Opinion
02 Civ. 9753 (RWS)
April 1, 2003.
Darryl Patrick, Petitioner Pro Se.
Kim A. Berger, of Counsel, Assistant US Attorney, and Honorable James B. Comey, United States Attorney for the Southern District of New York, Attorneys for Respondent.
OPINION
Pro se petitioner Darryl Patrick ("Patrick"), who is presently incarcerated, has moved pursuant to 28 U.S.C. § 2255 to vacate his guilty plea, claiming that he should not have been classified as a career offender and that he received ineffective assistance of counsel. For the following reasons, Patrick's petition for a writ of habeas corpus is denied.
Patrick's Offense Conduct
Patrick supervised the sale of crack cocaine, which was sold in clear bags with brown spots, known on the streets of Washington Heights as "Chocolate Chip." Patrick purchased the cocaine, which was later cooked into crack cocaine and packaged in individual bags with members of the Purple Crew, a separate crew that sold their crack cocaine in purple bags in Washington Heights.
Patrick's Plea Agreement and Guilty Plea
On May 1, 2001, Patrick signed a plea agreement in which he agreed to plead guilty to Count One of superseding information S2 99 Cr. 338 (RWS), which charged him with conspiracy to possess with the intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(b)(1)(C).
Patrick was originally charged with violating 21 U.S.C. § 841(b)(1)(A). In exchange for his guilty plea, the government agreed not to prosecute Patrick further for his participation in a conspiracy to distribute crack cocaine from 1994 through March 12, 1999, or to file any prior felony informations pursuant to 21 U.S.C. § 851 in connection with Patrick's 1989, 1990 and 1994 convictions for criminal sale and attempted criminal sale of controlled substances.
The plea agreement contained four provisions relevant to this petition: (1) an agreed-upon Sentencing Guidelines range; (2) an agreement that the government would not seek to file any prior felony informations; (3) a waiver by Patrick of the right to appeal any sentence imposed within or below the agreed-upon range; and (4) a waiver by Patrick of the right to attack collaterally under 18 U.S.C. § 2255 any sentence imposed within or below the agreed-upon range of 235 to 240 months.
The range was computed as follows: (i) a base offense level of 36, pursuant to U.S.S.G. § 2D1.1(c)(2), based on a total quantity of crack cocaine of at least 500 grams, but less than 1.5 kilograms; and (ii) a three-level reduction, pursuant to § 3E1.1, based on Patrick's acceptance of responsibility for his criminal conduct and timely notification of his intent to plead guilty. The parties further agreed that Patrick had 13 criminal history points, and that he was a career offender pursuant to U.S.S.G. § 4B1.1, which placed him in Criminal History Category VI.
The plea agreement provided:
(i) that the defendant will neither appeal, nor otherwise litigate under [ 28 U.S.C. § 2255], any sentence within or below the Stipulated Guidelines Range (235 to 240 months) and (ii) that the Government will not appeal any sentence within or above the Stipulated Guidelines Range (235 to 240 months). This provision is binding on the parties even if the Court employs a Guidelines analysis different from that stipulated to herein. Furthermore, it is agreed that any appeal as to the defendant's sentence that is not foreclosed by this provision is limited to that portion of the sentencing calculation that is inconsistent with (or not addressed by) the above stipulation.
Patrick appeared before Magistrate Judge Gabriel W. Gorenstein on May 1, 2002, to enter a plea of guilty to the Information. At the hearing, the Court first obtained Patrick's permission to proceed before a Magistrate Judge. After placing Patrick under oath, the Court elicited that Patrick was 38 years old, had attended school through the 11th grade, and was not being treated for any condition or taking any medication that affected his ability to hear, think, reason or make decisions.
The Court then elicited that Patrick had read the superseding Information and had reviewed it with his attorney, Daniel Meyers, Esq. ("Meyers"). Patrick further indicated that he did not need any further opportunity to confer with Meyers and that he was satisfied with Meyers' representation. The Court then reviewed with Patrick all of the rights that he had and would be waiving by entering a guilty plea and the maximum statutory penalties Patrick faced as a result of pleading guilty. The Court informed Patrick that he would face a separate prosecution for perjury if it turned out that any of Patrick's answers were untruthful.
With respect to the Plea Agreement, the Court engaged Patrick in a colloquy to ensure that he had read the agreement and reviewed it with his attorney. The Court directed Patrick to a few particular portions of the agreement. In particular, the following exchange occurred:
THE COURT: Do you also understand that under the terms of this plea agreement, if the judge sentences you to a prison term that is no longer than the maximum of the predicted range, that is no longer than 240 months, you are giving up your right to challenge that sentence, both on appeal to the Court of Appeals and by application to the trial judge? Do you understand that?
DEFENDANT: Yes.
The Court asked the government to set forth the elements of the charges against Patrick, and Patrick admitted his participation in the conspiracy charged in the information.
Following this allocution, the Court indicated that it was satisfied that Patrick understood the nature of the charges and the consequences of his plea; that his plea to the information was voluntary; and that there was a factual basis for the plea. Magistrate Judge Gorenstein indicated that he would recommend that the plea be accepted.
On June 26, 2001, this Court entered an order accepting Patrick's guilty plea.
The Sentencing Proceeding
On April 18, 2002, Patrick appeared for sentencing before this Court. First, the Court heard from Patrick's counsel, Meyers, who stated that this Court had correctly set forth in its sentencing memorandum the Stipulated Guidelines range to which the parties had agreed. Meyers also noted that the stipulation, although exposing Patrick to a lengthy prison sentence, was actually a benefit to Patrick because the stipulation capped his exposure at 240 months. Meyers noted that Patrick's criminal history would have permitted the government to file prior felony informations against him, which would have mandated that the Court sentence Patrick to prison for life. After Patrick had an opportunity to speak on his own behalf, the Court then imposed a sentence of principally 235 months' imprisonment, the bottom of the stipulated range.
