United States District Court, D. New Jersey
November 2, 2005.
JOSE LOPEZ, Petitioner,
UNITED STATES of AMERICA, Respondent.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Petitioner, Jose Lopez, was sentenced by the undersigned to a
term of imprisonment of 114 months following the execution of a
written plea agreement, under which Petitioner pled guilty to one
count of conspiracy to distribute and possession with intent to
distribute more than 5 kilograms of cocaine and 50 grams of
cocaine base in violation of 21 U.S.C. § 846. Petitioner now
brings this pro se habeas corpus petition pursuant to
28 U.S.C. § 2255, arguing that (1) his trial counsel was constitutionally ineffective; and (2) he is entitled to resentencing in light of
the recent Supreme Court decision in United States v. Booker.
125 S. Ct. 738 (2005). The petition will be denied in its
entirety because the claims are procedurally barred, and because
Petitioner knowingly and voluntarily waived his right to file a
habeas petition. In any event, for the reasons expressed below,
both of Petitioner's claims fail on the merits.
On June 5, 2001, a federal grand jury sitting in Camden
returned a one-count Indictment against Petitioner and his
coconspirators, charging Petitioner with conspiracy to distribute
and possession with intent to distribute more than 50 grams of
cocaine base and more than 5 kilograms of powder cocaine, in
violation of 21 U.S.C. § 846. Petitioner pled guilty to the
one-count Indictment before the undersigned on July 24, 2001,
pursuant to a written plea agreement. The plea agreement provided
that Petitioner was accountable for more than 1.5 kilograms of
crack cocaine and for at least 15 kilograms, but less than 50
kilograms, of powder cocaine, resulting in a Base Offense Level
of 38 pursuant to U.S.S.G. § 2D1.1(c)(1). The parties stipulated
that Petitioner would receive a 3 level reduction for acceptance
of responsibility pursuant to U.S.S.G. §§ 3E1.1(a) and
3E1.1(b)(2), resulting in a total offense level of 35.
Additionally, under the plea agreement Petitioner voluntarily waived the right to collaterally attack the
sentencing court's determination under 28 U.S.C. § 2255, provided
that the total offense level determined by the Court was equal to
or less than an offense level of 35.*fn1
Thereafter, a Presentence Investigation Report was prepared by
a United States Probation Officer, which corresponded with the
parties' stipulation of a Base Offense Level of 38, with a 3
level reduction for acceptance of responsibility. Additionally, the Presentence Report found that Petitioner met the criteria of
a career offender with a criminal history category of VI. These
calculations resulted in a guideline range of imprisonment of 292
to 365 months.
On May 30, 2002, a sentencing hearing was conducted by the
undersigned. Petitioner did not object to any of the findings
contained in the Presentence Investigation Report. The Court
adopted those findings, thereby establishing a guideline range of
292 to 365 months imprisonment. The government filed a motion for
a downward departure pursuant to U.S.S.G. § 5K1.1 due to
Petitioner's substantial assistance in the investigation. The
Court granted the motion and sentenced Petitioner to 144 months
imprisonment. The Judgment and Conviction Order was entered on
May 31, 2002.
Petitioner never filed a direct appeal of his conviction or
sentence. On August 4, 2004, Petitioner filed the instant
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255.
For the reasons now explained, the petition will be denied in its
A. Procedural Bar
Petitioner is procedurally barred from filing the current
habeas petition. A one-year period of limitation applies to motions made under 28 U.S.C. § 2255. The limitation period runs
from the latest of:
(1) the date on which the judgment of conviction
(2) the date on which the impediment to making a
motion created by governmental action in violation of
the Constitution or laws of the United States is
removed, if the movant was prevented from making a
motion by such governmental action;
(3) the date on which the right asserted was
initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the claim
or claims presented could have been discovered
through the exercise of due diligence.
