petitioner waived indictment and pled guilty
to a one-count information charging him with discharging a
firearm in furtherance of crimes of violence, in violation of
18 U.S.C. § 924(c)(1)(A)(iii) and § 2. Several
months later, the Court sentenced Petitioner to the
mandatory-minimum sentence of 120 months' imprisonment.
Judgment was entered on February 3, 2016. Petitioner did not
file a notice of appeal.
now seeks to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. Docket No. 41. Petitioner
raises a number of arguments in support of his motion, most
of which allege that Petitioner's attorney was
constitutionally ineffective for failing to challenge the
factual basis for Petitioner's plea and for failing to
seek relief based on Petitioner's age when he committed
The plea agreement's collateral-attack waiver bars the
majority of Petitioner's claims
plea agreement, Petitioner “knowingly waive[d] the
right to . . . collaterally attack any component of a
sentence imposed by the Court which falls within or is less
than” the Guideline sentencing range of 120 months'
imprisonment. As noted, the Court sentenced Petitioner to 120
months' imprisonment. Petitioner's § 2255 motion
therefore falls within the plea agreement's
collateral-attack waiver is “‘presumpti[vely] . .
. enforceabl[e].” Sanford v. United States,
841 F.3d 578, 580 (2d Cir. 2016) (quoting United States
v. Gomez-Perez, 215 F.3d 315, 319 (2d. Cir 2000))
(brackets omitted). A court may disregard a collateral-attack
waiver in only a few narrow circumstances, “‘such
as (1) when the waiver was not made knowingly, voluntarily,
and competently, (2) when the sentence was imposed based on
constitutionally impermissible factors, such as ethnic,
racial or other prohibited biases, (3) when the government
breached the plea agreement, or (4) when the sentencing court
failed to enunciate any rationale for the [petitioner's]
sentence, thus amounting to an abdication of the judicial
responsibility subject to mandamus.'” Id.
Moreover, it is well settled that, “[e]ven if the plain
language of the plea agreement” prohibits a collateral
attack, a court should “not enforce . . . a
waiver” when a petitioner “is challenging the
constitutionality of the process by which he waived”
his collateral-attack rights. United States v.
Hernandez, 242 F.3d 110, 113 (2d Cir. 2001) (addressing
waiver of appellate rights). See also Id. at 114
(“The rationale is that the very product of the alleged
ineffectiveness cannot fairly be used to bar a claim of
ineffective assistance of counsel.”) (quotation marks
pleadings, read in a charitable light, raise two arguments
for why the Court should disregard the plea agreement's
collateral-attack waiver: (1) because Petitioner did not
knowingly and voluntarily enter into his plea agreement; and
(2) because Petitioner did not receive effective assistance
of counsel when he decided to plead guilty.
Petitioner's guilty plea was knowing and
transcript of Petitioner's plea hearing plainly shows
that Petitioner's plea was knowing and
voluntary. During his plea hearing, Petitioner
affirmed, under oath, that he was “fully satisfied with
the advice and counsel [he] received from [his]
attorney.” He also stated, among other things, that he
understood the maximum penalties he faced, as well as the
U.S. Sentencing Guidelines; that he understood the elements
of the crime to which he was pleading guilty; that he
understood the detailed factual basis underlying his plea;
that he waived “any defense based on the [s]tatute of
[l]imitations”; that the plea agreement-which was read
in open court-contained “all the terms and conditions
of the plea agreement”; and that nobody had “made
any other promises” or threatened him to plead guilty.
Finally, Petitioner stated repeatedly that he understood the
many rights he was giving up by pleading guilty, including
his right to appeal or collaterally attack his conviction.
record undermines any claim that Petitioner's plea was
not knowing and voluntary. Cf. United States v.
Torres, 129 F.3d 710, 715 (2d Cir. 1997) (“A
defendant's bald statements that simply contradict what
he said at his plea allocution are not sufficient grounds to
withdraw the guilty plea.”) Petitioner's conclusory
allegations to the contrary are insufficient to rebut his
sworn statements made during the “grave and solemn
act” of pleading guilty. United States v.
Hyde, 520 U.S. 670, 677 (1997). Indeed, if
Petitioner's “plea can be attacked by assertions
that it was coerced and that his counsel was ineffective
despite the evidence to the contrary in the plea hearing
transcript, then no guilty plea will ever be safe from attack
by a [petitioner] who has second thoughts.” Browder
v. United States, 14-CV-17(LJV), 10-CR-263(LJV), 2017 WL
262604, at *7 (W.D.N.Y. Jan. 20, 2017).
the record does not support the claim that Petitioner's
plea was not knowing and voluntary. As a result, the Court
will not disregard the plea ...