Gonzalez v. United States
| Decision Date | 29 July 2019 |
| Docket Number | 17cv1093 |
| Parties | DIONNE RAUL GONZALEZ, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Pro se movant Dionne Raul Gonzalez moves to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, Gonzalez's motion is denied.
In 2012, Gonzalez was indicted for conspiracy to commit Hobbs Act robbery and conspiracy to possess and distribute narcotics. (Criminal ECF No. 11.)1 On February 7, 2013, the Government filed a superseding indictment, adding a third count charging him with using and carrying a firearm pursuant to 18 U.S.C. § 924(c). (Criminal ECF No. 33.) On March 1, 2013, pursuant to a plea agreement, Gonzalez pled guilty to the Hobbs Act robbery and narcotics conspiracy counts before Magistrate Judge Frank Maas. (Criminal ECF No. 55 at 6-7; Criminal ECF No. 119 at 1.)
During his plea allocution, Gonzalez affirmed that he was clear headed and generally understood the proceedings, he had not ingested any drugs or alcohol aside from prescribed medications, and his prescribed medications did not affect his ability to understandthe proceedings. (Criminal ECF No. 55 at 4-6.) Gonzalez also affirmed that he understood the terms of his plea agreement, including a provision waiving his right to appeal or otherwise challenge a sentence of 168 months or less. (Criminal ECF No. 55 at 13-14.)
On May 17, 2013, Gonzalez's attorney, Andres Aranda, requested a court-ordered psychiatric examination of the Defendant in connection with sentencing. (Criminal ECF No. 59.) In that letter application, Aranda stated that he believed Gonzalez was "bi-polar," "schizophrenic," and "slow minded." (Criminal ECF No. 59.) While this Court denied that application, it explained that the Defendant could retain a psychiatrist for an evaluation and that "[i]f counsel wishe[d] to proceed in that manner, he should submit a new application." (Criminal ECF No. 59.) No such application was filed.
On June 29, 2013, Aranda informed this Court that Gonzalez sought to withdraw his guilty plea and had "ordered [Aranda] not to file any papers." (Criminal ECF No. 79.) Specifically, Aranda stated that Gonzalez believed "he [pled guilty] pursuant to a Pimentel Letter and not a plea agreement." (Criminal ECF No. 79.) And in a letter submitted by Gonzalez that same day, Gonzalez also explained that he believed he "would be making an open plea to the court" rather than entering into a plea agreement. (Criminal ECF No. 80.) Thus, Gonzalez asked to "withdraw that Plea[] and enter an Open Plea to the Court." (Criminal ECF No. 80.)
Notably, Aranda's letter also described his efforts to review the plea agreement with his client, including visiting "the MDC twice to go over the [plea] agreement with [Gonzalez] and [that Aranda] spent at least [a] half hour at the Marshall's [sic] holding pens on the 4th floor going over the agreement with [Gonzalez] on the day he pled." (Criminal ECF No. 79.) Aranda also gave Gonzalez a copy of the plea agreement. (Criminal ECF No. 79.) Aranda further stated that he was concerned that Gonzalez ordered him not to file any motions becauseGonzalez "has been diagnosed as being both bi-polar and schizophrenic." (Criminal ECF No. 79.)
On July 3, 2013, this Court conducted a hearing to address Gonzalez's request to withdraw his guilty plea. (Criminal ECF No. 84.) At the hearing, Aranda stated that Gonzalez "has never said to me I want to withdraw my plea because I'm not guilty," but rather that he wanted to withdraw his plea, so he could plead guilty pursuant to a Pimentel letter. (Criminal ECF No. 84 at 4:1-4.) And Gonzalez explained that he did not want to go to trial but thought it would be "better for [him] to agree to a Pimentel letter" rather than be bound to a plea agreement. (Criminal ECF No. 84 at 5:7-25.) Moreover, the Government pointed out that if Gonzalez withdrew his plea, it would be free to prosecute the firearms charge, which carried a mandatory consecutive sentence of five years. (Criminal ECF No. 84 at 6-8.) The Government further explained that the mandatory minimum Gonzalez faced would increase from 10 years to 15 years if the § 924(c) count were included. (Criminal ECF No. 84 at 8:8-11.) Further, Aranda explained that "it's not in [Gonzalez's] best interest to go forth with a Pimentel letter." (Criminal ECF No. 84 at 7:7-13.)
