Hiraldo v. U.S.

Full title: JOSE M. HIRALDO, also known as "Pichi," Petitioner, v. UNITED STATES OF…

Court: United States District Court, E.D. New York

Date published: Jun 7, 2006

05 CV 0760 (SJ) (E.D.N.Y. Jun. 7, 2006)

Opinion

05 CV 0760 (SJ).

June 7, 2006

JOSE M. HIRALDO, F.C.I. Raybrook, Raybrook, NY, Petitioner Pro se.

ROSLYNN R. MAUSKOPF, ESQ., United States Attorney, Brooklyn, New York, By: Sean Haran, Esq., Attorney for Respondent.

MEMORANDUM AND ORDER

STERLING JOHNSON JR., District Judge

Presently before the Court is a Motion for Reconsideration, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure ("Rule 59(e)") and Rule 6.3 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Local Rule 6.3" and, such motion, the "Rule 59(e) Motion"), brought by Jose Hiraldo ("Petitioner"), acting pro se. Petitioner moves this Court to reconsider the Memorandum and Order entered on April 11, 2005 (the "April 11, 2005 Order"), denying his motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct the sentence imposed upon him under criminal docket number 03 CR 157 (S-1). (See Docket No. 05 CV 760, Entry 5.) For the reasons stated herein, Petitioner's Rule 59(e) Motion is hereby GRANTED, solely for the purposes of considering the ineffective assistance of counsel claim contained therein. However, the Court finds that Petitioner's allegation of ineffective assistance provides an insufficient basis on which to modify the decision rendered in the April 11, 2005 Order. Therefore, Petitioner's motion for § 2255 relief is hereby DENIED.

BACKGROUND

On December 18, 2003, Petitioner pleaded guilty, pursuant to a written plea agreement (the "Plea Agreement"), to participating in a conspiracy to distribute and to possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. In the Plea Agreement, the United States of America ("Respondent") calculated Petitioner's offense level under the United States Sentencing Guidelines (the "Guidelines") as follows: Respondent first determined that Petitioner's base offense level was 34, based on the amount of cocaine involved in the conspiracy. (Plea Agmt. ¶ 2; U.S. Sentencing Guidelines Manual § 2D1.1(c)(3).) Respondent then reduced Petitioner's offense level by three points for his acceptance of responsibility, giving Petitioner a total offense level of 31. U.S. Sentencing Guidelines Manual § 3E1.1(b). Respondent next reduced the offense level by two points because Petitioner qualified for the safety-valve reduction, id. at § 2D1.1(b)(7), resulting in a total offense level of 29. Given his criminal history category of I, Petitioner's offense level of 29 carried a range of imprisonment of 87 to 108 months. Id. at § 5A. Petitioner agreed with this calculation. (Pleading Tr. 16:17-25, 17:1-3, Dec. 18, 2003.)

In preparation for sentencing, the United States Probation Department ("Probation") compiled Petitioner's pre-sentence investigation report (the "PSR") for the Court's consideration prior to, and during, sentencing. Probation calculated Petitioner's sentencing guidelines range as follows: Probation started with a base offense level of 34 for the amount of cocaine involved in the conspiracy, specifically identified in the PSR as 25.153 kilograms. (PSR at ¶ 21; U.S. Sentencing Guidelines Manual § 2D1.1(c)(3).) Probation increased the offense level by four points for Petitioner's leadership role in the offense, raising the calculation to 38. U.S. Sentencing Guidelines Manual § 3B1.1(a). Probation then reduced Petitioner's offense level by three points for his acceptance of responsibility, giving Petitioner a total offense level of 35. U.S. Sentencing Guidelines Manual §§ 3E1.1(a), (b)(2). Given his criminal history category of I, Petitioner's offense level of 35 carried a range of imprisonment of 168 to 210 months. U.S. Sentencing Guidelines Manual § 5A.

Petitioner and Respondent disagreed with Probation's final offense level calculations, specifically, with Probation's characterization of Petitioner as a "leader" of the narcotics conspiracy. (See Sentencing Tr. at 3:14-21, Sept. 28, 2004.) At sentencing, both Petitioner and Respondent advised the Court of their objections. (See Sentencing Tr. at 3:14-21.) After taking into consideration Probation's recommended sentencing range and the Plea Agreement, the Court sentenced Petitioner on September 28, 2004. to 87 months of imprisonment and five years of supervised release because "it was sufficient for the crime that was committed." (Sentencing Tr. at 4:11-12.) Because Petitioner did not appeal his conviction or sentence, his sentence became final on October 19, 2004.¹

1 Under Rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure, Petitioner had 10 days after "the entry of either the judgment or order being appealed" to file a notice of appeal with the United States Court of Appeals for the Second Circuit (the "Second Circuit"). Petitioner's judgment was entered on October 5, 2004, see Docket No. 03 CR 157, Entry 79, and he did not file a notice of appeal. Thus, his conviction became final on October 19, 2004. This date was calculated in accordance with Rule 26(a)(2) of the Federal Rules of Appellate Procedure, which requires that a calculation of the appropriate period of time to file a notice of appeal "[e]xclude intermediate Saturdays, Sundays and legal holidays when the period is less than 11 days, unless stated in calendar days." Id.