28 U.S.C. § 2255. In this case, there was no unconstitutional
governmental action preventing Petitioner from bringing an
appeal, and no new facts have arisen to support Petitioner's
claim. Additionally, although Petitioner argues that his sentence
should be vacated in light of United States v. Booker,
125 S. Ct. 738
(2005), the rule of law announced by the Supreme Court in
Booker does not apply retroactively. Lloyd v. United States,
407 F.3d 608
(3d Cir. 2005). Therefore, the Court may consider
the current petition only if it was made within one year of the
date on which Petitioner's conviction became final. As the
following discussion explains, it was not.
A conviction becomes final within the meaning of § 2255 on the
later of (1) the date on which the Supreme Court affirms the conviction and sentence, or denies the defendant's petition for
certiorari; or (2) the date on which the defendant's time for
filing a timely petition for certiorari review expires. Kapral
v. United States, 166 F.3d 565, 577 (3d Cir. 1999). Under
Supreme Court Rule 13, a defendant has 90 days from the entry of
judgment or denial of a rehearing petition in which to file a
petition for writ of certiorari. Sup. Ct. R. 13.
In this case, Petitioner never filed a direct appeal of his
conviction or sentence and, thus, his conviction became final on
August 31, 2002, 90 days after the entry of judgment on May 31,
2002. Therefore, Petitioner had until August 31, 2003 to file a
petition under § 2255. However, Petitioner filed the current
petition on August 4, 2004, nearly one year after the statute of
limitations expired. Therefore, Petitioner is time-barred under §
2255 from filing the current petition and the petition will be
B. Waiver of The Right to File a § 2255 Petition
Additionally, Petitioner knowingly and voluntarily waived his
right to file the instant petition. On July 24, 2001, Petitioner
pled guilty pursuant to a written plea agreement under which he
voluntarily waived his right to challenge the sentencing court's
determination or imposition of the offense level under § 2255,
provided that the total offense level determined by the court was
equal to or less than an offense level of 35. A total offense level of 35 was computed in the Presentence Investigation
Report and adopted by the Court at the sentencing hearing.
Therefore, the waiver of collateral attack was triggered, thereby
precluding Petitioner from filing the current petition.
Waivers of appeal are permissible and enforceable. U.S. v.
Khattak, 273 F.3d 557 (3d Cir. 2001). See also United
States v. Teeter, 257 F.3d 14 (1st Cir. 2001); United States v.
Fisher, 232 F.3d 301 (2d Cir. 2000); United States v. Brown,
232 F.3d 399 (4th Cir. 2000); United States v. Branam,
231 F.3d 932 (5th Cir. 2000); United States v. Fleming, 239 F.3d 761
(6th Cir. 2001); United States v. Jemison, 237 F.3d 911 (7th
Cir. 2000); United States v. Estrada-Bahena, 201 F.3d 1070 (8th
Cir. 2000); United States v. Nguyen, 235 F.3d 1179 (9th Cir.
2000); United States v. Rubio, 231 F.3d 709 (10th Cir. 2000);
Unites States v. Howle, 166 F.3d 1166 (11th Cir. 1999). In
Khattak, the Third Circuit examined the legality of
waiver-of-appeals provisions in guilty plea agreements and held
that such waivers are valid if entered into knowingly and
voluntarily, unless enforcing the waiver would work a miscarriage
of justice. Khattak, 273 F.3d at 562-63.
In determining whether the waiver in Khattak was knowing and
voluntary, the court there considered whether the sentencing
judge complied with the requirements of Federal Rule of Criminal
Procedure 11. Id. at 563. Under Rule 11, before accepting a
guilty plea the court must address the defendant and determine that the defendant understands, among other things, the terms of
any provision in a plea agreement waiving the right to appeal or
collaterally attack the sentence. Fed.R.Crim.P. 11.
In this case, the record reflects that the Court took all
reasonable steps to ensure that Petitioner's waiver of his § 2255
rights was knowing and voluntary. First, Petitioner signed a Rule
11 form acknowledging that under his plea agreement he waived his
right to appeal or collaterally attack the sentence imposed.
