GARCIA-GIRALDO v. US

• Decision Date: 08 March 2010
• Docket Number: No. 07 Civ. 9861(JGK).,07 Civ. 9861(JGK).
• Parties: Jose Jairo GARCIA-GIRALDO, Petitioner, v. UNITED STATES, Respondent.
• Court: U.S. District Court — Southern District of New York

691 F. Supp.2d 500

Jose Jairo GARCIA-GIRALDO, Petitioner, v. UNITED STATES, Respondent.

No. 07 Civ. 9861(JGK).

United States District Court, S.D. New York.

March 8, 2010.

Jose Jairo Garcia-Giraldo, pro se.

Kevin Ronald Puvalowski, U.S. Attorney's Office, SDNY, New York, NY, for Respondent.

OPINION AND ORDER

JOHN G. KOELTL, District Judge.

The petitioner, Jose Jairo Garcia-Giraldo, challenges his conviction and sentence pursuant to 28 U.S.C. § 2255. He pleaded guilty before then Chief Judge Mukasey to one count of conspiracy to import heroin into the United States in violation of 21 U.S.C. § 963. The petitioner pleaded guilty without a plea agreement. The petitioner thereafter entered into a sentencing agreement in which he stipulated to a Sentencing Guideline Range of 168-210 months' imprisonment. The sentencing agreement contained a provision waiving the right to appeal or litigate under 28 U.S.C. § 2255 or 2241. On August 29, 2006, the petitioner was sentenced before Chief Judge Mukasey primarily to 144 months' imprisonment. Thereafter, the Court of Appeals for the Second Circuit summarily affirmed the petitioner's conviction.

The petitioner raises several claims. He argues that his trial counsel provided ineffective assistance of counsel by failing to advise him about a Government plea offer. He also claims that his plea was involuntary and that his subsequent agreement to the sentencing agreement was also involuntary. In addition, he claims that his sentence is unreasonable. This Court appointed counsel for the petitioner and held an evidentiary hearing on January 25, 2010, at which both the petitioner and his trial counsel testified. At the hearing, the petitioner's new counsel raised the additional argument that the petitioner's trial counsel was under a conflict of interest at the time he represented the petitioner because the petitioner's trial counsel sought the petitioner's assistance in obtaining other clients from Colombia.

Having considered the parties' submissions and having assessed the credibility of the witnesses, the Court makes the following findings of fact and reaches the following conclusions of law.

I.

In June 2002, a superseding indictment was filed charging the petitioner with conspiring, in violation of 21 U.S.C. § 963, to import one kilogram and more of heroin into the United States in violation of 21 U.S.C. §§ 812, 952, 960(a)(1), and 960(b)(1)(A). The petitioner was arrested in Colombia on June 11, 2002, and extradited to the United States on June 24, 2003. (Pre-Sentence Report ("PSR") 1.) Trial counsel testified at the evidentiary hearing that he was appointed by Chief Judge Mukasey in 2003 to represent the petitioner. He represented the petitioner from the arraignment through the petitioner's sentencing before Chief Judge Mukasey.

Trial counsel testified credibly that he saw the petitioner on numerous occasions at the Metropolitan Detention Center ("MDC") and spent over a hundred hours visiting with the petitioner. Trial counsel had plea discussions with Assistant United States Attorney Marc Racanelli and then with his successor, Kevin Puvalowski. In March 2004, the Government provided a letter, pursuant to United States v. Pimentel, 932 F.2d 1029 (2d Cir.1991), that calculated the Government's view of the petitioner's United States Sentencing Guideline ("U.S.S.G.") Range as 262-327 months. (Def. Ex. A.) The Government provided a second Pimentel letter dated January 10, 2006. (Def. Ex. B.) The Government's position with respect to the petitioner's Guideline Sentencing Range was the same in both letters. These calculations were based on the Government's contention that the conspiracy involved at least 30 kilograms of heroin and that the base offense level was therefore 38 under U.S.S.G. § 2D1.1(c), that the petitioner should receive a 4 level upward adjustment under U.S.S.G § 3B1.1(a) because he was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, and that he should be afforded a 3 level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b). With offense level 39 and a criminal history category of I, the resulting Guideline Sentencing Range was 262 to 327 months. These Pimentel letters were in error by including Count Two of the indictment because the petitioner was not charged in that count, but that error did not change the Sentencing Guideline calculations. The Government provided a third Pimentel letter dated January 27, 2006 that correctly indicated that the petitioner was charged only in Count One of the indictment with conspiracy to import more than one kilogram of heroin in violation of 21 U.S.C. § 963. (Government ("Gov.") Ex. 1.) The Pimentel letter contained the same Guideline Sentence calculations and concluded that the petitioner's Guideline Sentence Range was 262 to 327 months' imprisonment.

