Fernandez v. United States
| Decision Date | 12 September 2016 |
| Docket Number | 15-CV-2230 (JMF),12-CR-445 (JMF) |
| Parties | JUAN FERNANDEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Petitioner Juan Fernandez was convicted, following a guilty plea, of conspiracy to distribute or possess with the intent to distribute controlled substances and possession of a firearm during and in relation to a drug-trafficking crime, and sentenced principally to 195 months' imprisonment. (Docket No. 453).1 Proceeding pro se, he now moves, pursuant to Title 28, United States Code, Section 2255, to vacate, set aside, or correct his sentence, alleging that he received ineffective assistance of counsel in various ways. (Memorandum of Law in Support of Motion to Vacate (Docket No. 538) ("Pet'r's Mem.") 13). For the reasons that follow, Fernandez's petition is DENIED in its entirety.
On June 5, 2012, Fernandez was charged (in an indictment naming nineteen other defendants) with two counts: (1) conspiracy to distribute or possess with intent to distribute controlled substances, in violation of Title 21, United States Code, Sections 846 and 841(b)(1)(A); and (2) discharging a firearm during and in relation to a drug-trafficking offense,in violation of Title 18, United States Code, Sections 924(c)(1)(A)(iii) and 2. (Docket No. 2). Sarah Baumgartel of the Federal Defenders of New York was assigned to represent Fernandez. (Docket No. 61). On March 20, 2013 — after bringing an unsuccessful motion to suppress wiretap evidence (see Docket Nos. 144, 196) — Fernandez pleaded guilty, pursuant to a plea agreement, to the narcotics conspiracy charge and to a lesser included offense of the second count, namely possessing a firearm during and in relation to the drug-trafficking offense, in violation of Title 18, United States Code, Section 924(c)(1)(A)(i) and 2. (Government Memo in Opposition of Motion to Vacate (Docket No 552) ("Gov't Mem."), Ex. A, at 2-3). Notably, whereas the crimes with which Fernandez had been charged carried a combined mandatory minimum of 240 months' imprisonment, the crimes to which he pleaded guilty carried a combined mandatory minimum of 180 months' imprisonment. Additionally, in exchange for Fernandez's plea, the Government also agreed not to file a prior felony information (id. at 3), which would have resulted in a mandatory minimum of 240 months on Count One alone (and a combined mandatory minimum of 360 months). See 21 U.S.C. §§ 841(b)(1)(A), 851.
At the outset of the plea proceeding, Baumgartel, at Fernandez's request, made an extensive (and unusual) statement about the fairness of the federal narcotics laws and mandatory minimum sentences. (Docket No. 261 ("Plea Tr.") at 3-7). Addressing Fernandez, the Court responded by emphasizing as follows: (Id. at 8). Fernandez confirmed that he understood and that he wished to proceed with the guilty plea notwithstanding Baumartel's statement on his behalf. (Id. at 10). He went on to confirm, among other things, that he had discussed the charges against him and any possible defenses to those charges with Baumgartel, that Baumgartel had explained theconsequences of entering a plea of guilty to him, and that he was satisfied with Baumgartel's representation of him. (Id. at 12-13). In response to questioning, Fernandez further acknowledged that he understood the elements of the offenses to which he was pleading; that he understood the maximum and minimum sentences that applied to those crimes; that he had read the plea agreement; that he had discussed the plea agreement with Baumgartel; and that he fully understood the terms of the agreement. (Id. at 34-38). Most relevant here, Fernandez confirmed his understanding that, pursuant to the terms of the plea agreement, he was waiving his right to appeal or otherwise challenge (including in a motion pursuant to Section 2255) any sentence within or below the United States Sentencing Guidelines range to which the parties had stipulated — namely, 180 to 195 months' imprisonment. (Id. at 37; see Gov't Mem. Ex. 4, at 7).
On May 3, 2013, about a month and a half after Fernandez's plea, Baumgartel advised the Court that Fernandez wanted new counsel. (Docket No. 280). At a conference on May 9, 2013, Baumgartel proffered that Fernandez was "concerned" that she had given him "bad advice with respect to whether he should enter a plea" and that he had "talked about possibly withdrawing his plea," a course of action that she did not believe "would be in his interest." (Gov't Mem. Ex. C ( ) at 3). She explained that, in her view, "it would be extremely beneficial" for Fernandez to "consult with a different lawyer." (Id.). Speaking on his own behalf, Fernandez acknowledged that Baumgartel was "a good lawyer," but questioned her preparation for his case and indicated that they did not "see eye to eye." (Id. at 5). "I think I just need a second opinion," he continued. "I'm [sic] just need somebody to overlook [sic] my case again and see if something went wrong during the case, during the process." (Id. at 6). The Court appointed George Goltzer to replace Baumgartel, and expressly noted that Fernandezcould consult with Goltzer about whether to move to withdraw his guilty plea. (Id. at 4, 6; see also Docket No. 467 ( ) at 26-27). Fernandez ultimately stood by his plea.
