Muniz v. U.S.

• Decision Date: 14 March 2005
• Docket Number: No. 04 Civ. 10209(SHS).,04 Civ. 10209(SHS).
• Citation: 360 F.Supp.2d 574
• Parties: Edwin MUNIZ, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

360 F.Supp.2d 574

Edwin MUNIZ, Petitioner, v. UNITED STATES of America, Respondent.

No. 04 Civ. 10209(SHS).

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

March 14, 2005.

Edwin Muniz, Otisville, NY, Pro se.

OPINION & ORDER

STEIN, District Judge.

Edwin Muniz brings this petition, pro se, pursuant to 28 USC § 2255 to vacate, set aside or correct his sentence. Muniz was sentenced by this Court on November 21, 2003 following his August 19, 2003 plea of guilty to the crime of conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. § 846. Petitioner's principal claims allege that: (1) his counsel was ineffective in failing to advise him adequately prior to entering his plea, and by failing to object to the imposition of sentencing enhancements; and (2) his sentence was unconstitutionally imposed pursuant to the now governing decision of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The petition is denied on the grounds that Muniz's counsel was not ineffective, and that petitioner is not entitled to relief pursuant to Booker.

Petitioner pled guilty pursuant to a written plea agreement. See Plea Allocution Transcript ("Plea Tr."), Exhibit C to the February 4, 2005 letter from AUSA David M. Rody ("Rody Ltr."). In the plea agreement, Muniz stipulated that the weight of drugs that he distributed, and possessed and conspired with intent to distribute, was more than one kilogram and less than three kilograms of heroin, and therefore, that his base offense level pursuant to the U.S. Sentencing Guidelines ("U.S.S.G.") was 32. See Plea Agreement ("Plea Agmt."), at 2, Exhibit B to the Rody Ltr. Muniz further stipulated that the Sentencing Guidelines range was increased by two points based on possession of a firearm in connection with the offense, pursuant to U.S.S.G. § 2D1.1(b)(1), and by another two points based on Muniz's role as a manager pursuant to U.S.S.G. § 3B1.1(c). Id. Providing for a three-level decrease for acceptance of responsibility, and Muniz's Criminal History category of III, Muniz stipulated to a Sentencing Guidelines range of 168 to 210 months. Id. at 2-4. Muniz was sentenced to the bottom of that range. See Sentencing Transcript ("Sent.Tr."), at 9, Exhibit D to the Rody Ltr. Finally, in the signed plea agreement, Muniz agreed that 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 Guidelines Range set forth above (168 to 210 months)." See Plea Agmt., at 5, 7. Muniz did not appeal from his conviction or sentence, but has instead brought this petition, alleging, as noted above, that his counsel was ineffective and that the Booker decision rendered his sentence improper. The Court now turns to each of those contentions.

I. Muniz's Counsel Was Not Ineffective

Petitioner asserts that his counsel provided ineffective assistance in connection with his sentencing and his plea on several grounds. Muniz alleges that his former attorney was ineffective at plea in (1) failing to adequately advise him of the rights to which he was entitled prior to entering his plea; (2) failing to advise him of a challenge to the firearm enhancement based on the Application Note to U.S.S.G § 2D1.1(b)(1); (3) failing to advise him of his rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (4) failing to advise him that the facts supporting the sentencing enhancements had to be proven to a jury beyond a reasonable doubt. Muniz claims that his counsel was ineffective at sentencing for failing to object to the stipulated enhancements. Finally, Muniz claims that his counsel was ineffective in failing to file an appeal.