While the petitioner denies that his trial counsel discussed a plea offer with him, the overwhelming credible evidence is to the contrary. Trial counsel testified that he first discussed a possible plea agreement with the petitioner during a visit to the MDC on December 26, 2005, and his notes support that testimony. (Gov. Ex. 8.) Trial counsel testified credibly, supported by notes of numerous meetings with the petitioner, that trial counsel discussed the possible plea agreement with the petitioner, the advantages and disadvantages of the plea agreement, and the evidence against the petitioner. The first plea agreement that has been located is a February 15, 2006 letter from the Government. (Gov. Ex. 2.) However, the terms of that potential agreement were plainly discussed by trial counsel with the petitioner prior to that date, as trial counsel's notes reflect. The plea agreement provided for a Stipulated Guideline Range of 135 to 168 months. The Guideline Sentence Range was based on a quantity of heroin of more than 10 and less than 30 kilograms and contained no enhancement for a managerial role in the offense. The proposed plea agreement also provided that the parties agreed that the petitioner would not seek to qualify for safety valve relief from the mandatory sentencing provisions of Title 21, which would have required a sentence of no less than 120 months. See 21 U.S.C. §§ 960(b)(1)(A) & 963. The proposed agreement would have allowed the petitioner to argue that the Guideline Sentence should be reduced in light of all the factors in 18 U.S.C. § 3553(a). However, under the agreement, the petitioner's sentence could not be less than the mandatory minimum sentence.

Trial counsel discussed with the petitioner the advantages and disadvantages of entering into the plea agreement. Trial counsel told the petitioner that he should consider himself lucky if his sentence were only 120 months. Trial counsel's notes reflect that he discussed the evidence with the petitioner. The petitioner was not satisfied with the proposed plea agreement because he pointed to the fact that his brother had received a sentence of only 43 months. (Gov. Ex. 7.) Trial counsel explained that the only way the petitioner could receive a sentence lower than the statutory mandatory minimum would be to qualify for the statutory safety valve under 18 U.S.C. § 3553(f) which required the petitioner to establish, among other things, that, despite the Government's view, he was not an organizer, manager, or supervisor of others in the offense. See 18 U.S.C. § 3553(f)(4). This was contrary to the Government's view of the petitioner's role in the offense, and the only way for the petitioner to plead guilty and qualify for the safety valve was to reject the plea agreement, plead guilty to the indictment, and proceed to a Fatico hearing at which the petitioner could attempt to prove that he qualified for safety valve treatment. See United States v. Fatico, 603 F.2d 1053 (2d Cir.1979). Trial counsel warned that there were a lot of drugs involved in the offense, and that he had no control over the witnesses at a hearing.

In view of the petitioner's desire to attempt to obtain a sentence less than the mandatory minimum, trial counsel recommended that the petitioner proceed to plead guilty without a plea agreement and attempt to obtain the advantage of the safety valve at a Fatico hearing. Trial counsel testified that it was the petitioner's decision to reject the plea agreement. Trial counsel's testimony was credible and was supported by his contemporaneous notes. (Gov. Ex. 8.)

It is plain that trial counsel discussed the relative merits of the plea agreement with the petitioner and that it was the petitioner's knowing and voluntary decision to proceed to plead guilty without a plea agreement. The petitioner's statements that his trial counsel did not disclose the plea agreement to him are not credible. (Tr. 65, 70.)

The petitioner's claims that his trial counsel somehow forced him to plead guilty are also not credible. Trial counsel met extensively with the petitioner in preparation for the petitioner's guilty plea. The contemporaneous notes reflect an extensive and conscientious discussion of the merits of entering into the plea agreement or pleading guilty without the plea agreement. (Gov. Ex. 8.) Contrary to the petitioner's allegation, trial counsel did not promise the petitioner that if he pleaded guilty, the Court would sentence the petitioner to any specific sentence. These conclusions are also supported by the actual transcript of the guilty plea.

On February 21, 2006, the petitioner pleaded guilty before Chief Judge Mukasey to Count One of the Indictment, which charged him with conspiracy to import into the United States one kilogram and more of heroin, in violation of 21 U.S.C. § 963. Defense counsel confirmed on the record that the petitioner had decided to plead guilty without entering into the plea agreement with the Government. At the beginning of the plea the petitioner's trial counsel stated:

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