(Rule 11 Form at p. 5). Second, the Court orally questioned
Petitioner during his Rule 11 hearing about his waiver of rights
of appeal and of collateral attacks under § 2255 as set forth in
his written plea agreement, and the Court found that his waiver
of § 2255 rights was knowingly and voluntarily given as part of
his negotiated plea agreement. Further, at the sentencing hearing
Petitioner failed to object to any of the findings in the
Presentence Report adopted by the Court. In fact, even at the
present time Petitioner has never claimed that his waiver was
unknowing or involuntary, and has made no allegation that he
misunderstood the nature or effect of the waiver provision in the
Additionally, there was no particular sentencing error that
would work a miscarriage of justice. See Khattak,
273 F.3d at 563 (stating that otherwise valid waivers of appeal could be
vacated when sentencing error occurred). Petitioner did not object to the findings contained in the Presentence Investigation
Report adopted by the Court, and the ultimate sentence imposed
was below the guideline sentencing range.
Because Petitioner knowingly and voluntarily waived his right
to appeal the sentencing court's determination under § 2255, and
because enforcing the waiver does not work a miscarriage of
justice, the instant petition will be denied.
C. Ineffective Assistance of Counsel
Although Petitioner waived his right to collaterally attack his
sentence and is otherwise procedurally barred from filing the
current petition, Petitioner's claims also fail on the merits.
Petitioner claims that his counsel was constitutionally
ineffective for (1) advising him to enter a cooperating plea
agreement with a stipulated drug quantity greater than the
threshold quantity under 21 U.S.C. § 846, and (2) failing to seek
a minor role downward adjustment to his sentence. In order to
establish a viable claim of actual ineffective assistance of
counsel, a defendant must show that (1) counsel's performance was
deficient; and (2) counsel's deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
The first prong of Strickland requires a showing that counsel
made errors so serious that the right to counsel guaranteed by
the Sixth Amendment was essentially not provided. Strickland,
466 U.S. at 687. The proper standard for judging attorney performance is that of reasonably effective assistance.
Id. at 687. Judicial scrutiny of counsel's performance must be
highly deferential and the petitioner must overcome a strong
presumption that counsel's actions were sound given the
circumstances. Id. at 689. As explained below, in this case,
Petitioner failed to satisfy the first prong of Strickland by
establishing that counsel's performance was deficient. Therefore,
Petitioner's claim of ineffective assistance of counsel fails.
See United States v. Nino, 878 F.2d 101 (3d Cir. 1989)
(holding habeas petitioner seeking to vacate sentence due to
counsel's post-conviction actions must satisfy both prongs set
forth in Strickland).
1. Drug Quantity Stipulation in Plea Agreement
Petitioner first claims that his counsel was ineffective for
advising him to stipulate in his plea agreement that the amount
of controlled substances attributable to him was more than 1.5
kilograms of cocaine base and at least 15 kilograms, but less
than 50 kilograms, of powder cocaine, resulting in a Base Offense
Level of 38. U.S.S.G. § 2D1.1(c)(1). Petitioner claims counsel
should have stipulated the threshold amount under 21 U.S.C. § 846
of more than 50 grams of cocaine base and more than 5 kilograms
of powder cocaine, resulting in a Base Offense Level of 32.
21 U.S.C. § 841. Petitioner is clearly confusing the quantity of controlled
substances needed to be in violation of § 846, and the quantity
of controlled substances stipulated for sentencing purposes. Had
Petitioner pled guilty or nolo contendere to the charges in the
Indictment, thereby allowing the Court to accept the allegations
contained therein as true, the Court would still have had to
determine the appropriate sentencing guideline range. See
Fed.R.Crim.P. 11. The Presentence Investigation Report states that
the stipulated drug quantities resulted from an investigation
involving a drug distribution scheme that operated for over a
year. (Presentence Report ¶ 39.). Based on that information, the
Court could have found Petitioner accountable for at least 1.5
kilograms of cocaine base and at least 15 kilograms of powder
cocaine. Additionally, had Petitioner not entered into the plea
agreement, he might not have received the point reduction of his
Base Offense Level from 38 to 35. (Resp. Supp. Br. at 8-9.)
