OPINION AND ORDER
ANDREW J. PECK, United States Magistrate Judge:
Pro se petitioner Willie Brown has petitioned under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence of 260 months imprisonment. (See 08 Civ. 8804, Dkt. No. 1: Pet.) Brown asserts that: (1) "Ineffective Counsels' fundamental, prejudicial, gross negligence & Conflictive Cumulative Errors violated [his] rights" (Pet. ¶¶ 12(A)); (2) "Vindictive Prosecut[orial]
The parties have consented to decision of this petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (08 Civ. 8804, Dkt. No. 8.)
For the reasons set for below, Brown's petition is DENIED.
On February 5, 2004, Willie Brown was indicted along with two co-defendants. (04 Cr. 113, Dkt. No. 106: Gov't Ltr. Br. at 1.) On February 14, 2006, Brown waived indictment and was charged in a two-count superseding information. (Gov't. Br. at 1; 04 Cr. 113, Dkt. No. 71: 2/14/06 Waiver of Indictment; 04 Cr. 113, Dkt. No. 72:2/14/06 S5 Superseding Information.) Count One charged Brown with distributing and possessing with intent to distribute five kilograms and more of cocaine from 1999 through February 2004; Count Two charged Brown with possessing a firearm in connection with a drug trafficking crime. (S5 Superseding Information.)
Guilty Plea and Sentencing
On February 16, 2006, represented by Donald Yanella, Brown pled guilty before Judge Cote. (04 Cr. 113, Dkt. No. 75:2/16/06 Plea Transcript ["P."].) Brown acknowledged that he understood that he was waiving his rights to a jury trial and related rights. (P. 4-7.) Judge Cote described the specific crimes charged in the indictment, and Brown acknowledged that he understood both charges and the penalties for those charges, including that the five year mandatory minimum for Count Two must follow any sentence for Count One. (P. 8-10.) Brown affirmed that he had discussed the Sentencing Guidelines with his attorney and understood them (P. 10-11), after which the following colloquy occurred:
(P. 11-12.) Brown stated that he had read the plea agreement, that his "lawyer went over it with" him, and that he understood it. (P. 12-13.) Brown acknowledged that in signing the plea agreement he agreed not to "appeal or litigate or challenge [his]
(P. 13-14.) Defense counsel noted that the quantity of narcotics in the S.D.N.Y. case "overlap[ped]" with the quantity to which Brown already had pled guilty to distributing in a case in federal court in Georgia (P. 14), and Judge Cote noted that Brown's right to argue that at sentencing was preserved (P. 14).
Brown admitted that he sold five kilograms and more of cocaine in the Bronx from 1999 to 2004 and that he possessed a firearm to assist in his drug distribution activity. (P. 15.) Brown stated that he knew at the time he committed them that his actions were illegal and wrong. (P. 15-16.) Judge Cote entered a judgment of guilty on both counts, and set a date for sentencing. (P. 16-17.)
Brown's case was reassigned to Judge Owen on January 30, 2007. (04 Cr. 113, Dkt. No. 86:1/30/07 Notice of Case Reassignment.) Sentencing occurred before Judge Owen on October 24, 2007. (04 Cr. 113, Dkt. No. 104: 10/24/07 Sentencing Transcript ["S."]) B. Alan Seidler, Brown's counsel, noted that Brown's sentence in Georgia was reduced because of his cooperation, but not as much as the defense would have liked, and that his overall sentence would have been much lower if the same drugs did not lead to prosecutions in two different districts. (S. 2-4.) Brown's counsel also argued that Brown was 62 years old and in poor health, and still had approximately eight years remaining on his Georgia sentence. (S. 6-7.) Assistant United States Attorney David M. Rody responded that Brown had trafficked "a whole lot of drugs for a lot of years." (S. 7.) A.U.S.A. Rody noted that a woman had been "absolutely brutally butchered" in Brown's "stash" apartment, although Brown had nothing to do with that murder. (S. 8-9.) Brown addressed Judge Owen, stating that he "made a mistake, a big mistake, and [he] realize[d][he] made a mistake." (S. 4.)
