Mendivelso v. U.S., 06 Civ 6929.

• Decision Date: 17 August 2007
• Docket Number: No. 06 Civ 6929.,06 Civ 6929.
• Citation: 507 F.Supp.2d 331
• Parties: Carlos MENDIVELSO, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

507 F.Supp.2d 331

Carlos MENDIVELSO, Petitioner, v. UNITED STATES of America, Respondent.

No. 06 Civ 6929.

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

August 17, 2007.

COPYRIGHT MATERIAL OMITTED

Carlos Mendivelso, Loretto, PA, pro se.

Michael J. Garcia, United States Attorney, Southern District of New York, by: Arianna R. Berg, Esq., Assistant United States Attorney, New York, NY, for Respondent.

OPINION

SWEET, District Judge.

Carlos Mendivelso ("Mendivelso" or the "Petitioner") has petitioned to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. His petition is opposed by the Government. For the reasons set forth below, the petition is denied.

Prior Proceedings

The Indictment (03 Cr. 156(RWS)), filed on February 4, 2003, contained two counts. Count One charged Mendivelso with conspiring to distribute and possess with intent to distribute one kilogram and more of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A), under 21 U.S.C. § 846. Count Two charged Mendivelso with the distribution and possession with intent to distribute approximately two kilograms of mixtures and substances containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A).

On May 12, 2003, Mendivelso pleaded guilty to Counts One and Two of the Indictment, pursuant to a written plea agreement ("Plea Agreement" or "Agreement"). The Agreement was executed that same day by Mendivelso, his counsel, and the Government, although the Agreement itself was dated April 22, 2003. (Agreement 1, 6.) In the Agreement, Mendivelso and the Government stipulated that Mendivelso was subject to a 120-month mandatory. minimum sentence, and that Mendivelso therefore had a Stipulated Sentencing Guidelines Range of 120 months' imprisonment. (Id.)

In the Plea Agreement, Mendivelso and the Government agreed that neither party would seek a downward or upward departure from the stipulated Guidelines range of 120 months' imprisonment. (Id. at 3). Mendivelso also stipulated that "he is not eligible for `safety valve' relief, pursuant to Title 18, United States Code, Section 3553(f) and/or for a reduction in sentence pursuant to U.S.S.G. Sections 2D1.1(b)(6) and 5C1.2 because he has not `truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.'" (Id. at 2-3). Finally, Mendivelso agreed he would "not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Sentencing Guidelines Range of 120 months' imprisonment ...." (Id. at 4.)

On May 12, 2003, Mendivelso appeared before Magistrate Judge Henry B. Pitman and entered a guilty plea to Counts One and Two of the Indictment. Before recommending the acceptance of Mendivelso's guilty plea, Magistrate Judge Pitman conducted a careful and thorough hearing which complied in all respects with Rule 11 of the Federal Rules of Criminal Procedure.

At the outset of the proceeding, Magistrate Judge Pitman determined that Mendivelso was competent to plead guilty and had the opportunity to review all aspects of his case with his attorney whose representation he found satisfactory. (Hearing Transcript, May 13, 2003 ("Plea Tr."), 3-7, 20.) Magistrate Judge Pitman also described to Mendivelso the nature of the charges contained in Counts One and Two of the Indictment and ensured that Mendivelso understood the elements of the offenses and the maximum penalties applicable to the offense, including the mandatory minimum ten-year term of imprisonment and the effect of the supervised release term. (Id. at 9-11.) Magistrate Judge Pitman also ensured that Mendivelso understood that his sentence would be governed by the Sentencing Guidelines, and that he had discussed the application of the Guidelines with his attorney. (Id. at 11-12.)

Magistrate Judge Pitman then directed Mendivelso's attention to his plea agreement with the Government and specifically described to Mendivelso certain provisions in the Agreement. Specifically, Magistrate Judge Pitman addressed the waiver of-appeal provision in the Agreement, confirming that Mendivelso was agreeing not to appeal or otherwise litigate any term of imprisonment equal to or below 120 months' imprisonment. (Id. at 14.)

Next, Magistrate Judge Pitman determined that Mendivelso understood the rights that he was waiving by pleading guilty, including his right: (a) to plead not guilty and proceed to trial; (b) to the assistance of appointed counsel at every stage of the proceedings; (c) to confront and cross-examine witnesses; (d) to compulsory process; and (e) against compelled self-incrimination. (Id. at 15-16.) Magistrate Judge Pitman also instructed Mendivelso on the presumption of innocence, the burden of proof, and standard of proof beyond a reasonable doubt. (Id. at 16.) Mendivelso stated that he understood these rights and was willing to waive them by pleading guilty. (Id. at 15-17.) Magistrate Judge Pitman also confirmed with Mendivelso that no promises or threats had been made to induce him to plead guilty. (Id. at 17.)

