Opinion
01 Cr 965-4 (SHS), 05 Civ. 10695 (SHS).
October 20, 2006
OPINION ORDER
In June of 2003, Mark Reneau was sentenced principally to 135 months' incarceration for his participation in a massive drug conspiracy. He now brings this petition, pro se, pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Petitioner claims (1) that his sentence was unconstitutionally imposed in light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) and (2) that he received ineffective assistance of counsel at sentencing and on appeal. As set forth more fully below, Reneau's petition is denied because he waived his right to either appeal from, or collaterally attack, this sentence and because he did not receive ineffective assistance of counsel.
I. Facts
On February 20, 2002, Reneau was arrested by local authorities in New Mexico while in possession of 5.4 kilograms of phenocylidene, or "PCP." He waived extradition and was transferred to the Southern District of New York, where, on September 20, 2002, he pled guilty to two counts of an information. Count One charged Reneau with engaging in a conspiracy, from on or about January 2001 up to and including September 2001, to distribute and possess with intent to distribute one hundred grams and more of PCP or one kilogram and more of mixtures and substances containing a detectable amount of PCP, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. Count Two charged that, on or about February 20, 2002, Reneau distributed and possessed with intent to distribute approximately 5.4 kilograms of a mixture and substance containing a detectable amount of PCP, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A).
Petitioner pled guilty on September 20, 2002 pursuant to a written plea agreement. See Plea Allocution Transcript ("Plea Tr.") attached to the letter dated Mar. 23, 2006 from Assistant U.S. Attorney Jonathan B. New ("New Ltr."). In the plea agreement, Reneau stipulated that he conspired to distribute and possess with intent to distribute more than 30 kilograms of mixtures and substances containing a detectable amount of PCP and, therefore, that his base offense level pursuant to the U.S. Sentencing Guidelines ("U.S.S.G.") was 38. See Plea Agreement dated Sept. 20, 2002 ("Plea Agmt.") at 2. Reneau further stipulated that a two-level decrease in the offense level was warranted pursuant to the so-called "safety valve" provisions of 18 U.S.C. § 3553(f)(1)-(5) and U.S.S.G. §§ 2D1.1(b)(7) and 5C1.2.Id. The plea agreement also provided for a three-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b)(2) and for a Criminal History category of I. Reneau's stipulated adjusted offense level was therefore 33, yielding a sentencing range of 135 to 168 months. Id. at 2-4. Reneau further agreed in the plea agreement that no departure from that range was warranted, and that he would not seek a downward departure or adjustment from that range. Id. at 4. Further, Reneau agreed that he would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the stipulated Sentencing Guidelines Range of 135 to 168 months."Id. at 5.
Prior to sentencing, Reneau sent a letter dated March 23, 2003 to the Court, asking to have new counsel appointed and seeking to withdraw his guilty plea. See Supplemental Appendix attached to New Ltr., at 43. Reneau claimed that his lawyer at that time, Charles Lavine, Esq., had originally led him to believe that he would receive a downward departure, but had subsequently indicated that he would not receive any departure. Id. On March 28, 2003, the Court held a conference to address Reneau's request for new counsel. On that day, the Court granted Reneau's request, relieved Lavine of his representation, and appointed David Cooper, Esq. to represent Reneau.
On June 26, 2003, Reneau appeared for sentencing before this Court. Before the sentence was imposed, Mr. Cooper informed the Court that he had discussed with Reneau the option of seeking to withdraw Reneau's plea, and that Reneau had decided not to pursue that course. See Transcript of Sentencing dated June 26, 2003 ("Sent. Tr.") at 5. In particular, counsel stated that, in his view, Reneau lacked grounds to withdraw the plea and that even if the plea could be successfully withdrawn, "it did not seem likely that there would be a benefit" accruing to his client. Id. Upon questioning by the Court, Reneau confirmed that he had decided not to seek to withdraw his plea. Id. at 23. During the sentencing hearing pursuant to Fed.R.Crim.P. 32, the Court adopted the findings of fact in the Presentence Investigation Report and sentenced Reneau principally to 135 months' imprisonment — the bottom of the guidelines range to which Reneau had stipulated. Id. at 24-25.
