Opinion
03 Civ. 7857 (RCC).
June 28, 2005
MEMORANDUM ORDER
Agustin Alberto-Suarez ("Petitioner") filed a petition pro se pursuant to 28 U.S.C. § 2255 alleging ineffective assistance of counsel. Petitioner moves to vacate, set aside, or correct his sentence of 120 months' (10 years') imprisonment and 5 years' supervised release or, in the alternative, for an evidentiary hearing to resolve the factual issues raised by his claim for relief. For the following reasons, Petitioner's motion is DENIED.
I. BACKGROUND
On January 23, 2003, Petitioner pleaded guilty to conspiracy to possess with intent to distribute five kilograms of cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), 846. Petitioner argues that his attorney failed to move for dismissal after the Government allegedly delayed 96 days between Petitioner's arrest and indictment in violation of the 30-day requirement of the Speedy Trial Act, 18 U.S.C. § 3161(b). Petitioner also argues that his attorney failed to object to the Court's calculation of the quantity of cocaine involved in the distribution scheme in violation of § 2D1.1 n. 12 of the United States Sentencing Guidelines. The Government responds that Petitioner's plea agreement waived his right both to bring a claim under § 2255 and to contest the Court's computation of the amount of cocaine involved the scheme. The Government also responds that, even disregarding the plea agreement, Petitioner's claims are without merit. Petitioner replies that the terms of the plea agreement do not serve as a bar to this motion and, even if they do, he nonetheless received ineffective assistance of counsel with regard to his entry into that agreement.
II. DISCUSSION
Collateral relief under § 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes `a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
In moving to vacate, set aside, or correct his sentence under § 2255, Petitioner makes three separate claims. The plea agreement directly prohibits only one of them: Petitioner's claim of ineffective assistance of counsel based on the amount of cocaine involved in the distribution scheme. Although Petitioner's second claim — for ineffective assistance of counsel based on his attorney's alleged failure to object to a violation of the Speedy Trial Act — is beyond the scope of the plea agreement, it is without merit. Petitioner's final claim — for ineffective assistance of counsel concerning his entry into the plea agreement — is also without merit because Petitioner fails to establish that his attorney's conduct fell below an objective standard of reasonableness.
A. The Plea Agreement and the Quantity of Cocaine
A defendant is generally bound by a plea agreement containing a waiver of the right to appeal or collaterally attack his sentence when he knowingly and voluntarily enters into and obtains the benefit of that agreement. United States v. Difeaux, 163 F.3d 725, 728 (2d Cir. 1998). A defendant may thus waive his right to petition for relief under § 2255. Gumbs v. United States, 8 F. Supp. 2d 882, 883 (S.D.N.Y. 1998). Although a plea agreement waiving the right to petition for relief may be unenforceable when the agreement was entered into without effective assistance of counsel and when the defendant challenges the constitutionality of the very process by which the right was waived, United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001), merely asserting ineffective assistance of counsel does not automatically render a plea agreement unenforceable, United States v. Monzon, 359 F.3d 110, 118 (2d Cir. 2004). The ineffective-assistance claim must be meritorious to render waiver of the right to appeal or collaterally attack a sentence in a plea agreement unenforceable. Monzon, 359 F.3d at 119.
On October 16, 2002, Petitioner entered a plea agreement wherein he pledged not to bring a claim under § 2255 and acknowledged the involvement of five kilograms of cocaine in the distribution scheme. Petitioner now brings a claim under § 2255 and disputes that five kilograms of cocaine were involved in the distribution scheme. The plea agreement consequently bars Petitioner's claim of ineffective assistance of counsel based on his attorney's failure to object to the calculation of the quantity of cocaine. Petitioner does not allege that his entry into the plea agreement was unknowing or involuntary. Indeed, such a claim would contradict the record.
Both the written plea agreement and plea allocution demonstrate that Petitioner knowingly and voluntarily agreed not to bring a claim under § 2255 challenging that five kilograms of cocaine were involved in the purchase and distribution scheme. At his plea allocution, Petitioner stated that he had reviewed the plea agreement with his attorney and understood its terms. (Plea Hr'g Tr. 10/24/02 at 9.) Petitioner avowed in open court that his entry into the agreement was voluntary, that is, of his own free will and choice. (Id.) He also affirmed that he and a co-conspirator planned to purchase and later distribute five kilograms of narcotics. (Id. at 11.) A district court is entitled to rely upon statements made by a defendant under oath in open court. Hernandez, 242 F.3d at 112.
Moreover, Petitioner benefited from his plea agreement. Under the agreement, the Government agreed not to file a prior felony information pursuant to 21 U.S.C. § 851 regarding Petitioner's 1994 conviction for distribution of marijuana. (Gov't Mem., Ex. B.) The filing of that information would have increased Petitioner's mandatory minimum sentence from 10 to 20 years' imprisonment. (Id.) After knowingly and voluntarily entering a plea agreement and securing the benefits thereof, a defendant is not then permitted to challenge a sentence conforming to that agreement. United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993). Therefore, Petitioner's plea agreement bars his claim alleging ineffective assistance of counsel concerning the amount of cocaine involved in the purchase and distribution scheme. To hold otherwise would render the "plea bargaining process and resulting agreement meaningless." Id.
