Opinion
99 Civ. 8566 (RCC)
March 13, 2002
Opinion Order
Petitioner, Timothy Hayes-EL ("Petitioner" or "Hayes"), pro se, petitioned this Court on June 14, 1999 for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255. Petitioner claims that he was prejudiced by his attorney's failure to produce medical records to the Court at sentencing. For the reasons set forth below, Hayes's petition is denied.
I. Background
On March 18, 1998, pursuant to a written plea agreement, Petitioner pleaded guilty to a six-count superseding information involving the violation of federal narcotics laws. 21 U.S.C. § 812, 841(a)(1) and (b)(1)(c). The parties stipulated to a U.S. Sentencing Guidelines offense level of 25 and a criminal history category of IV, producing a sentencing range of 84 to 105 months. Plea Agreement, Gov't Ex. A. at 2-4. The agreement contained a provision in which Petitioner agreed to not appeal or litigate pursuant to § 2255 any sentence within or below the stipulated guideline range. Id. at 5. "This provision [would be] binding on the parties even if the Court employ[ed] a Guidelines analysis different from that stipulated to [by the parties]." Id. Further, any appeal not foreclosed by that provision would "be limited to that portion of the sentencing calculation that is inconsistent with (or not addressed by)" the stipulated range. Id. Moreover, the parties agreed that a request for a downward or upward departure would not be warranted at the time of sentence. Id. at 4.
The Court set the sentence date for June 18, 1998 and subsequently adjourned it to August 20, 1998 to allow Petitioner's attorney the opportunity to investigate Hayes's medical condition. Hayes had been ill prior to his arrest and was receiving dialysis at the time of his conviction. Prior to the June sentence date, however, the Court had received a letter from Dr. Leonard Meggs indicating that Hayes was a "viable candidate for kidney transplantation." The Court directed defense counsel to obtain Petitioner's medical records to support this letter.
On the date of sentence, Petitioner's attorney informed the Court of his thorough, albeit unsuccessful, efforts to contact Petitioner's doctor. The Court had learned from Bureau of Prisons personnel that dialysis would be available while Petitioner was incarcerated, but that organ transplants were arranged only in exceptional situations. Thus, finding no support for Petitioner's contention that he could not be incarcerated in his condition, and being assured that he could continue with dialysis in prison, the Court sentenced him to 84 months of imprisonment. August 20, 1998 Sentence Transcript at 8-10. Petitioner did not appeal. Petitioner now claims, however, that his defense attorney's failure to obtain his medical records amounted to ineffective assistance of counsel. Further, Hayes claims that "newly discovered evidence" — which the Court notes he does not produce or specify — demonstrates that he suffers from renal failure, that the pre-sentence report ("PSR") did not adequately reflect his medical condition and that a downward departure would have been appropriate if the Court knew of his medical condition.
II. Discussion
A. Procedural Bar
In the plea agreement, Petitioner agreed that he would not appeal or otherwise litigate under § 2255 any sentence within or below the stipulated guideline range. Plea Agreement, Gov't Exhibit A at 5. This Court sentenced Hayes to 84 months, a term at the low end of the range. "It is by now well-settled that a defendant's knowing and voluntary waiver of his right to appeal a sentence within an agreed upon guideline range is enforceable." United States v. Djelevic, 161 F.3d 104, 106-07 (2d Cir. 1998) (denying appeal as barred by plea agreement and collecting cases in support thereof). Here, Petitioner does not claim his waiver of his right to appeal or litigate under § 2255 was not made knowingly or voluntarily. See id. at 107. Nor does he suggest that he received ineffective assistance of counsel at the time he entered the plea agreement. See id. A voluntary waiver of § 2255 relief is enforceable and "a separate ground for dismissal of the petition." Gumbs v. United States, 8 F. Supp.2d 882, 883 (S.D.N.Y. 1998) (citing United States v. Ready, 82 F.3d 550, 557 (2d Cir. 1996)). The Court will not permit Petitioner to circumvent the clear language of the plea agreement. See United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995) ("The government, this court, the public, and criminal defendants have legitimate interests in the integrity of the plea bargaining process and in the finality of sentences thus imposed."). Accordingly, Hayes's § 2255 petition is barred.
B. Ineffective Assistance of Counsel
The Court notes that even if Hayes' petition was not barred, he does not meet the standard required to demonstrate ineffective assistance of counsel. To establish such a claim, Petitioner must show "[f]irst . . . that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish ineffectiveness, the "defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. To establish prejudice, he "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.
Here, Petitioner claims that his attorney refused to fully investigate and present factual evidence of Petitioner's medical condition to the Court despite allegedly having knowledge that Petitioner could die due to illness while incarcerated. Petitioner, however, has provided no evidence that his attorney failed to function as appropriate "counsel." At the sentencing proceeding his counsel demonstrated his thorough and diligent attempts to evaluate Petitioner's medical condition. Tr. 6-9. Counsel took two months to investigate Petitioner's claims that he required a kidney transplant. Tr. 8-9. Both defense counsel and the United States Probation Officer responsible for his PSR spent two months trying to contact Petitioner's doctor to substantiate his prognosis. Petitioner has not demonstrated that his attorney failed to obtain medical records that a reasonable attorney would have collected. The record only indicated that Petitioner required dialysis and did not support the need for a transplant. That is still the case today. Further, the Court understood Petitioner's medical condition at the time of sentence and knew he could receive dialysis during his incarceration. Tr. 11-13. A downward departure was not appropriate on August 20, 1998, Tr. 10-13, and it would not be appropriate now. Hayes' petition is denied.
III. Conclusion
For the foregoing reasons, the Court denies Hayes's petition. The Clerk of the Court shall enter a final judgment dismissing this petition and close the case. Further, since any appeal from the dismissal of this petition would be meritless, the Court will not issue a certificate of appealability, see 28 U.S.C. § 2253(c)(1); Slack v. McDaniel, 529 U.S. 473, 484 (2000).