Allen v. United States

Decision Date03 April 2016
Docket Number10-CR-358S,14-CV-56S
PartiesLEONARD ALLEN, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.
CourtU.S. District Court — Western District of New York
DECISION AND ORDER
I. INTRODUCTION

Presently before this Court is the Motion of pro se Petitioner Leonard Allen, Jr. to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. For the reasons discussed below, Petitioner's § 2255 motion is denied.

II. BACKGROUND

On January 27, 2012, Petitioner appeared before this Court and pled guilty to Count 2 of the Indictment, filed on November 23, 2010, charging a violation of Title 21, United States Code, Section 841(a)(1) (possession with the intent to distribute, and distribution of, heroin). (See Docket No. 5.) The plea agreement signed by Petitioner reflects his understanding that the maximum penalty that could be imposed at sentencing included a twenty-year term of imprisonment and a fine of $1,000,000. (Plea Agreement ¶ 1, Docket No. 26.)

In the plea agreement, Petitioner acknowledged two prior controlled substance offenses: (1) Criminal Sale of Controlled Substance, Third Degree, for which he was convicted on September 10, 1992 in Suffolk County Court, New York and sentenced to three and a half to seven years imprisonment; and (2) Manufacture/Distribution of Controlled Substance, Second Degree, for which he was convicted on May 4, 2001 in Bergen County Superior Court, New Jersey and sentenced to five years imprisonment. (Id. ¶ 8.) The Petitioner further acknowledged that, due to these prior state controlled substance offenses, he would be considered a "Career Offender" pursuant to U.S.S.G. § 4B1.1(b)(3). (Id.) Pursuant to 21 U.S.C.A. § 851, this Court inquired during the plea colloquy whether Petitioner affirmed or denied these convictions; Petitioner affirmed them. (Transcript of Plea Hearing at 13, Docket No. 37.)

Due to the Career Offender enhancement, Petitioner's guideline sentencing range was significantly increased. The guideline sentencing range set forth in the plea agreement is 151 to 188 months. (Plea Agreement ¶ 11, Docket No. 26.) In his Sentencing Memorandum, Petitioner argued that he should be sentenced at the bottom of that range because the crime to which he pled guilty would have had a guideline sentencing range of only 15 to 21 months if he had not been considered a Career Offender. (Docket No. 29 at 6.)

By entering into the plea agreement Petitioner "knowingly waive[d] the right to appeal and collaterally attack any component of a sentence imposed by the Court which falls within or is less than the sentencing range for imprisonment, a fine and supervised release set forth in Section III, ¶ 11, . . . notwithstanding the manner in which the Court determines the sentence." (Id. ¶ 19.) Petitioner further understood "that by agreeing to not collaterally attack the sentence, [Petitioner] is waiving the right to challenge the sentence in the event that in the future [Petitioner] becomes aware of previously unknown facts or a change in the law which the [Petitioner] believes would justify a decrease in [his] sentence." (Id. ¶ 20.)

Petitioner was sentenced on May 7, 2012 to a term of incarceration of 120 months, supervised release of three years, and no fines. (Docket No. 31.) The incarceration sentence was below the guideline sentencing range set forth in the plea agreement of 151 to 188 months; the term of supervised release was within the range set forth in the plea agreement. (Plea Agreement ¶ 11, Docket No. 26.) Petitioner filed an appeal which was dismissed by the United States Court of Appeals for the Second Circuit on March 8, 2013. (#12-2084.) The instant § 2255 motion was filed by Petitioner on January 23, 2014. (Docket No. 42.) Respondent filed an opposing Affidavit on March 14, 2014. (Docket No. 45.) Petitioner did not submit a reply.

III. DISCUSSION
A. Petitioner's § 2255 Motion

Twenty-eight U.S.C. § 2255 allows federal prisoners to challenge the constitutionality of their sentences. That section provides, in pertinent part, that:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). The Second Circuit has held that a "collateral attack on a final judgment in a criminal case is generally available under § 2255 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 complete miscarriage of justice." Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996) (per curiam) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (internal quotation marksomitted)). Petitioner bears the burden of proving such a fundamental defect. See Galviz Zapata v. United States, 431 F.3d 395, 399 (2d Cir. 2005) (citing Williams v. United States, 481 F.2d 339, 346 (2d Cir. 1973)).