Therefore, counsel was objectively reasonable in advising
Petitioner to stipulate to the amount of controlled substances in
the plea agreement. Accordingly, Petitioner fails to show that
his counsel's performance was constitutionally deficient under
Strickland. 2. Minor Role
Petitioner also claims that counsel was ineffective for failing
to seek a minor role downward adjustment pursuant to U.S.S.G. §
3B1.2. Section 3B1.2 allows an adjustment to a defendant's
offense level based on the role he played in committing the
offense. The prerequisites for applying § 3B1.2 are (1) multiple
participants and (2) a differentiation in levels of culpability.
U.S.S.G. § 3B1.2. District courts are allowed broad discretion in
applying this section, and its application is heavily dependent
on the facts of the particular case. See United States v.
Isaza-Zapata, 148 F.3d 236 (3d Cir. 1998).
Here, there were no circumstances barring Petitioner's counsel
from requesting a downward adjustment for a minor role at
Petitioner's sentencing hearing. However, counsel's failure to do
so does not render his assistance constitutionally ineffective.
As noted above, a defendant claiming ineffective assistance of
counsel must overcome the presumption that under the
circumstances, the challenged action might be considered sound
trial strategy. Strickland, 466 U.S. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)).
In this case, counsel's decision could be considered a sound
tactical move. As the government suggests, had Petitioner pursued
a minor role reduction, the government would not likely have made
a motion for a sentence reduction under U.S.S.G. § 5K1.1. (Resp. Supp. Br. at 10.) As stated above, the Court
granted that motion, thereby reducing Petitioner's sentence from
the guideline range of 292 to 365 months, to 144 months.
Additionally, had defense counsel requested a minor role
reduction, more evidence of Petitioner's role in the offense
would have been introduced, which, depending on the facts of the
case, could have resulted in a further role enhancement.
Petitioner fails to overcome the presumption that his counsel's
actions reflected sound trial theory and, therefore, fails to
demonstrate that counsel's performance was deficient.
For the foregoing reasons, Petitioner fails to establish a
claim of ineffective assistance of counsel.
D. Resentencing in Light of United States v. Booker
Petitioner further argues that his sentence should be vacated
because the quantity of drugs attributed to him for sentencing
purposes was never submitted to a jury, as required under the
Supreme Court's holding in United States v. Booker.
125 S. Ct. 738 (2005). In Booker, the Supreme Court held that under the
Sixth Amendment, any fact other than a prior conviction that is
necessary to support a sentence exceeding the maximum authorized
by the facts established by a guilty plea or jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable
doubt. Id. at 756. In this case, Petitioner stipulated in his
plea agreement that the amount of controlled substances attributable to him for sentencing purposes was more
than 1.5 kilograms of cocaine base, and at least 15 kilograms but
less than 50 kilograms of powder cocaine, resulting in a Base
Offense Level of 38. The lowest sentencing range attributable
to a Base Offense Level of 38 is 235 to 293 months. U.S.S.G. §
2D1.1(c)(1). The sentence ultimately imposed on Petitioner was
144 months. Therefore, Petitioner's sentence does not exceed the
maximum authorized by the facts established in his plea agreement
and Petitioner's claim falls outside the scope of Booker.
Furthermore, even if Petitioner's sentence did exceed the
authorized maximum, Petitioner admitted the facts used to support
his sentence in his plea agreement. Therefore, the requirements
established in Booker were satisfied and Petitioner's motion to
vacate his sentence in light of the holding in Booker is
meritless.*fn2 IV. Conclusion
For the foregoing reasons, Mr. Lopez's petition for writ of
habeas corpus will be denied. The accompanying Order is entered.
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