On January 31, 2005, Petitioner filed a motion for correction of an illegitimate sentence, pursuant to 18 U.S.C. § 3582 (the "§ 3582 Motion"). (See Pet'r 18 U.S.C. § 3582 Mot., Docket No. 05 CV 760, Entry 1.) Citing Blakely v. Washington, 542 U.S. 961 (2004). Petitioner argued that his sentence should be corrected because the Court improperly enhanced his sentencing guidelines range based on a drug quantity that was neither proven beyond a reasonable doubt nor admitted by the Petitioner during his plea allocution. (Pet'r § 3582 Mot. at 1.) Petitioner asserted that, but for this allegedly impermissible sentencing enhancement, his base offense level for the charged offense would have been 32, given the amount of cocaine charged in the indictment and to which he stipulated in the Plea Agreement (five kilograms), and not 34, which was based on the amount of cocaine involved in the conspiracy to which he pleaded guilty (25.153 kilograms). (Pet'r § 3582 Mot. at 1; PSR at ¶ 21.)

The Court notified Petitioner that it would construe the § 3582 Motion as a motion to vacate, set aside, or correct a sentence, pursuant to 28 U.S.C. § 2255 (the "§ 2255 Motion"), in an Order entered on March 8, 2005. (See Order, Mar. 8, 2005, Docket No. 05 CV 760, Entry 2.) The Court ultimately denied Petitioner's § 2255 Motion in the April 11, 2005 Order. (See April 11, 2005 Order, Docket No. 05 CV 760, Entry 5.) The Court first held that Petitioner's waiver of his right to appeal or to challenge collaterally his sentence, as provided in the Plea Agreement, was voluntary and binding, and thus precluded the Court's consideration of the merits of his claims. The Court also held that Petitioner's arguments regarding the application ofBlakely were "foreclosed by Petitioner's decision to enter a plea agreement and by his own admissions in that agreement regarding his commission of the underlying offense." (April 11, 2005 Order at 3.) The Court issued the April 11, 2005 Order before receiving Petitioner's reply to the Respondent's letter brief in opposition to Petitioner's § 2255 Motion. Petitioner's reply was due, at the earliest, on April 25, 2005.² (See Order to Show Cause at 2, Mar. 22, 2005, Docket No. 05 CV 760, Entry 3.)

2 Respondent filed a response to the § 2255 Motion, in the form of a letter brief, on April 5, 2005. (See Resp't Resp. § 2255 Mot., Docket No. 05 CV 760, Entry 4.) Petitioner's reply to Respondent's response was due "within twenty days of the date of receipt of a copy" of that response. (Order to Show Cause at 2.) Although the Court is unable to determine the date on which Petitioner received Respondent's response, it is clear that Petitioner's reply would have been due, at the earliest, on April 25, 2005, which is 20 days from the date of entry of Respondent's letter.

In a reply letter dated April 10, 2005, Petitioner objected to the Respondent's response to his § 2255 Motion and argued, for the first time, that he received ineffective assistance of counsel from Lauriano Guzman, Jr., Esq. ("Counsel"). Petitioner contended that Counsel incorrectly advised him during the plea negotiations process that 34 was the appropriate base offense level for the charged offense. (Pet'r Reply Supp. § 2255 Mot. at 1, Docket No. 05 CV 760, Entry 6.)

In a timely-filed³ motion dated April 18, 2005, Petitioner moved the Court for reconsideration of its denial of the § 2255 Motion. (See Rule 59(e) Mot., Apr. 18, 2006, Docket No. 05 CV 760, Entry 7.) Petitioner again argued that the assistance he received from Counsel was ineffective. (Rule 59(e) Mot. at 2.)

3 Rule 59(e) provides that "[a]ny motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." In this case, the Memorandum and Order that denied § 2255 relief and closed Petitioner's case was entered on April 11, 2005. Petitioner's April 18, 2005 filing was clearly within the 10-day limitations period.