Petitioner makes two arguments in his motion. First, Petitioner contends that his attorney failed to provide effective assistance because she did not challenge the prior convictions that formed the basis of his "Career Offender" enhancement. Second, Petitioner contends that this Court did not have jurisdiction over the crimes charged in the indictment.

1. Ineffective Assistance of Counsel

As part of his plea agreement, Petitioner "knowingly waive[d] the right to appeal and collaterally attack any component of a sentence imposed by the Court which falls within or is less than the [agreed] sentencing range." (Plea Agreement ¶ 19.) It is by now well established that a knowing and voluntary waiver made as part of a plea agreement is generally enforceable. United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011); United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001). "An enforceable waiver bars claims based on grounds that arose after, as well as before, the [plea] agreement was signed." Muniz v. United States, 360 F. Supp. 2d 574, 577 (S.D.N.Y. 2005). Here, Petitioner's sentence for imprisonment fell below the 151 to 188 months agreed guideline range, rendering the waiver enforceable.

"However, a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured, here, the plea agreement." Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002), cert. denied, 537 U.S. 1146 (2003). In challenging counsel's effectiveness inconnection with the plea agreement itself, a petitioner is challenging the constitutionality of the process by which he waived his right to collaterally attack the sentence. Parisi v. United States, 529 F.3d 134, 138 (2d Cir. 2008), cert. denied, 555 U.S. 1197 (2009). Specifically, "although challenging the attorney's role in shaping the defendant's bargaining position cannot avoid the waiver, challenging the attorney's advice about that bargaining position, by connecting the knowing and voluntary nature of the defendant's plea decision with the attorney's conduct, does." Id. at 138-39 (emphasis in original).

Accordingly, this Court must consider whether Petitioner states "a 'meritorious' claim that 'the waiver was the result of ineffective assistance of counsel.'" Brown v. United States, 637 F. Supp. 2d 212, 217 (S.D.N.Y. 2009) (quoting United States v. Monzon, 359 F.3d 110, 118-19 (2d Cir. 2004)). Where, as here, a defendant's conviction has been secured by way of a plea agreement, a defendant asserting an ineffective assistance of counsel claim must demonstrate that counsel's performance fell below an objective standard of reasonableness, and that this deficiency in performance affected the outcome of the plea process. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); see Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a strong presumption that a trial counsel's conduct falls within the range of reasonable professional assistance and, absent the complete lack of tactical justification, courts will generally not second-guess strategic decisions. United States v. Cohen, 427 F.3d 164, 170-71 (2d Cir. 2005).

Construing his pro se arguments liberally, as this Court must, Marmolejo v. United States, 196 F.3d 377, 378 (2d Cir. Jan. 26, 1999) (per curiam), Petitioner allegeshe entered into the plea negotiations due to his attorney's representation that she would investigate the prior convictions underlying a potential Career Criminal enhancement, and that she failed do so. (Petition at 2 (Petitioner was "convinced by counsel that a plea of guilty was the path of least resistance" and he "followed that advice with an understanding [that] counsel would look into his prior convictions in order to avoid the Career Offender enhancement. However, once the plea was induced by the agreement[,] counsel conducted no such investigation.").) Petitioner contends that there are several "sure fire" bases for challenging the prior convictions and, therefore, "[u]ndoubtedly, had counsel conducted the investigation, the prior convictions would not have enhanced [Petitioner's] sentence . . . ." (Id. at 36.)

Even if Petitioner "could establish that this failure was objectively unreasonable, he cannot prove that, but for this failure, the outcome of the case would have been different." See United States v. Bagley, 216 F.3d 1073 (2d Cir. 2000) (table). As noted below, Petitioner has presented no valid basis on which to exclude the prior convictions and, moreover, Petitioner "could not challenge the validity (as opposed to the fact) of his prior felony...

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