Because of Brown's age and poor health, Judge Owen departed below the sentencing guidelines range and the pre-sentence report recommendations, sentencing Brown to two hundred months for Count One (concurrent with the Georgia sentence) and the mandatory consecutive sixty months for the weapon charged in Count
Brown's Petition for Habeas Corpus
Brown's petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence of 260 months (08 Civ. 8804, Dkt. No. 1: Pet.) asserts that: (1) "Ineffective Counsels' fundamental, prejudicial, gross negligence & Conflictive Cumulative Errors violated [his] rights" at both his plea hearing and at sentencing (Pet. ¶ 12(A)); (2) "Vindictive Prosecut[orial] Misconduct" involving "`spill over'" prejudice rendered "his sentence illegal & unfair" (Pet. ¶ 12(B));
BROWN'S ABILITY TO ASSERT A § 2255 PETITION IS BARRED BY HIS PLEA AGREEMENT, EXCEPT AS TO INEFFECTIVE ASSISTANCE OF COUNSEL AS TO HIS PLEA
Pursuant to his plea agreement, confirmed during his plea allocution, Brown waived his right to appeal or to collaterally or otherwise challenge any sentence which did not exceed the agreed-upon sentencing guidelines range. (See page 214-15 above.) The Second Circuit has held that "[w]here the record clearly demonstrates that the defendant's waiver of [his] right to appeal a sentence within an agreed Guidelines range was knowing and voluntary, that waiver is enforceable." United States v. Monzon, 359 F.3d 110, 116 (2d Cir. 2004).
"[W]ith respect to claims of ineffective assistance of counsel that are limited to post-plea events (e.g., sentencing), however, the waiver remains enforceable." Marulanda v. United States, 2009 WL 1546315 at *2; accord, e.g., Garcia-Santos v. United States, 273 F.3d at 508-09; Concepcion-Baez v. United States, 2009 WL 765045 at *1 ("a valid waiver will be upheld against a challenge to the correctness of a sentence."); Okupe v. United States, 2009 WL 455289 at *2; Castellanos v. United States, 2008 WL 4548916 at *3, 5; Wall v. United States, 2008 WL 3049948 at *1 ("`[C]laims of ineffective representation concerning sentencing generally do not survive the § 2255 waiver because ... [they] relate[ ] only to the performance of defendant's attorney with respect to sentencing and [do] not go to the validity of the plea agreement itself.'") (citation omitted & alterations in original); Chen v. United States, 06 Civ. 7159, 02 Cr. 1039, 2007 WL 4358466 at *4 (S.D.N.Y. Dec. 7, 2007).
Accordingly, Brown's claims of vindictive prosecutorial misconduct, incorrect offense level, and alleged ineffectiveness of his sentencing counsel as to consecutive rather than concurrent sentences (see pages 213-14, 216 above) all are barred by his plea agreement to waive collateral attack of a below guideline sentence. The Court turns to Brown's sole surviving claim, ineffective assistance of counsel pre-plea, to see if it comes within the exception to the waiver.
II. BROWN'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL IN CONNECTION WITH HIS GUILTY PLEA ARE WITHOUT MERIT
Legal Principles Governing Guilty Pleas
Constitutional due process requires that a guilty plea be voluntary, knowing and intelligent. E.g., Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S.Ct. 2398, 2405, 162 L.Ed.2d 143 (2005); United States v. Ruiz, 536 U.S. 622, 629, 122 S.Ct. 2450, 2455, 153 L.Ed.2d 586 (2002); Bousley v. United States, 523 U.S. 614, 618, 118 S.Ct. 1604, 1609, 140 L.Ed.2d 828 (1998); Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 2546-47, 81 L.Ed.2d 437 (1984); Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970); Boykin v. Alabama, 395 U.S. 238, 242-43 & n. 5, 89 S.Ct. 1709, 1711-12 & n. 5, 23 L.Ed.2d 274 (1969).