A. Muniz Waived his Right to Appeal or Collaterally Attack his Sentence

A defendant's knowing and voluntary waiver of his right to bring a petition pursuant to section 2255 is generally enforceable. See e.g., Frederick v. Warden Lewisburg Corr. Facility, 308 F.3d 192, 195-96 (2d Cir.2002), cert. denied, 537 U.S. 1146, 123 S.Ct. 946, 154 L.Ed.2d 847 (2003); Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir.2001) (per curiam); see also United States v. Monzon, 359 F.3d 110, 116 (2d Cir.2004) (holding same with respect to waiver of direct appeal rights). An enforceable waiver bars claims based on grounds that arose after, as well as before, the agreement was signed. See Garcia-Santos, 273 F.3d at 509. However, a waiver of collateral attack rights in a plea agreement is unenforceable where the petitioner claims ineffective assistance of counsel in connection with the plea agreement itself. See Frederick, 308 F.3d at 195; see also United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir.2001) ("[A] plea agreement containing a waiver of the right to appeal is not enforceable where the defendant claims that the plea agreement was entered into without effective assistance of counsel"). Nonetheless, the United States Court of Appeals for the Second Circuit has clarified that a waiver of appeal rights does not become unenforceable automatically when a claim of ineffective assistance of counsel at plea is asserted. See Monzon, 359 F.3d at 118. Where the record reveals that the waiver was knowing and voluntary, and that there is no merit to the ineffective assistance claim, the waiver should be enforced. Id. at 119.

1. Muniz's Waiver Was Knowing and Voluntary

Muniz was questioned specifically about the waiver of his appeal rights at both the plea allocution and at sentencing, and he affirmed his understanding of that waiver during the plea allocution and also during sentencing. See Plea Tr., at 8; Sent. Tr., at 11. Petitioner was in fact sentenced within the agreed range, to 168 months of imprisonment, Sent. Tr., at 9, and he did not appeal the sentence. In Garcia-Santos, the Second Circuit affirmed the finding that a waiver was knowing and voluntary where, as here, the petitioner had signed a written plea agreement, and had stated during the plea allocution that he had read and understood the plea agreement. See Garcia-Santos, 273 F.3d at 508. Further, as in the instant case, the defendant in Garcia-Santos had not attempted to appeal the sentence in spite of being told by the sentencing judge that he had a right to appeal. Id.; Sent. Tr., at 11. Finally, as in Garcia-Santos, the petitioner here has not claimed that he did not understand the waiver contained in the plea agreement. See Garcia-Santos, 273 F.3d at 508.

Petitioner's claim that his plea was not knowing and voluntary because he had not been advised that the Sixth Amendment required that the stipulated enhancements had to be proven beyond a reasonable doubt is unavailing. A guilty plea is valid and enforceable when it was a knowing and voluntary plea under the law applicable at that time. See Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); United States v. Parsons, 396 F.3d 1015, 1017 (8th Cir.2005). In Parsons, the defendant had stipulated to facts that enhanced his sentence prior to the Supreme Court's decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and Booker, but later attacked his plea claiming that if he had known that certain facts had to be proven beyond a reasonable doubt, he would not have admitted them. Id. at 1017. The court rejected the claim, concluding that because the defendant had admitted the challenged facts as part of his plea agreement, there was no violation of the rule in Booker, and that "the developments in the law announced by Blakely and Booker subsequent to [defendant's] guilty plea," did not invalidate the plea. Id. (citing Brady, 397 U.S. at 757, 90 S.Ct. 1463); see also, United States v. Monsalve, 388 F.3d 71, 73 (2d Cir.2004) (no Blakely violation where a defendant had stipulated to drug quantity and type in a pre-Blakely plea agreement). Compare Bousley v. United States, 523 U.S. 614, 618-19, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). That is equally true here.

2. Muniz Cannot Show that his Plea Agreement Was Predicated on Ineffective Assistance of Counsel

Petitioner claims that his counsel's representation at the time of the plea agreement was ineffective in several respects. First, he alleges that his counsel did not discuss the particular stipulations of the plea agreement in any detail, did not advise him of the increased sentencing exposure attributable to the enhancements, and did not advise him of the rights to which he was entitled prior to entering the plea. Second, Muniz alleges that his counsel failed to advise him that the enhancement for possession of a firearm could be challenged based on the Sentencing Guidelines application notes. Third, Muniz claims that counsel was ineffective in failing to advise him that the enhancements had to be proven beyond a reasonable doubt and in failing to advise him of his rights under Apprendi.

To prevail on a claim of ineffective assistance of counsel, Muniz must show that his attorney's representation fell below an objective standard of reasonableness, Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that there is a "reasonable probability" that the outcome of the proceeding would have been different but for the counsel's error. Id. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. When assessing counsel's performance, a court "must judge his conduct on the basis of the facts of the particular case, `viewed as of the time of counsel's conduct,' and may not use hindsight to second-guess his strategy choices." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). The reviewing court must afford a" `strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" United...