Reneau appealed from the resulting judgment and, on December 2, 2004, the U.S. Court of Appeals for the Second Circuit affirmed the judgment of the District Court. United States v. Grinage, 117 Fed. Appx. 135, 138 (2d Cir. 2004). Approximately one year later — on December 8, 2005 — Reneau filed this section 2255 petition, alleging that his sentence was unconstitutional in light of the ruling by the U.S. Supreme Court in United States v. Booker and that he had received ineffective assistance of counsel. Specifically, Reneau alleges that at sentencing, his attorney failed to argue that Reneau should only have been held responsible for transporting between 1 kilogram and 3 kilograms of PCP, rather than being held responsible for conspiring to distribute in excess of 30 kilograms.
II. Discussion
At the outset, it is necessary to determine whether the judgment in this action was final prior to January 12, 2005, the date that Booker was decided, because Booker does not apply to judgments that were final prior to that date. Guzman v. United States, 404 F.3d 139, 140 (2d Cir. 2005). Where a party has unsuccessfully appealed his conviction to the Court of Appeals, as in Reneau's case, the judgment becomes final "when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction." Clay v. United States, 537 U.S. 522, 525, 123 S. Ct. 1072, 155 L. Ed. 88 (2003). As noted above, the Second Circuit affirmed the judgment in this action on December 2, 2004, giving Reneau 90 days from that date to file his petition seeking Supreme Court review.See Sup. Ct. R. 13(1). On January 12, 2005, before the 90-day period expired, Booker was decided by the Supreme Court. Accordingly, the judgment against Reneau was not final as of the day Booker was decided.
A. Reneau Cannot Benefit From The Ruling In Booker Because He Waived His Right To Collaterally Attack His Sentence
Although a lack of finality as of January 12, 2005 entitles defendants under some circumstances to a remand in consideration of resentencing pursuant to the procedures set forth in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), Reneau is barred by his plea agreement from challenging his sentence and is therefore precluded from relief pursuant to Crosby. In United States v. Salcido-Contreras, 990 F.2d 51 (2d Cir. 1993), the Second Circuit held that:
In no circumstance . . . may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement. Such a remedy would render the plea bargaining process and the resulting agreement meaningless.Id. at 53; see also United States v. Djelevic, 161 F.3d 104, 106-07 (2d Cir. 1998) (upholding plea agreement waiver provision). At his plea allocution, Reneau stated that he understood that should his sentence fall within or below his stipulated guidelines range, he was waiving his right to appeal or challenge that sentence, including by habeas corpus petition. (Plea Tr. at 29.) The guidelines range stipulated in the plea agreement was 135 to 168 months, and the 135-month sentence imposed by this Court was within that range; indeed, it was at the bottom of that range. Id. Accordingly, the waiver contained in the plea agreement was triggered.
Contrary to petitioner's argument, the ruling in Booker does not invalidate that waiver. "[A] defendant who, prior to January 12, 2005 [as noted above, the date of the Supreme Court's decision in Booker], entered an otherwise enforceable plea agreement that included a waiver of right to appeal a sentence may not seek to withdraw his plea based on alleged mistake as to the mandatory nature of the United States Sentencing Guidelines."United States v. Roque, 421 F.3d 118, 121 (2d Cir. 2005); see also United States v. Morgan, 406 F.3d 135, 137 (2d Cir. 2005) (upholding plea agreement waiver provision even though defendant invoked Booker on appeal); United States v. Rodriguez, 416 F.3d 123, 128 (2d. Cir. 2005) (enforcing waiver of appeal rights to deny request for remand to the District Court for consideration of resentencing on the basis of Booker andCrosby); United States v. Williams, Nos. 05-civ-8165, 98-cr-608, 2006 U.S. Dist. LEXIS 49546, at *4-6 (S.D.N.Y. July 19, 2006) (denying section 2255 petition invoking Booker where defendant had a valid and enforceable waiver provision in his plea agreement). "As for defendants who entered a plea agreement with an appeal waiver before the Supreme Court decidedBooker . . . `the possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements.'" United States v. Oladimeji, Nos. 03-1534, 03-1541, 2006 U.S. App. LEXIS 23332, at *10 (2d Cir. Sept. 12, 2006) (quoting Morgan, 406 F.3d at 137).