"The standard for determining the validity of a guilty plea is `whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Urena v. People of the State of New York, 160 F.Supp.2d 606, 610 (S.D.N.Y.2001) (Weinstein, D.J.) (quoting Ventura v. Meachum, 957 F.2d 1048, 1058 (2d Cir.1992)). A plea is involuntary where the defendant did not have "`knowledge of the nature of the constitutional protections he will forgo by entering his plea.'" Marcelin v. Garvin, 97 Civ. 2996, 1999 WL 977221 at *5 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.) (quoting Matusiak v. Kelly, 786 F.2d 536, 543 (2d Cir.), cert. dismissed, 479 U.S. 805, 107 S.Ct. 248, 93 L.Ed.2d 172 (1986)). "A plea is `intelligent' and `voluntary' when a defendant had the advice of counsel, understood the consequences of his plea and the plea was not physically or mentally coerced." Heron v. People, 98 Civ. 7941, 1999 WL 1125059 at *5 (S.D.N.Y. Dec. 8, 1999); see, e.g., United States v. Doe, 537 F.3d 204, 211 (2d Cir.2008) ("[T]he Supreme Court has instructed that, with regard to voluntariness, a guilty plea `must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).'"); Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir.) ("[A] plea is deemed `intelligent' if the accused had the advice of counsel and understood the consequences of his plea, even if only in a fairly rudimentary way; it is deemed Voluntary' if it is not the product of actual or threatened physical harm, mental coercion overbearing the defendant's will, or the defendant's sheer inability to weigh his options rationally."), cert. denied, 488 U.S. 890, 109 S.Ct. 224, 102 L.Ed.2d 214 (1988).
"`It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.'" Bousley v. United States, 523 U.S. at 621, 118 S.Ct. at 1610 (quoting Mabry v. Johnson, 467 U.S. at 508, 104 S.Ct. at 2547-47); accord, e.g., Bradshaw v. Stumpf, 545 U.S. at 186, 125 S.Ct. at 2407.
"As the Supreme Court has noted, statements made at plea allocutions carry a strong presumption of verity and constitute a formidable barrier in any subsequent collateral proceeding." Marcelin v. Garvin, 97 Civ. 2996, 1999 WL 977221 at *7 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.) (internal quotation marks omitted, quoting, inter alia, Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977)); accord, e.g., United States v. Grzybek, 283 Fed.Appx. 843, 845 (2d Cir. 2008) ("It is well established that `[a] criminal defendant's self-inculpatory statements made under oath at this plea allocution carry a strong presumption of verity... and are generally treated as conclusive in the face of the defendant's later attempt to contradict them.'"); United States v. Laano, 58 Fed.Appx. 859, 861 (2d Cir. 2003) ("A defendant who offers a claim of innocence to substantiate altering his plea must overcome `the strong presumption of verity that attaches to his admissions of guilt at his plea allocution.'").
B. The Strickland v. Washington Standard on Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064.
Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted).
Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.
Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the `totality of the evidence before the judge or jury.'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir.2001) (quoting Strickland v. Washington, 466 U.S. at 695-96, 104 S.Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir.1991).
The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697, 104 S.Ct. at 2069.
In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.... In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066.
As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d at 199; accord, e.g., Bell v. Miller, 500 F.3d at 156-57.
The Strickland standard also applies to ineffective assistance claims arising out of a guilty plea. Hill v. Lockhart,
Application of These Standards to Brown's Claims
Brown claims that his guilty plea was "involuntary and unintelligently induced and entered" into because of ineffective assistance of counsel, specifically, that: (1) his attorney Donald Yanella told him that if he did not plead guilty, the prosecutor would contact the Georgia prosecutor to not authorize a downward departure motion already agreed upon there, and (2) Yanella failed to advise Brown that the mandatory consecutive sixty month sentence on Count Two would not begin to run until after Brown completed his sentence in Georgia. (Dkt. No. 1: Brown Br. at 6-7.) Brown also asserts that Yanella was ineffective with respect to the gun charge because "at no time did [Brown] possess[ ] a gun and that at no time did the government confiscate a gun to support the charge." (04 Cr. 113, Dkt. No. 112: Brown Traverse at 1-2.)