Next, Magistrate Judge Pitman inquired as to the factual basis for Mendivelso's plea. (Id. at 17-18.) In response, Mendivelso stated that on November 25, 2002, in Manhattan, he and others agreed to distribute one kilogram of heroin. (Id.)

Following the allocution, Magistrate Judge Pitman stated that he was satisfied that Mendivelso understood the nature of the charges against him and the consequences of his guilty plea, that Mendivelso was pleading voluntarily, and that Mendivelso's plea was supported by an independent basis in fact. (Id. at 20.) Magistrate Judge Pitman recommended that Mendivelso's guilty plea be accepted, (id.), and on May 22, 2003, the recommendation was adopted and Mendivelso's guilty plea accepted.

Before Mendivelso's sentencing, the Probation Office issued a Presentence Investigation Report ("PSR"). The Sentencing Guidelines calculations in the PSR accorded with Mendivelso's plea agreement. The PSR concluded that Mendivelso's Sentencing Guidelines range was 87 to 108 months, but also stated that Mendivelso faced a statutory mandatory minimum sentence of 120 months' imprisonment. (PSR ¶ 80.)

On April 7, 2004, Mendivelso appeared for sentencing. A sentencing hearing was conducted in accordance with Rule 32 of the Federal Rules of Criminal Procedure. Mendivelso's attorney confirmed that he and Mendivelso had received and reviewed the PSR and that there were no objections to the factual recitation or Sentencing Guidelines calculations contained therein. (Hearing Transcript, Apr. 7, 2004 ("Sent. Tr."), 2.) Mendivelso was sentenced to a term of 120 months' imprisonment and a five-year term of supervised release, and a mandatory $200 special assessment was imposed. (Id. at 3.) Mendivelso was advised that he had a right to appeal his sentence. (Id.)

On October 18, 2004, six months after his conviction became final, Mendivelso filed a notice of appeal with the Second Circuit. On January 7, 2005, his counsel Guy Oksenhendler ("Oksenhendler"), filed a motion to be dismissed as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). On January 29, 2005, the Government moved to dismiss the appeal because: (1) the notice was untimely; (2) there was an appellate waiver in the plea agreement; and (3) there were no non-frivolous issues for appeal. On March 23, 2006, the Second Circuit granted the motion to dismiss the appeal and granted Oksenhendler's motion to be dismissed as counsel.

Mendivelso, filed the instant petition for relief under 28 U.S.C. § 2255 on September 11, 2006. It was marked fully submitted on December 1, 2006. Mendivelso filed a supplemental submission on March 3, 2007.

The Petition

Mendivelso has challenged his conviction and sentence, arguing that but for the ineffectiveness rendered by his counsel, he would have received a lower sentence. Specifically, Mendivelso has contended that his attorney failed to request a top-level reduction in Mendivelso's Sentencing Guidelines range, pursuant to the "safety valve" provisions contained in 18 U.S.C. § 3553(f) and U.S.S.G. § 2D1.1(b)(6). In addition, Mendivelso has claimed that it was tantamount to "prosecutorial misconduct" for the Government to include in the Plea Agreement a waiver of safety valve treatment. Moreover, Mendivelso has contended that the Government improperly used an "implied threat" in the plea agreement by informing the defendant that if he sought safety valve treatment, the Government would be able to use the information against him. (Pet'r's Mem. in Supp. 4.)

In his March 3, 2007 supplemental submission, Mendivelso requested that his petition be held in abeyance pending the United States Supreme Court's decision in Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.E d.2d 203 (2007). He also argued that the Court did not sufficiently consider the factors listed in 18 U.S.C. § 3553 and 28 U.S.C. § 994(d).

Discussion

1. The Petition Is Not Timely

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a defendant has one year from the date the conviction becomes final to file their petition. See 28 U.S.C. § 2255. The conviction is deemed final when the time for filing a notice of appeal expires. Moshier v. United States, 402 F.3d 116, 118 (2d Cir.2005) ("[F]or purposes of § 2255 motions, an unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires.") Here, Mendivelso was sentenced on April 7, 2004. His conviction thus became final on April 22, 2004, one day after his time to appeal expired. Fed.R.Crim.P. 45(a)(2); Fed. R.App. P. 4(b), 26. Having failed to file a notice of appeal by April 22, 2004,¹ Mendivelso thus had one year to file his habeas...