B. Reneau's Waiver of His Right To Bring A Petition Pursuant To Section 2255 Is Valid And Enforceable
For Reneau's petition to succeed, he must therefore demonstrate that the waiver of his right to collaterally attack his sentence was invalid. Generally, a defendant's knowing and voluntary waiver of his right to bring a petition pursuant to section 2255 is enforceable. See, e.g., Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195-96 (2d Cir. 2002), cert. denied, 537 U.S. 1146 (2003); Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001) (per curiam); Muniz v. United States, 360 F. Supp. 2d 574, 576-77 (S.D.N.Y. 2005). Furthermore, an enforceable waiver bars claims based on grounds that arose after, as well as before, the agreement was signed.Garcia-Santos, 273 F.3d at 509. Although the waiver of collateral attack rights in a plea agreement may be unenforceable where the petitioner had ineffective assistance of counsel in connection with entering into the plea agreement itself, see Frederick, 308 F.3d at 195-96; United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001), the waiver will be enforced where the record reveals that the waiver was knowing and voluntary and that the ineffective assistance claim has no merit. See United States v. Monzon, 359 F.3d 110, 118-19 (2d Cir. 2004).
Such waivers are also unenforceable where: (1) the sentence imposed was based on constitutionally impermissible factors (such as race or ethnicity); (2) the government breached the plea agreement; or (3) the court failed to enunciate any rationale for the sentence. See United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000). Petitioner raises none of those exceptions, and, indeed, none are applicable here.
1. Reneau's Waiver Was Knowing And Voluntary
At the plea allocution on September 20, 2002, this Court conducted a thorough proceeding that fully complied with Fed.R.Crim.P. 11. The Court determined that Reneau was competent to plead guilty and had reviewed the case with his attorney. (Plea. Tr. at 2-5.) The Court also determined that Reneau understood the rights he was waiving by entering a plea of guilty. (Id. at 6-7.) Further, Reneau, who cannot read or write, confirmed that the plea agreement had been read to him and that he had understood and signed the plea agreement. (Id. at 11.) A waiver is knowing and voluntary where the petitioner has signed a written plea agreement, and has stated during the plea allocution that he has read and understood the plea agreement. See Garcia-Santos, 273 F.3d at 508. In addition, the Court confirmed with Reneau that no promises or threats had been made to induce him to plead guilty. (Plea. Tr. at 29.) The Court also inquired into the factual basis for Reneau's plea as to both counts. (Id. at 29-38.) Significantly, the Court also confirmed with Reneau that he understood that he was waiving his right to appeal or to challenge the plea agreement by habeas corpus petition. (Id. at 29.)
At his sentencing on June 26, 2003, Reneau was questioned by the Court regarding his decision not to seek to withdraw his guilty plea. In the course of that colloquy, the Court again asked Reneau whether he understood that he was waiving his right to appeal or to collaterally attack the sentence. (Sent. Tr. at 27.) As he had during the plea allocution, Reneau affirmed that he understood. (Id.) Reneau's sworn statements made in open court carry a strong presumption of truthfulness, Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 52 L.Ed. 2d 136 (1977), and the Court is entitled to rely on those statements. See Hernandez, 242 F.3d at 112;United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992). Moreover, the Second Circuit has already found that Reneau's waiver was knowing and voluntary, despite the fact that "Reneau has only a second grade education and cannot read or write."See Grinage, 117 Fed. Appx. at 138. Accordingly, the record reflects that Reneau's plea, including the waiver, was knowing and voluntary.
2. Reneau Did Not Receive Ineffective Assistance Of Counsel
Nonetheless, Reneau argues that his representation by counsel at the time of the plea agreement was ineffective in several respects and therefore invalidates the plea. To prevail on a claim of ineffective assistance of counsel, Reneau must show that his attorney's representation fell below an objective standard of reasonableness, Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and that there is a "reasonable probability" that the outcome of the proceeding would have been different but for the counsel's error. Id. at 694.See Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (holding that the two-part Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome."Strickland, 466 U.S. at 694. When assessing counsel's performance, a court "must judge his conduct on the basis of the facts of the particular case, `viewed as of the time of counsel's conduct,' and may not use hindsight to second-guess his strategy choices." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting Strickland, 466 U.S. at 690). The reviewing court must afford a "`strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" United States v. Jones, 918 F.2d 9, 12 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689).
