Baer v. United States, 11- CR-104S

BEVERLY BAER, Petitioner,

v.UNITED STATES OF AMERICA, Respondent.

11- CR-104S

12- CV-490S

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Dated: May 21, 2013

DECISION AND ORDER

I. INTRODUCTION

Presently before this Court is the Motion of pro se Petitioner Beverly Baer to Vacate, Set Aside, or Correct her Sentence pursuant to 28 U.S.C. § 2255. For the reasons discussed below, Petitioner's § 2255 motion is denied.

II. BACKGROUND

On April 11, 2011, Petitioner appeared before this Court, waived indictment, and pled guilty to a two-count Information charging her with conspiracy to possess with intent to distribute, and to distribute, 500 grams or more of cocaine in violation of 18 U.S.C. § 846, as well as possession of firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). (See Docket Nos. 11-13.) The plea agreement signed by Petitioner reflects her understanding that the maximum penalty that could be imposed at sentencing included a forty-year term of imprisonment for the conspiracy charge and a consecutively-imposed lifetime term of imprisonment for the firearms charge. (Plea Agreement ¶ 1, Docket No. 12.) Further, as relevant, by entering into the plea agreementPetitioner "knowingly waive[d] the right to appeal and collaterally attack any component of a sentence imposed by the Court which falls within or is less than the sentencing range for imprisonment, a fine and supervised release set forth in Section III, ¶11, . . . notwithstanding the manner in which the Court determines the sentence." (Id. ¶ 19.) Petitioner further understood "that by agreeing to not collaterally attack the sentence, she is waiving the right to challenge the sentence in the event that in the future [Petitioner] becomes aware of previously unknown facts or a change in the law which the [Petitioner] believes would justify a decrease in [her] sentence." (Id. ¶ 20.)

Petitioner was sentenced on July 27, 2011 to a term of incarceration of 54 months on the first charge and 60 months on the second charge with those sentences to run consecutively. (Docket Nos. 21, 29.) The sentence, including fines and terms of supervised release, were within the parameters set forth in the plea agreement. No appeal was filed. (Petition ¶ 8, Docket No. 25.) The instant § 2255 motion was filed by Petitioner on May 22, 2012 (Docket No. 25.) Respondent filed an opposing Memorandum of Law with Exhibits A-F. (Docket No. 32.) A reply was submitted by Petitioner on September 25, 2012.¹ (Docket No. 35.)

III. DISCUSSION

A. Petitioner's § 2255 Motion

28 U.S.C. § 2255 allows federal prisoners to challenge the constitutionality of their sentences. That section provides, in pertinent part, that:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon theground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255 (a). The Second Circuit has held that a "collateral attack on a final judgment in a criminal case is generally available under § 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 a complete miscarriage of justice." Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996) (per curiam) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (internal quotation marks omitted)).

The Government argues that Petitioner's § 2255 motion should be dismissed as procedurally barred because Petitioner failed to file a direct appeal raising the issues now asserted, and because she knowingly and voluntarily waived the right to collaterally attack any part of her sentence. (Gov't Mem of Law at 7-15.) As a general rule, a petitioner is precluded from raising claims in a § 2255 motion that could have been, but were not, raised on direct appeal. Yick Man Mui v. United States, 614 F.3d 50, 54 (2d Cir. 2010). An ineffective assistance of counsel claim, however, is "an important exception to the procedural default rule," and may be raised in a § 2255 motion despite the failure to raise such a claim on direct appeal. Yick Man Mui, 614 F.3d at 53-55; see Massaro v. United States, 538 U.S. 500, 509, 123 S. Ct. 1690, 1696, 155 L. Ed. 2d 714 (2003). Here, Petitioner's arguments are almost entirely framed as ineffective assistance of counsel claims and, as such, are appropriately raised in the present motion.

