Delutro v. United States
| Decision Date | 16 September 2014 |
| Docket Number | 11-CV-2755 (CBA) |
| Parties | JOHN ANTHONY DELUTRO, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
NOT FOR PUBLICATION
Petitioner John Delutro ("Delutro"), proceeding pro se, filed this motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, seeking to vacate, set aside or correct his sentence. Delutro pleaded guilty to conspiracy to commit robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, and was sentenced to a 240 month term of imprisonment. Delutro claims that habeas relief is warranted on several grounds, none of which are meritorious. For the reasons stated below, this Court denies his petition.
On December 2, 2009, the Government filed a third superseding indictment charging Delutro with three counts: conspiracy to commit robbery, attempted robbery, and possession and use of a firearm in furtherance of the charged robbery. On February 9, 2010, Delutro entered into a plea agreement with the Government and pled guilty to Count One of that indictment, conspiracy to commit robbery. The conspiracy count carried a 20-year maximum sentence. The plea estimated that Delutro had a sentencing guideline offense level of 43 and a Criminal History Category I, resulting in a sentencing range of life in prison. Delutro's sentence was limited by themaximum sentence that could be imposed on the single count to which he pled.1 Delutro stipulated that the guideline calculation was correct, that the statutory maximum of 240 months imprisonment was the appropriate sentence, and agreed not to advocate for a sentence below the statutory maximum of 240 months. Delutro further agreed to waive his right to appeal or otherwise challenge his sentence, including pursuant to 28 U.S.C. § 2255, if the Court imposed a sentence of 240 months or less.
Delutro entered his guilty plea before this Court on February 9, 2010. At his plea hearing, the Court informed Delutro:
[I]f instead of going to trial, you plead guilty to the crime charged . . . you will be giving up your right to a trial and all the other rights I've discussed. There will be no trial in this case and no right to any appeal on the question of whether you did or did not commit the crime. . . . Do you understand? (Plea Tr. at 9.)
Delutro answered, "Yes, Your Honor." (Id.)
Turning to the plea agreement, the Court asked Delutro if he read the agreement and Delutro indicated that he had. The Court then specifically inquired about Delutro's waiver of his right to file an appeal or challenge his sentence through a § 2255 petition:
THE COURT: At Paragraph 4 of your agreement, it says, "The defendant agrees not to file an appeal or otherwise challenge by petition pursuant to 28 U.S.C. Section 2255 . . . the conviction, or sentence in the event that the Court imposes a term of imprisonment of 240 months or below."
Now, what I understand that to mean is that if I give you what is, in essence, the maximum sentence here 20 years, that you have agreed not to challenge that sentence; and that means even if you think I made some mistake in imposing. Even if you think I was wrong about how I calculated the guidelines, you are still giving up your right to appeal the sentence by virtue of the plea agreement. Do you understand that?
The Court next inquired about Delutro's agreement not to seek a sentence below 240 months.
The Court sought to ensure that Delutro was adequately represented by counsel during the plea process.
Finally, the Court verified that Delutro's guilty plea was not coerced.
Explaining his role in the conspiracy, Delutro stated that he conspired to rob an individual he knew to be carrying a large amount of jewelry and admitted that he was at the location of the robbery on the day of the robbery. (Id. at 24-26.) The Court accepted Delutro's guilty plea. (Id. at 27.)
At his sentencing hearing, Delutro again affirmed that he was satisfied with his counsel's representation, (Sentencing Tr. at 3) and that he waived his right to appeal (id. at 16). He indicated that he "tried to take responsibility as soon as possible," and that "the minute my attorney asked me to enter into a plea agreement with the Government . . . that's exactly what I did." (Id. at 14.) The Court sentenced Delutro to 240 months in prison. (Id. at 16.)
Delutro filed an initial timely petition and several subsequent untimely petitions asserting claims that he argues relate back to his initial petition. Delutro's initial § 2255 contended that he was denied effective assistance of counsel in violation of the sixth amendment because his attorney Arnold N. Kriss ("Kriss"): (1) threatened to withdraw from the case unless he pleaded guilty, (2) enlisted Delutro's father and uncle to force him into pleading guilty, and (3) predicted that he would receive a sentence of life in prison if he proceeded to trial. (Pet. Mem. at 4-5.) Delutro requested that this Court hold an evidentiary hearing on his claim that he received ineffective assistance, or in the alternative, vacate his sentence, permit him to withdraw his guilty plea, and allow his case to proceed to trial. (Id. at 10.)
On August 30, 2011, the Government filed a response in opposition to Delutro's habeas petition containing an affidavit from Kriss. Following the Government's response, Delutro sought discovery and additional time to file his reply. This Court denied Delutro's discovery request and granted him additional time to file his reply. Delutro filed his reply on February 22, 2012. This reply, for the first time, claimed that Kriss incorrectly advised Delutro and Delutro'sfather that Delutro was charged with Count Four of the Third Superseding Indictment, a murder count.2
In subsequent filings, Delutro sought to amend his initial petition to add (1) citations to relevant case law; (2) a claim that his attorney incorrectly informed him that he was charged with a murder count, as referenced in his reply brief; (3) a claim of ineffective assistance of counsel on the basis that Kriss failed to properly explain how the offense level was calculated under the sentencing guidelines, and (4) a claim that there was an insufficient factual basis to support his guilty plea. This Court ordered additional briefing on these proposed amendments and the Government and Delutro were each provided an opportunity to file briefs in response to that order.3
In support of his motions, Delutro submitted two of his own affidavits and a third affidavit of his father, Peter Delutro ("Peter"). In his first affidavit, Delutro averred that he repeatedly told Kriss that he did not want to enter a guilty plea because he was innocent, but that Kriss nevertheless continuously pressured him to enter a guilty plea. Delutro stated that Kriss represented that a guilty plea would result in a sentence below 20 years. (Delutro Aff. ¶¶ 2-5.) As a result of this disagreement, Delutro claimed that the attorney client relationship broke down and that he refused to meet with Kriss. (Id. ¶ 7.) According to Delutro, Kriss then enlisted the support of Delutro's father and uncle to convince Delutro to plead guilty. (Id. ¶ 8.) Delutro swore that he only pled guilty because of the pressure he was receiving from his father and uncle, because Kriss threatened to withdraw from the case, and because he feared that as a result ofKriss's withdrawal he would have to proceed to trial unrepresented and could possibly receive a life sentence. (Id. ¶¶ 8, 9.)
The second affidavit repeated many of the assertions contained in the first affidavit. He added that he chose not to participate in the robbery and "took necessary steps to renounce my participation in the robbery of the jeweler." (Delutro Aff. II ¶¶ 3, 4, 12.) Delutro further claimed that his co-defendants testified that he withdrew from the conspiracy.4 (Id. ¶¶ 9, 10). Finally, according to Delutro, Kriss incorrectly informed him that he was named in Count 4 of the Third Superseding Indictment, a murder court. (Id. ¶¶ 10, 11.)
In his affidavit, Delutro's father stated that he was unaware of the circumstances that led the breakdown of the attorney...
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