Reneau alleges that counsel refused to listen to his account of the facts leading up to his arrest in New Mexico or to consider possible defenses to the charges against Reneau, and instead "instructed" Reneau to plead guilty. (Petitioner's Opposition To Government's Letter Response dated May 2, 2006 ("Pet. Opp.") at 7-8.) In addition, Reneau claims that he was confused by the proceedings surrounding the plea and that counsel failed to provide him with a full understanding of those proceedings. (Declaration of Mark Reneau at 2, attached to Pet. Opp.) Reneau further claims that counsel did not read relevant documents such as the plea agreement to him "word-for-word" or allow Reneau to ask questions about the plea agreement. Id.
Employing the Strickland standard to these allegations, Reneau cannot establish that he entered the plea agreement without constitutionally effective counsel. The record contradicts Reneau's claims that counsel failed to adequately discuss with him the terms of his plea agreement or to advise him of his rights prior to entering the plea. As noted above, Reneau confirmed at the plea allocution that he understood the government's claims against him and had discussed the charges with his attorney. (Plea Tr. at 22.) He confirmed that he was satisfied with his attorney and that he understood all of the rights he was giving up by entering a plea of guilty. (Id. at 5-8.) Furthermore, the Court independently went over those rights with Reneau in the course of the plea allocution. Id. In the face of Reneau's statements at his plea allocution and his express affirmation at his sentencing that he no longer sought to withdraw his plea, Reneau's assertion now that counsel failed to adequately advise him in connection with his plea agreement is insufficient to establish ineffective assistance of counsel for purposes of invalidating the waiver.
Even if Reneau could show that his attorney's representation at the plea stage was objectively unreasonable, he cannot demonstrate prejudice as a result of any of the alleged errors.See Strickland, 466 U.S. at 694. First, the Second Circuit has already rejected several of the substantive arguments that Reneau raises again in this petition, including the claim that the conduct to which he allocuted in his plea did not occur during the time period charged in the information and that his waiver of venue with respect to conduct that took place in New Mexico was somehow improper. See Grinage, 117 Fed. Appx. at 138. Second, Reneau's objection to the quantity of PCP for which he was convicted simply has no basis. Reneau admitted during the plea allocution that he had transported PCP from California to New York on "four or five" occasions, and that on each occasion he transported "anywhere from a half gallon to two gallons." (Plea Tr. at 32-33.) Indeed, when he was arrested, he was found in possession of 5.4 kilograms of PCP. See Grinage, 117 Fed. Appx. at 137. There was more than an adequate basis in the allocution for a finding that Reneau could be held responsible for in excess of 30 kilograms of PCP.
Given these factors and taking into account the totality of the record in this case, Reneau's counsel neither acted unreasonably under the Strickland standard, nor was Reneau prejudiced by his attorney's negotiation of the plea agreement. To the contrary, Reneau received certain benefits by pleading guilty and stipulating to his guidelines sentencing range. As a result of entering into the plea agreement, Reneau received a sentence which did not include any role enhancement and, in fact, included reductions in offense level pursuant to the "safety valve" provision of the guidelines as well as for acceptance of responsibility. (Plea Agmt. at 2.) The plea agreement also afforded Reneau immunity from further prosecution for participation in the charged drug conspiracy for the period charged in the information. Id. at 1-2.
Because petitioner's waiver of his right to collaterally attack his sentence was knowing and voluntary, and because there is no merit to his claim that he received constitutionally ineffective representation in entering his plea agreement, the waiver provision is enforceable. See Monzon, 359 F.3d at 119. Accordingly, petitioner's separate claims of ineffective assistance of counsel at sentencing and on appeal are barred.
III. There Is No Need For A Factual Hearing
Reneau's request for a factual hearing on his claims that he was misled by counsel and received ineffective assistance is denied. Section 2255 provides that a hearing is unnecessary where "the motion and the files of the records of the case conclusively show that the petitioner is entitled to no relief." 28 U.S.C. § 2255. The record in this case, including the written plea agreement, the transcripts of the plea allocution and sentencing, and the Summary Order of the Second Circuit, establish that Reneau is not entitled to any relief, and thus an evidentiary hearing is not warranted. See Chang v. United States, 250 F.3d 79, 85-86 (2d Cir. 2001).
IV. Conclusion
Because Reneau knowingly and voluntarily waived his right to collaterally attack his sentence, did not receive ineffective assistance of counsel, and is not entitled to any relief pursuant to United States v. Booker, Reneau's petition to vacate, set aside or correct his sentence is denied.
Further, because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-113 (2d Cir. 2000); Soto v. United States, 185 F.3d 48, 51-53 (2d Cir. 1997). Finally, pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
SO ORDERED.