During the hearing, Gonzalez explained that he "underst[oo]d a little bit" about the consequences of withdrawing his plea. (Criminal ECF No. 84 at 7:16-17.) Once again, Aranda requested a psychiatric evaluation, claiming that Gonzalez "tunes in and out." (Criminal ECF No. 84 at 9:4-13.) Ultimately, this Court afforded Gonzalez an opportunity to confer further with counsel about whether he wanted to withdraw his plea. (Criminal ECF No. 84 at 11.) On July 8, 2013, Aranda notified this Court that Gonzalez wished to maintain his guilty plea pursuant to the plea agreement. (Criminal ECF No. 82.)
On May 22, 2014, this Court accepted Gonzalez's guilty plea as "knowing and voluntary" and sentenced him to 126 months' imprisonment, plus supervised release. (Criminal ECF No. 137 at 19-20; Criminal ECF No. 119 at 2-3.) During his sentencing hearing, Aranda suggested a downward departure from the sentencing guidelines because of Gonzalez's "mental problems." (Criminal ECF No. 137 at 6-8.) At that time, this Court noted that a "diminished mental capacity" was "certainly not evident to the Court from his conduct in organizing a group and persuading them to travel with him in two vehicles to rob a warehouse, nor is it obvious to this Court in [Gonzalez's] very organized remarks to the Court here today." (Criminal ECF No. 137 at 20:19-23.)
Gonzalez appealed the judgment of conviction. The Second Circuit dismissed his appeal for failure to demonstrate that the waiver of Gonzalez's appellate rights was unenforceable. (Criminal ECF No. 165.)
Now, Gonzalez seeks to set aside or vacate his sentence due to the ineffective assistance of counsel on the following grounds: (1) counsel failed to advise Gonzalez that his plea was pursuant to a plea agreement rather than a Pimentel letter, (2) counsel advised him to say "yes" to all questions at the guilty plea, (3) counsel has been suspended from the practice of law multiple times, and (4) counsel "gave [him] up . . . [to] help somebody else with the same prosecutor." (Mot. under 28 U.S.C. § 2255, ECF No. 1 ("Mot."), at 8.) In addition, Gonzalez claims that he was taking numerous psychiatric medications around the time of his guilty plea. (Mot. at 8.) Moreover, in his reply brief, Gonzalez argues that his counsel was ineffective because he (1) failed to file motions requested by Gonzalez, (2) never raised a "sentencingentrapment" or "manipulation" defense, (3) failed to preserve his right to appeal, and (4) failed to accept the guilty plea before a deadline, which led to the addition of the § 924(c) charge.2
Under 28 U.S.C. § 2255, a movant may collaterally attack his sentence by "mov[ing] the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). "In ruling on a motion under § 2255, the district court is required to hold a hearing '[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013) (quoting 28 U.S.C. § 2255). Indeed, "the filing of a motion pursuant to § 2255 does not automatically entitle the movant to a hearing; that section does not imply that there must be a hearing where the allegations are 'vague, conclusory, or palpably incredible.'" Gonzalez, 722 F.3d at 130 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). Ultimately, it is within this Court's discretion to determine whether a hearing is necessary. See Pham v. United States, 317 F.3d 178, 184 (2d Cir. 2003). And where, like here, the judge who presided over the underlying criminal proceeding also presides over the § 2255 motion, "a full-blown evidentiary hearing may not be necessary." Raysor v. United States, 647 F.3d 491, 494 (2d Cir. 2011). Accordingly, the Second Circuit permits a "middle road" of deciding any disputed facts on the basis of written submissions. Raysor, 647 F.3d at 494.
Collateral challenges conflict with "society's strong interest in the finality of criminal convictions," so movants are subject to a higher bar "to upset a conviction on acollateral, as opposed to direct, attack." Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010). Thus, to prevail on a § 2255 motion, a movant must show "constitutional error . . . or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Nnebe v. United States, 534 F.3d 87, 90 (2d Cir. 2008) (quotation marks omitted). In making such a showing, a movant "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, 722 F.3d at 131. And "a district court need not assume the credibility of [the movant's] factual assertions, as it would in civil cases, where the assertions are contradicted by the record in the underlying proceeding." Puglisi v. United States, 586 F.3d 209, 214 (2d Cir. 2009).
Because Gonzalez is proceeding pro se, his motion is held to "less stringent standards than [those] drafted by lawyers." Santiago v. United States, 187 F. Supp. 3d 387, 388 (S.D.N.Y. 2016) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); accord Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). And this Court must liberally construe his papers "to raise the strongest arguments they suggest." Green, 260 F.3d at 83 (quotation marks omitted). However, pro se litigants are "not...
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