The Government correctly notes that, as part of her plea agreement, Petitioner"knowingly waive[d] the right to appeal and collaterally attack any component of a sentenced imposed by the Court which falls within or is less than the [agreed] sentencing range." (Plea Agreement ¶ 19.) It is by now well established that a knowing and voluntary waiver made as part of a plea agreement is generally enforceable. United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011); United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001). "An enforceable waiver bars claims based on grounds that arose after, as well as before the [plea] agreement was signed." Muniz v. United States, 360 F. Supp. 2d 574, 577 (S.D.N.Y. 2005). Here, Petitioner's sentence, including the consecutively imposed terms of imprisonment, fell below the possible maximum sentence of lifetime imprisonment, rendering the waiver enforceable. Her request for a downward modification of her sentence is therefore precluded. (Petition at 17.)

"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, here, the plea agreement." Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002), cert denied, 537 U.S. 1146 (2003). In challenging counsel's effectiveness in connection with the plea agreement itself, a petitioner is challenging the constitutionality of the process by which she waived her right to collaterally attack the sentence. Parisi v. United States, 529 F.3d 134, 138 (2d Cir. 2008), cert denied, 555 U.S. 1197 (2009). Specifically, "although challenging the attorney's role in shaping the defendant's bargaining position cannot avoid the waiver, challenging the attorney's advice about that bargaining position, by connecting the knowing and voluntary nature of the defendant's plea decision with the attorney's conduct, does." Parisi, 529 F.3d at 138-39.

Accordingly, this Court must consider whether Petitioner states "a 'meritorious' claimthat 'the waiver was the result of ineffective assistance of counsel.' " Brown v. United States, 637 F. Supp. 2d 212, 217 (S.D.N.Y. 2009) (quoting United States v. Monzon, 359 F.3d 110, 118-19 (2d Cir. 2004)). Where, as here, a defendant's conviction has been secured by way of a plea agreement, a defendant asserting an ineffective assistance of counsel claim must demonstrate that counsel's performance fell below an objective standard of reasonableness, and that this deficiency in performance affected the outcome of the plea process. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); see Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a strong presumption that a trial counsel's conduct falls within the range of reasonable professional assistance and, absent the complete lack of tactical justification, courts will generally not second-guess strategic decisions. United States v. Cohen, 427 F.3d 164, 170-71 (2d Cir. 2005).

Here, Petitioner alleges that counsel: (1) rushed her into a decision without explaining the risks and benefits of the plea agreement; (2) failed to obtain for her a more favorable agreement by, among other things, negotiating for a lower sentence in exchange for her substantial assistance; (3) held her "mental hostage due to [her] lack of understanding of the plea agreement and lack of comprehension due to her neurological mental issues," (4) had a conflict of interest arising out of his representation of Petitioner's associates in the Chosen Few Motorcycle Club; (5) failed to effectively advocate on her behalf at sentencing by arguing, among other things, that she was entitled to a 'safety valve' reduction; (6) failed to move to suppress evidence obtained during the search of her home; (7) failed to argue that the guns in the home were for protection and were a sentimental gift for her son; and (8) failed to object on the ground that a mandatoryminimum sentence was unconstitutional. (Petition at 5-10, 14-17.)

Construing her pro se arguments liberally, as this Court must, Marmolejo v. United States, 196 F.3d 377, 378 (2d Cir. Jan. 26, 1999) (per curiam), only a few of those claims are directed at the plea agreement process itself, as opposed to counsel's conduct in shaping the bargaining process. Parisi, 529 F.3d at 138-39. Initially, her arguments that counsel did not explain the plea agreement or that he failed to account for her mental capacity are belied by the record. During the plea colloquy, Petitioner answered that she had discussed the plea agreement with her attorney, listened to counsel's advice and considered it in reaching a decision on the plea agreement, and that she was comfortable with her understanding of the documents associated with the plea agreement. (Plea Hrg. Tr. at 7-8, Docket No. 28.) Petitioner answered, "Yes, I am," when asked if she was satisfied with her attorney. (Id. at 7.) In the absence of any indication in her petition as to what aspect of the plea agreement she now asserts was unclear or how, if explained differently, Petitioner's decision to plead guilty would have been affected, the record fails...