DISCUSSION ⁴

4 In addressing the present petition, the Court is mindful that Petitioner was proceeding pro se in submitting both the § 2255 Motion and his reply papers, and his submissions will therefore be liberally construed and read to raise the strongest arguments they suggest. See, e.g., Abrahamson v. United States, No. 03 CV 4677, 2004 U.S. Dist. LEXIS 7150, at *2-3 (S.D.N.Y. Apr. 26, 2004).

I. Rule 59(e) and Local Rule 6.3

Rule 59(e) authorizes the Court to alter or amend a judgment at its discretion, and Local Rule 6.3 governs motions for reconsideration of a court order. The same standard applies to both motions for reconsideration pursuant to Rule 59(e) and motions for reconsideration pursuant to Local Rule 6.3. See Medoy v. Warnaco Employee's Long Term Disability Ins. Plan, No. 97 CV 6612, 2006 WL 355137, at *1 (E.D.N.Y. Feb. 15, 2006).

The standard for granting a motion for reconsideration is strict; a Rule 59(e) motion "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked . . . that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). "[A] motion for reconsideration cannot assert new arguments or claims which were not before the court on the original motion." Koehler v. Bank of Berm. Ltd., No. M18-302, 2005 U.S. Dist. LEXIS 8694, at *1 (S.D.N.Y. May 10, 2005). A party also may not seek "solely to relitigate an issue already decided." Shrader, 70 F.3d at 257.

Because the Court issued the April 11, 2005 Order prior to the expiration of Petitioner's reply period, the Court will not construe Petitioner's ineffective assistance claim as a new argument improperly raised in a motion to reconsider. Rather, in the interest of fairness, the Court will consider the merits of Petitioner's ineffective assistance of counsel claim.

II. Relation Back

As it was not included in his original § 2255 Motion, but was raised in his reply letter, Petitioner's ineffective assistance of counsel claim is essentially an amendment to that motion. Because responsive pleadings have been filed in this matter, Petitioner may only amend his original § 2255 Motion "by leave of court or by written consent of the adverse party." Fed.R.Civ.P. 15(a). To date, Respondent has not consented to an amendment of Petitioner's pleadings. Thus, Petitioner may only amend his § 2255 Motion by leave of this Court.

Under Rule 15 of the Federal Rules of Civil Procedure ("Rule 15"), the Court may only consider Petitioner's ineffective assistance of counsel argument if it "relates back" to the original § 2255 Motion.⁵ Rule 15 provides that amendments to a pleading may not be made after the statute of limitations has run unless the amendment relates back to the date of the original pleading. Fed.R.Civ.P. 15(a). In applying this rule, amendments are deemed to "relate back" to the original pleading if "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed R. Civ. P. 15(c)(2).

5 Rule 12 of the Rules Governing Section 2255 Proceedings in the United States District Courts provides that "the Federal Rules of Civil Procedure . . . to the extent that they are not inconsistent with any statutory provision or these rules, may be applied" to a § 2255 proceeding. Similarly, 28 U.S.C. § 2242 specifically states that a petition for a writ of habeas corpus "may be amended or supplemented as provided in the rules of procedure applicable to civil actions." Therefore, application of Rule 15 to the § 2255 Motion at bar is appropriate.

The Supreme Court recently examined Rule 15(c)(2) in the habeas context in Mayle v. Felix, 125 S. Ct. 2562 (2005). There, the Supreme Court rejected the claim that a petitioner's "trial, conviction, or sentence" constitute the "conduct, transaction, or occurrence" contemplated by Rule 15; otherwise, all amendments would relate back because any § 2255 claim by its very nature is an attack on the underlying criminal proceedings. Id. at 2573-4. Instead, "[s]o long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order." Id. at 2574. Mayle further explains that relation back is allowed "when the new claim is based on the same facts as the original pleading and only changes the legal theory." Id. at 2568.

The Court finds that Petitioner's ineffective assistance of counsel claim does in fact relate back to the original § 2255 Motion. In sum and substance, this new claim is based on the same set of circumstances that Petitioner initially challenged in his § 2255 Motion, namely, the calculation of his base offense level and the related sentencing guidelines range. Therefore, Petitioner's ineffective assistance of counsel claim and the original substantive challenge to his base offense level arise from a "common core of operative facts,"id. at 2574. Therefore, the Court may consider the ineffective assistance claim.