B. The Plea Agreement and the Speedy Trial Act
The plea agreement itself does not bar Petitioner's second claim for ineffective assistance of counsel based on his attorney's alleged failure to object to a violation of the Speedy Trial Act. Plea agreements waiving appellate rights are to be "applied narrowly and construed strictly against the government."United States v. Tang, 214 F.3d 365, 368 (2d Cir. 2000) (internal quotations omitted). The Government did not secure Petitioner's sentence and conviction from direct appeals and collateral attacks on any and all grounds in this case. See Hernandez, 242 F.3d at 113 (noting that the Government may bargain for such an agreement). By its terms, the plea agreement at issue bars Petitioner from appealing or litigating "any sentence within or below the Stipulated Guidelines Range" as well as his conviction itself on the ground that the Government failed to produce "discovery material, Jencks Act material, exculpatory material pursuant to Brady v. Maryland, 373 U.S. 83 (1963), other than information establishing the factual innocence of the defendant, and impeachment material pursuant to Giglio v. United States, 404 U.S. 150 (1972)." (Gov't Mem., Ex. B.) In alleging a violation of the Speedy Trial Act, Petitioner is not challenging his sentence of 120 months, which is within the range of the guidelines. Rather, as evident from the relief sought — dismissal with prejudice for violation of the Speedy Trial Act (see Pet'r Br. at 4) — Petitioner is challenging the underlying merits of his conviction. See Hernandez, 242 F.3d at 113 (distinguishing an appeal of a sentence from an appeal of the merits of a conviction). Likewise, Petitioner does not attempt to undermine his conviction based on the Government's failure to produce any discovery, Jencks, Brady, or Giglio material. Rather, by claiming that the Government delayed too long after his arrest in bringing an indictment, Petitioner attacks his conviction on wholly unrelated grounds. Thus, Petitioner's claim evades the terms of this section of the plea agreement.
Nevertheless, Petitioner's claim of ineffective assistance of counsel concerning the Speedy Trial Act fails on the merits. On August 28, 2001, Petitioner and a co-conspirator were arrested and on the following day Petitioner was charged by criminal complaint with conspiracy to distribute five kilograms and more of cocaine. At the time of arrest, a magistrate judge scheduled a preliminary hearing for September 13, 2001. The hearing was postponed, however, because the terrorist attacks of September 11, 2001 forced the United States District Court for the Southern District of New York to close from that day until September 19, 2001. On September 21, 2001, Magistrate Judge Andrew J. Peck entered an order of continuance extending the period in which an indictment had to be filed pursuant to the Speedy Trial Act until October 15, 2001. The order of continuance was again extended on October 15 for fourteen days, on October 29 for thirty days, and on November 28 for another thirty days. Each extension was made in the interest of justice pursuant to 18 U.S.C. § 3161(h)(8)(A).
Although Petitioner acknowledges the existence of § 3161(h)(8)(A), he seemingly treats § 3161(b) as having no exception, implicitly arguing throughout his brief that only an indictment stops the speedy-trial clock once it begins to run after arrest. But the speedy trial clock does not always run without interruption from the moment of arrest to the moment of indictment. Subsection (h) of § 3161 may toll the clock, and its invocation tolled the clock here. Petitioner was indicted on December 27, 2001, within the thirty-day extension granted by Judge Peck on November 28, 2001 and therefore within the period allowable under the Speedy Trial Act. Petitioner's claim of a violation of the Speedy Trial Act is thus without merit.
C. The Plea Agreement and Ineffective Assistance of Counsel
The Supreme Court has held that "the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill, 474 U.S. at 58. To satisfy the first part of this test, a petitioner must establish that his attorney's conduct fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688 (1984). To satisfy the second part of the test, a petitioner must establish that his attorney's "deficient performance prejudiced the defense." Id. at 687. In the context of a plea agreement, 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, 474 U.S. at 59. Because both parts of the Strickland test must be satisfied for a petitioner to establish ineffective assistance of counsel, failure to satisfy one part of the test frees a district court from assessing whether the petitioner satisfied the other part of the test. Strause v. Leonardo, 928 F.2d 548, 556 (2d Cir. 1991).
Petitioner has failed to satisfy the first prong of theStrickland test such that the Court need not assess satisfaction of the second prong. Petitioner claims that his counsel's conduct fell below an objective standard of reasonableness because he failed to object to the indictment based on a violation of the Speedy Trial Act. For the reasons set forth by the Court herein, however, there was no violation of the Speedy Trial Act and therefore no basis for any objection. Counsel cannot be ineffective by failing to object to a non-existent violation, and failure to object under such circumstances is certainly not unreasonable "under prevailing professional norms" as required by Strickland, 466 U.S. at 688. Consequently, Petitioner's claim of ineffective assistance of counsel respecting entry into the plea agreement is without merit.
D. Petitioner's Request for an Evidentiary Hearing
Petitioner requests an evidentiary hearing to resolve the factual issues raised by this claim. Section 2255 provides that a court shall hold an evidentiary hearing "unless the motion and the files and record of the case conclusively show that the prisoner is entitled to no relief." Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996). As explained herein, both the instant motion and the record conclusively show that Petitioner is not entitled to relief. Because there is no factual issue to resolve, there is no need for an evidentiary hearing.
III. CONCLUSION
For the foregoing reasons, Petitioner's motion pursuant to § 2255 to vacate, set aside, or correct his sentence is DENIED. The Clerk of the Court is directed to close this case and remove it from the Court's active docket.
So Ordered.