These claims are contradicted by Brown's sworn statements at his plea allocution, which, as noted above, "carry a strong presumption of verity and constitute a formidable barrier in any subsequent collateral proceeding." Marcelin v. Garvin, 97 Civ. 2996, 1999 WL 977221 at *7 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J) (internal quotations omitted). At the plea allocution, Brown stated that no one had "threatened [him] or influenced or forced [him] in any way" to plead guilty. (P. 12; see page 214 above.) This statement directly contradicts Brown's claim that he was induced to plead guilty by any alleged threats about what the prosecutor in New York would tell the Georgia prosecutor to do.
Brown's claim that he pled guilty based on his attorney's failure to advise him that his firearm sentence would be consecutive is contradicted by his plea allocution statement that he understood that "if [his] attorney or anyone ha[d] attempted to predict to [him] what [his] sentence will be that their [prediction] could be wrong." (P. 11; see page 214 above.) Judge Cote
Brown's claims of ineffective assistance of counsel in connection with his guilty plea are conclusory, contradicted by the record, unsupported by evidence and therefore are merit less. See, e.g., Okupe v. United States, No. 08 CV 693, 2009 WL 455289 at *2 (E.D.N.Y. Feb. 23, 2009) (§ 2255 waiver upheld where petitioner signed plea agreement, and at plea "he stated that he read, understood and discussed the agreement with his lawyer" and understood the waiver); Isaza v. United States, 04 Civ. 6096, 00 Cr. 979, 2008 WL 1849170 at *4 (S.D.N.Y. Apr. 24, 2008) (Petitioner "does not allege, however, that she received ineffective assistance of counsel in connection with the negotiation of, or her decision to enter into, the plea agreement. Nor does [petitioner] generally allege that, but for counsel's ineffective assistance, she would not have pled guilty or signed her plea agreement. For that reason, [petitioner's] waiver of her right to appeal or collaterally attack her sentence applies to her ineffective assistance of counsel claims ....") (citation omitted); Chen v. United States, 06 Civ. 7159, 02 Cr. 1039, 2007 WL 4358466 at *3 (S.D.N.Y. Dec. 7, 2007) (§ 2255 waiver upheld where the "record clearly establishes that [petitioner] entered into the plea agreement knowingly and voluntarily.... Because [petitioner's] sworn statements [at plea and sentencing] directly contradict[ed] his more recent self-serving allegations, his ineffective assistance claim is dismissed."); Cusano v. United States, 05 Civ. 7177, 2007 WL 4142771 at *2 (S.D.N.Y. Nov. 16, 2007) (§ 2255 waiver upheld and ineffective counsel claims found to be merit less when contradicted by petitioner's statements at plea allocution that he understood plea agreement, was satisfied with counsel's representation and admitted to the elements of the crime.); Villar v. United States, 05 Civ. 3230, 03 Cr. 1136, 2006 WL 44015 at *6 (S.D.N.Y. Jan. 6, 2006) (§ 2255 waiver upheld and ineffective counsel claim found merit less when directly contradicted by petitioner's statements at plea allocution.); Rosario v. United States, 348 F.Supp.2d 288, 293 (S.D.N.Y. 2004) (§ 2255 waiver upheld and claims of ineffective assistance of counsel found merit less when contradicted by statements at plea allocution.). Brown's waiver
For the reasons set forth above, Brown's petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence of 260 months imprisonment is DENIED.
"[A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; accord, e.g., Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542. The phrase "reasonable probability," despite its language, should not be confused with "probable" or "more likely than not." Strickler v. Greene, 527 U.S. 263, 289-91, 119 S.Ct. 1936, 1952-53, 144 L.Ed.2d 286 (1999); Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1565-66, 131 L.Ed.2d 490 (1995); Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998, 89 L.Ed.2d 123 (1986) ("a defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland"); Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068 ("The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome."). Rather, the phrase "reasonable probability" seems to describe a fairly low standard of probability, albeit somewhat more likely than a "reasonable possibility." Strickler v. Greene, 527 U.S. at 291, 119 S.Ct. at 1953; cf. id. at 297-301, 119 S.Ct. at 1955-58 (Souter, J., concurring & dissenting) (arguing that any difference between "reasonable probability" and "reasonable possibility" is "slight").