III. Ineffective Assistance of Counsel

A. Standard of Review

As noted in the April 11, 2005 Order, a defendant who knowingly and voluntarily agrees to waive the right to appeal a certain sentence may not then "appeal the merits of a sentence conforming to the agreement." United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993). "Such a remedy would render the plea bargaining process and the resulting agreement meaningless."Id. Waivers of the right to seek collateral relief under 28 U.S.C. § 2255 are enforceable to the same extent as waivers of direct appeal. Groppi v. United States, No. 05 CV 7058, 2006 U.S. Dist. LEXIS 641, at *11 (S.D.N.Y. Feb. 17, 2006) (citingGarcia-Santos v. United States, 273 F.3d 506 (2d Cir. 2001) (upholding a waiver of collateral relief even when the petitioner had been mistakenly informed by a district judge that he had the right to appeal)).⁶ The Court is, however, required to construe the "terms of the plea agreement narrowly, using applicable principles of contract law."United States v. Ready, 82 F.3d 551, 556 (2d Cir. 1996).

6 While not raised by Petitioner, the Court notes that the transcript of Petitioner's sentencing indicates that the Court unintentionally misinformed Petitioner in a similar manner regarding his appeal rights. (Sentencing Tr. 4:24-5, 5:1.) However, it is clear from Garcia-Santos that such an inadvertent error by a district court does not render this type of waiver unenforceable. Garcia-Santos, 273 F.3d at 508.

Notwithstanding the general rule against challenging pleas and sentences where such rights have been waived, "important constitutional rights require some exceptions to the presumptive enforceability of a waiver." United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000). For example, a court should only enforce a waiver "if the record `clearly demonstrates' that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary." Ready, 82 F.3d at 557 (citation omitted). "However, even a defendant's knowing and voluntary waiver may be unenforceable if any act of ineffective assistance of counsel led to the waiver." Villar v. United States, No. 05 CV 3230, 2006 U.S. Dist. LEXIS 397, at *10 (S.D.N.Y. Jan. 6, 2006) (citingUnited States v. Monzon, 359 F.3d 110, 118-19 (2d Cir. 2004)).

The Supreme Court has held that claims of ineffective assistance of counsel arising out of the plea process are governed by the standard established in Strickland v. Washington, 466 U.S. 668 (1984). Hill v. Lockhart, 474 U.S. 52, 57 (1985). In Strickland, the Supreme Court established a two-part test to determine whether a counsel's assistance was ineffective. First, "the defendant must show that counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms." Strickland, 466 U.S. at 688. When evaluating counsel's performance, a court must examine the circumstances of counsel's conduct from counsel's perspective at the time rather than from hindsight. Id. at 689. Moreover, in order to satisfy the first prong of Strickland, Petitioner must overcome the strong presumption that the challenged action or inaction may be considered reasonable strategy. Id.

Second, Petitioner must show that counsel's performance prejudiced his defense. Id. at 692. To show prejudice, there must be a "reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different." Id. at 694. As the Supreme Court stated, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Unless Petitioner satisfies both of the requirements of Strickland, it cannot be said that a conviction or, in this case, a plea agreement "resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687.

B. The Merits of the Claim

The Court finds Petitioner's ineffective assistance of counsel claim unavailing. Petitioner essentially argues that his guilty plea was not knowing or voluntary because Counsel improperly advised him during plea negotiations regarding the applicable base offense level and the related sentencing guidelines range for the charged offense. Petitioner specifically alleges that Counsel should have objected to the base offense level of 34, which was used by Respondent in the Plea Agreement and by Probation in the PSR when calculating the sentencing guidelines range, because it was based on a drug quantity (25.153 kilograms) that was neither proven beyond a reasonable doubt nor admitted by the Petitioner during his plea allocution. (Pet'r Reply Supp. § 2255 Mot. at 1-2.)

First, there is no indication that the Guidelines were incorrectly applied to Petitioner; Counsel therefore had no duty to object to Guidelines calculations, either during plea negotiations or at sentencing, that were substantively correct. Petitioner's argument essentially suggests that his sentence violates the United States Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466 (2000).⁷ The Second Circuit has interpreted Apprendi as holding that, "unless [certain] facts were found by a jury beyond a reasonable doubt, (or admitted by the defendant) the defendant may not be sentenced more heavily than the maximum sentence allowed by the statute without regard to those [particular] facts." United States v. Luciano, 311 F.3d 146, 151 (2d Cir. 2002). The Second Circuit has also noted, however, that

