Warren v. United States
| Decision Date | 30 August 2012 |
| Docket Number | 10-CV-4114(SJF) |
| Parties | LORENZO WARREN, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
On September 2, 2010, incarcerated petitioner Lorenzo Warren ("petitioner") filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. [Docket Entry No. 1], The government opposes the motion.
On September 12, 2011, petitioner also filed a motion under this docket number for modification of his sentence pursuant to 18 U.S.C. §3582(c) in light of amendments to the United States Sentencing Guidelines (the "Guidelines"). [Docket Entry No. 13]. For the reasons discussed below, petitioner's motions are denied in their entirety.
On May 22, 2007, petitioner was arrested in connection with a Drug Enforcement Administration and Suffolk County Police Department investigation into the distribution of cocaine base and cocaine in the Wyandanch, New York area. Government's Response in Opposition ("Govt. Opp.") [Docket Entry No. 7] at 4. On June 21, 2007, petitioner and a numberof alleged co-conspirators were indicted by a federal grand jury. Id. The indictment charged petitioner with conspiracy to distribute and possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846, 841(a), (b)(1)(A)(ii)(II) and 841(b)(l)(A)(iii), and being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Id; Superseding Indictment, Case No. 07-cr-516.
On May 19, 2008, petitioner executed a plea agreement with the government. Govt. Ex. 1 at 1-6. The plea agreement estimated petitioner's base offense level under the Guidelines to be thirty-two (32). Id. at 2. With a two (2)-level reduction for acceptance of responsibility and a one (1)-level reduction for pleading guilty on or before May 19, 2008, petitioner's total adjusted offense level was estimated to be twenty-nine (29). Id. at 2-3. Under that calculation, assuming petitioner's Criminal History Category to be III, the recommended Guidelines range was one hundred eight (108) to one hundred thirty-five (135) months' imprisonment. Id. at 3.
As part of the plea agreement, petitioner agreed that he would "not [] file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, the conviction of sentence in the event that the Court imposes a term of imprisonment of 135 months or below." Id. at 3. The plea agreement further stated that "[a]part from the written proffer agreements ... no promises, agreements or conditions have been entered into by the parties other than those set forth in this agreement and none will be entered into unless memorialized in writing and signed by all parties." Id. at 5.
That same day, petitioner entered a plea of guilty to the charge of conspiracy to distribute and possess with intent to distribute cocaine base. Govt. Opp. at 1; Govt. Ex. 2. At the plea hearing, Magistrate Judge Michael Orenstein confirmed, inter alia, that petitioner had received acopy of the superseding indictment, Govt. Ex. 2 at 7:11-16; that petitioner did not have questions about the charges against him, id. at 7:17-19; and that petitioner had discussed the case with defense counsel, id. at 7:6-8. Petitioner represented to the court that he had signed the plea agreement after reviewing it "page by page and paragraph by paragraph" with defense counsel, id. at 10:3-14, and that he had an opportunity to ask his attorney questions about the agreement, id. at 10:15-20. Furthermore, petitioner acknowledged that he was waiving his right to appeal if he was "sentenced to 135 months or less . .. ." Id. at 15:14-16. Based upon petitioner's testimony, Magistrate Judge Orenstein recommended that this Court accept the plea of guilty. Id. at 21:20-22:6.
On November 20, 2008, this Court sentenced petitioner principally to a term of one hundred eight (108) months' imprisonment and four (4) years' supervised release. Govt. Ex. 3 at 10:16-19. Notwithstanding the waiver of his right to appeal or otherwise challenge his conviction or sentence, petitioner appealed to the U.S. Court of Appeals for the Second Circuit. By order dated September 9, 2009, the Second Circuit granted the government's motion to dismiss the appeal, finding that petitioner had failed to demonstrate that the waiver of his appellate rights was unenforceable. Case No. 07-cr-516, Docket Entry No. 366.
On September 2, 2010, he filed the instant petition.
Petitioner's arguments are twofold. First, he argues that he did not "enter a voluntary, knowing and intelligent guilty plea" because "both [the] court and counsel failed to adequatelyinform him of the nature [of] the charges [against him and] the consequences of his plea." [Docket Entry No. 1] at 5. Second, he argues that the attorneys who represented him in the trial court and on appeal provided constitutionally ineffective assistance of counsel. Id. at 6.1
A "collateral attack on a final judgment in a criminal case is generally available under [28 U.S.C] § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in complete miscarriage of justice." Graziano v. United States. 83 F.3d 587, 590 (2d Cir. 1996) (quoting United States v. Bokun. 73 F.3d 8, 12 (2d Cir. 1995)). In order to preserve the finality of criminal sentences and to effect the efficient allocation of judicial resources, the scope of review on a 28 U.S.C. §2255 motion should be narrowly limited. Graziano, 83 F.3d at 590 (citing cases). If "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the court may dismiss the petition without holding an evidentiary hearing. See 28 U.S.C. §2255(b).
As part of the plea agreement, petitioner agreed that he would "not [] file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, theconviction of sentence in the event that the Court imposes a term of imprisonment of 135 months or below." Govt. Ex. 1 at 3.
"There is no general bar to a waiver of collateral attack rights in a plea agreement," Frederick v. Warden. Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002) (citing Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001)), and a knowing and voluntary waiver of the right to challenge a conviction or sentence is valid and enforceable. See Garcia-Santos, 273 F.3d at 508-509; Rubinstein v. United States. Nos. 10 Cv 8106, 06 Cr. 316, 2011 WL 1362185, at *3 (S.D.N. Y. Apr. 8, 2011) (). Ordinarily, this waiver would bar the claims in a Section 2255 petition.
"However, a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured . ..." Frederick. 308 F.3d at 195-96 (citing United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001)). Therefore, petitioner's claims may survive the appellate waiver insofar as they relate to the voluntariness of his guilty plea and appellate waiver. See, e.g., Parisi v. United States, 529 F.3d 134, 138-39 (2d Cir. 2008) (); Frederick, 308 F.3d at 196 (). To the extent they do survive the waiver, petitioner's claims fail on their merits.
Petitioner contends his guilty plea was not voluntary, knowing, and intelligent because he was not adequately informed of the nature of the charges against him or the consequences of his guilty plea. Petitioner argues, inter alia, that Magistrate Judge Orenstein failed to ensure that he understood the elements of the crime for which he was charged; that he was "assured by the court and by his counsel that his actual sentence exposure was limited to five years or under"; that the court "failed to explain the supervised release"; and the court failed to inform him that the sentencing judge must consider the factors set forth in 18 U.S.C. § 3553(a) in determining the ultimate sentence. Petitioner's Brief ("Pet. Br.") [Docket Entry No. 10] at 20. These claims are entirely without merit.
A plea is not considered voluntary if the defendant does not receive "real notice of the true nature of the charge against him." Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) (quotations and citation omitted). However, "sufficient notice can be provided in various ways." Frederick, 308 F.3d at 197. Under Federal Rule of Criminal Procedure 11, a district court must, inter alia, "determine that the defendant understands ... the nature of each charge to which [he] is pleading." Fed. R. Crim. P. 11(b)(1)(G). However, "[a] district court is not required to follow any particular formula in determining that defendant understands the nature of the charge to which he is pleading guilty." United States v. Andrades, 169 F.3d 131, 135 (2d Cir. 1999). Petitioner received adequate notice of the charges against him at every step: in the superseding indictment, in the plea agreement, and during the plea hearing.
First, the plea agreement referred to the superseding indictment and stated the charges to which petitioner was pleading guilty. Govt....
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