When Goltzer was appointed, the Court adjourned sentencing to October 2, 2013. (Subst. Tr. at 8-9). Thereafter, at the parties' request, the Court adjourned sentencing three times to allow Fernandez an opportunity to cooperate with the Government. (See Docket Nos. 378, 419, 430). On February 28, 2014, after the Court denied the Government's request for a fourth adjournment, Fernandez appeared for sentencing. (Sent. Tr. at 46; Docket No. 453). At the outset of the proceeding, the Court confirmed that it had received and reviewed, among other things, Goltzer's sentencing submission on Fernandez's behalf, which requested a sentence of 180 months, the mandatory minimum. (Sent. Tr. at 3, 31). Fernandez then acknowledged that he had read the presentence report and discussed it with Goltzer. (Sent. Tr. at 4-5). Based upon evidence presented at the trial of one of Fernandez's co-defendants — evidence indicating that the drug conspiracy involved substantially larger quantities of drugs than either the plea agreement or the presentence report had reflected — the Court went on to find that the applicable Sentencing Guidelines range was 228 to 270 months' imprisonment. (Sent. Tr. at 17-18). Exercising its discretion under Title 18, United States Code, Section 3553(a), however, the Court sentenced Fernandez to a combined sentence of 195 months' imprisonment (135 months on Count One and 60 months, to be served consecutively, on Count Two). (Id. at 30-32). In explaining its leniency, the Court explicitly cited, among other things, "mitigating circumstances cited in Mr. Goltzer's letter." (Id. at 31). The Court explained that it was "not inclined to go as low as the mandatory minimum, as Mr. Goltzer [had] asked," in part because of "the amount of drugs involved" and the higher Sentencing Guidelines range. (Id. at 32).
At the conclusion of sentencing, the Court advised Fernandez that — to the extent he had "not given up [his] right to appeal through [his] plea of guilty and the plea agreement" — he had the right to appeal and that any notice of appeal had to be filed within fourteen days of entry of the judgment of conviction. (Id. at 38). Fernandez did not file a direct appeal.
Section 2255 permits a prisoner in federal custody to challenge his sentence on the ground that it "was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). As a general matter, a Section 2255 motion requires a hearing unless files and records conclusively show that the prisoner is entitled to no relief. See 28 U.S.C. § 2255(b); see also Machibroda v. United States, 368 U.S. 487, 494 (1962); Pham v. United States, 317 F.3d 178, 184 (2d Cir. 2003). No hearing is required, however, where the petitioner's allegations are "vague, conclusory, or palpably incredible." Machibroda, 368 U.S. at 495. Instead, to warrant a hearing, the petitioner "must set forth specific facts supported by competent evidence, raising detailed and controverted issues of fact that, if proved at a hearing, would entitle him to relief." Gonzalez v. United States, 722 F.3d 118, 131 (2d Cir. 2013). A district court has discretion to exercise its common sense when determining whether to hold a hearing and may investigate facts outside the record without the personal presence of the petitioner. See Machibroda, 368 U.S. at 495; see also, e.g., Chang v. United States, 250 F.3d 79, 85-86 (2d Cir. 2001).
In this case, Fernandez's only claim is that he received ineffective assistance of counsel, but he bases that claim on multiple alleged failings of both Baumgartel and Goltzer. In particular, liberally construed, see, e.g., Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013), Fernandez's petition alleges that he received ineffective assistance of counsel because(1) Baumgartel failed to inform him of the likely consequences of pleading guilty, including the maximum sentence if he was convicted at trial; (2) Baumgartel failed to conduct an adequate pretrial investigation; (3) Baumgartel failed to file substantive pre-trial motions; (4) Goltzer failed to review or explain the presentence report to him prior to sentencing; (5) Goltzer failed to file objections to the presentence report; (6) Goltzer failed to submit mitigating evidence at sentencing; (7) Goltzer failed to object to Fernandez's sentence as "substantively unreasonable"; and...
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United States v. Boamah, 14-cr-0673 (ALC)
...Aff. ¶¶ 18-19; Tr. 44:5-20. It was entirely appropriate for Strazza to do so here. See, e.g., Fernandez v. United States, No. 12-cr-445 (JMF), 2016 WL 4735370, at *4 n.2 (S.D.N.Y. Sept. 12, 2016) (noting that counsel often prepare written statements describing factual basis for guilty plea)......