Patrick's § 2255 Petition
On November 12, 2002, Patrick filed the instant petition, alleging that (1) he should not have been classified as a career offender; and (2) his counsel was ineffective for failing to object to his classification as a career offender within the meaning of the Sentencing Guidelines. The government responded on March 7, 2003, at which time the petition was considered fully submitted.
Discussion I. Standard of Review
In addressing the present motion, the Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, the Court is also aware that pro se status "`does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).
II. Waiver of Right to Appeal
As a preliminary matter, Patrick waived his right to appeal under § 2255 in his Plea Agreement. Such waivers have been upheld in this Circuit. E.g., Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001) (enforcing defendant's waiver of collateral attack under § 2255 where defendant knowingly and voluntarily waived right in plea agreement); United States v. Difeaux, 163 F.3d 725, 728 (2d Cir. 1998).
However, the Second Circuit has suggested that a defendant's claim of "ineffective assistance of counsel in entering the plea agreement" might "cast doubt on the validity of his waiver" of the right to appeal. United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998) (per curiam); see also United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001) (waiver of appellate rights cannot bar ineffective assistance claim where defendant is claiming that the waiver is the product of ineffective assistance); United States v. DeJesus, 219 F.3d 117, 121-23 (2d Cir. 2000) (dismissing appeal where waiver of right to appeal was held enforceable because it was knowing and voluntary and defendant did not enter plea agreement due to ineffective assistance of counsel), cert. denied, 121 S.Ct. 502 (2000).
Accordingly, a number of district courts within this Circuit have held that a § 2255 petitioner should not be deemed to have waived the right to collaterally attack his sentence if the ground for the attack is ineffective assistance of counsel. Balbuena v. United States, 104 F. Supp.2d 218, 220 (S.D.N.Y. 2000); see also Ocasio v. United States, 2000 WL 460459, at *3 (S.D.N.Y. April 18, 2000); Ramirez v. United States, 963 F. Supp. 329, 331-32 (S.D.N.Y. 1997).
In accordance with these cases, the Court holds that Patrick did not fully waive his right to attack his sentence collaterally pursuant to § 2255. Patrick is not barred from bringing a § 2255 petition that is based on a claim of ineffective assistance of counsel in connection with the plea negotiations. Whether Patrick in fact established ineffective assistance of counsel is a separate inquiry. Patrick's second claim for relief, however — that he should not have been classified as a career offender — has been waived and cannot afford relief.
III. Ineffective Assistance of Counsel
Patrick argues that Meyers provided ineffective assistance of counsel in that he failed to challenge Patrick's classification as a career offender and for allowing Patrick to enter a plea without knowing that he would be subjected to career offender status.
A defendant seeking to attack his sentence based upon ineffective assistance of counsel must: (1) show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and (b) "affirmatively prove prejudice." Strickland v. Washington, 466 U.S. 668, 687-89, 693-94 (1984); accord United States v. Vegas, 27 F.3d 773, 777 (2d Cir. 1994) (""First, the defendant must demonstrate that counsel's performance fell below the prevailing professional norms with a showing sufficient to overcome a `strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' If such a showing is made, the defendant must also demonstrate a reasonable probability that absent counsel's unprofessional performance, the outcome of the proceeding would have been different.").
First, Patrick has failed to overcome the "strong presumption" that Meyers' performance fell within the wide range" of reasonable professional assistance on either ground cited by Patrick. His first claim is that Meyers should have challenged his classification as a career offender. As demonstrated by the reasons cited by the government in its opposition to Patrick's argument that he should not be classified as such, Meyers' acceptance of that classification was a reasonable interpretation of the prevailing law. Patrick's second argument, that Meyers permitted Patrick to enter into the plea without knowing he would be subject to career offender status, fails because it is counter-factual. The Plea Agreement expressly states that Patrick is a career offender, and at his plea allocution, Patrick stated that no promises had been made to him other than what was included in the agreement. As a result, Meyers was not acting below professional norms as it cannot be said that Patrick entered into an "unknowing and unintelligent plea."
Patrick relies on United States v. Price, 990 F.2d 1367 (D.C. Cir. 1993) for the proposition that his record was insufficient to result in a career offender status. Yet the Second Circuit has joined the majority of Circuits in rejecting the reasoning of Price. United States v. Jackson, 30 F.3d 128, 131 (2d Cir. 1995).
Even if Meyers' performance were deficient, Patrick could not establish that he was prejudiced by that performance. Meyers secured an agreement from the government that permitted Patrick to plead guilty to a one-count information that charged him with 21 U.S.C. § 841(b)(1)(C), rather than the Indictment that charged him with 21 U.S.C. § 841(b)(1)(A), as well as the government's agreement not to file any prior felony informations against him. Had the government filed prior felony informations against Patrick under the original indictment, he would have been subject to mandatory lifetime imprisonment. 21 U.S.C. § 841(b)(1)(A), 851. Accordingly, Patrick has failed to establish prejudice.
Because Patrick received effective assistance of counsel in entering into the Plea Agreement and because he knowingly and voluntarily waived his right to appeal or challenge his sentence under § 2255, the motion is dismissed.
Conclusion
For the foregoing reasons, Patrick's petition for habeas corpus is denied. Patrick has shown no violation of constitutional rights in the enforcement of his Plea Agreement. Accordingly, the petition must be denied. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).
It is so ordered.