7 In his moving papers, Petitioner relies on Blakely v. Washington, 542 U.S. 296 (2004) for this proposition. Blakely was issued on June 24, 2004. The Court first notes that, whileBlakely technically applies to Petitioner's case because his conviction became final (on October 19, 2004) after Blakely was issued, see Carmona v. United States, 390 F.3d 200, 203 (2d Cir. 2004), it offers no independent relief for Petitioner.Blakely, which noted that the Sixth Amendment prohibits sentences greater than "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," simply reiterated the holding ofApprendi and applied that holding in the context of Washington state's sentencing regime. 124 S.Ct. at 2537 (emphasis omitted). Second, the case which would be most applicable to Petitioner isUnited States v. Booker, 543 U.S. 220 (2005), where the Supreme Court held that the system of enhancements established by the Guidelines violated the Sixth Amendment as construed inBlakely. However, the Second Circuit has held that Booker is not retroactive, i.e., it does not apply to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date on which Booker was issued. Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005). Because Petitioner's conviction became final before Booker was issued, it cannot be applied to Petitioner's case.

as long as the sentence imposed is not greater than the maximum penalty authorized by statute for the offense charged and (in cases involving a guilty plea) allocuted to by the defendant, a district court may consider drug quantity in determining a defendant's relevant conduct for sentencing purposes.

United States v. McLean, 287 F.3d 127, 133 (2d Cir. 2002) (citation omitted).

The offense to which Petitioner pled guilty carried a maximum sentence of life imprisonment. 21 U.S.C. § 841(b)(1)(A)(ii)(II). The sentence ultimately received by Petitioner, 87 months, was far below that potential maximum penalty. As a result, Apprendi does not prevent courts, by a preponderance of the evidence, rather than a jury, from estimating drug quantity when determining relevant conduct for sentencing purposes. See McLean, 287 F.3d at 133 (citation omitted).

In making its drug quantity estimation, "a sentencing court may rely on any information it knows about, including evidence that would not be admissible at trial, as long as it is relying on specific evidence, e.g., drug records, admissions or live testimony." Id. (internal quotation marks and citations omitted). The Guidelines also provide that "in cases of jointly undertaken criminal activity, [district courts may] consider as relevant conduct all reasonably foreseeable acts of the defendant's co-conspirators to determine the defendant's base offense level." United States v. Kinder, 64 F.3d 757 (2d Cir. 1995) (internal quotation marks omitted); U.S. Sentencing Guidelines § 1B1.3(a)(1)(B).

First, because Petitioner pled guilty to participation in a narcotics conspiracy, which certainly qualifies as "jointly undertaken criminal activity," the Court appropriately determined Petitioner's offense level based upon the amount of cocaine reasonably foreseeable to him as a result. Second, the Court had sufficient specific evidence at sentencing to make such a determination, including Petitioner's own statements and the PSR.⁸ Petitioner specifically allocuted to, and signed a Plea Agreement confirming, that he was responsible for at least five kilograms of cocaine. (Pleading Tr., 19:22-25, 20:1; Plea Agmt. ¶ 2.) Investigations by federal agents also revealed that Petitioner participated in telephone conversations with other alleged co-conspirators regarding 15 kilograms, 100 grams, 500 grams, and 8 kilograms of cocaine throughout December 2002. (PSR ¶¶ 5, 8-10.) Investigators also seized 553 grams of cocaine, which were allegedly destined for delivery to Petitioner, from an alleged co-conspirator. (PSR ¶ 13.) In sum, the Court properly exercised its discretion when it relied on this specific evidence during sentencing to determine the drug quantity for which Petitioner was responsible.

8 Although the Court did not expressly state that it adopted the drug quantity included in the PSR, such adoption is implied by the record. At sentencing, the Court accepted the sentencing guidelines range recommended by both Petitioner and Respondent, namely, 87 to 108 months. (Sentencing Tr. 3:16-23.) As previously discussed, this sentencing range was calculated using a base offense level of 34, which is the appropriate offense level for 25.153 kilograms of cocaine. U.S. Sentencing Guidelines § 2D1.1(c)(3).

Contrary to Petitioner's assertions, Counsel did not err in failing to object to Petitioner's offense and the related sentencing guidelines range used during plea negotiations and sentencing because they were in fact correct. Failure to raise frivolous arguments does not give rise to ineffective assistance of counsel. Therefore, the Court finds that Petitioner's ineffective assistance of counsel claim is meritless.

CONCLUSION

For the reasons stated herein, Petitioner's Rule 59(e) Motion is hereby GRANTED, solely for the purposes of considering the ineffective assistance of counsel claim contained therein. However, the Court finds that Petitioner's allegation of ineffective assistance provides an insufficient basis on which to modify the decision rendered in the April 11, 2005 Order. Therefore, Petitioner's motion for § 2255 relief is hereby DENIED.

SO ORDERED.