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Nunez v. United States

July 7, 2008

RICHARD NUNEZ, PETITIONER- DEFENDANT,
v.
UNITED STATES OF AMERICA, RESPONDENT- PLAINTIFF.



The opinion of the court was delivered by: Wolfson, District Judge

OPINION

Presently before the Court is Petitioner Richard Nunez's ("Petitioner" or "Nunez") motion to vacate, set aside or correct his 216 month sentence pursuant to 28 U.S.C. § 2255. Petitioner's grounds for his motion include: (1) ineffective assistance of counsel; and (2) unreasonableness of the sentence. Respondent United States of America ("Respondent") moves to dismiss Petitioner's motion. For the foregoing reasons, the Court decides the present motion as follows: the Court dismisses Petitioner's motion to vacate his sentence, pursuant to § 2255, because he has failed to adequately support his claim that defense counsel was ineffective in failing to appeal the Court's admission of cocaine seized from his car; Petitioner is precluded from relitigating the unreasonableness of his sentence according to United States v. Booker, 543 U.S. 220 (2005); and, irrespective of the merits of his claims, Petitioner waived his § 2255 rights and therefore, the Court need not exercise jurisdiction.

I. Background and Procedural History

Petitioner's claims arise out of an initial arrest for driving while intoxicated and a subsequent search of his vehicle, where police found 1.2 pounds of cocaine. The following facts are not in dispute, and were found by the Court in its proceeding on March 17, 2004. On January 12, 2003, in Pleasantville, New Jersey, police pulled over Nunez in a Lincoln Navigator for driving erratically, swerving out of his lane and running a stop sign. When asked about the strong smell of alcohol emanating from the vehicle, Nunez replied that he had consumed a few drinks. The officer then asked Nunez to exit the vehicle, at which point he refused and the officer informed Nunez that he was under arrest for driving under the influence. As a second officer reached into the vehicle to remove Nunez and prevent him from fleeing, Nunez sped off with the officer still partially inside the window. After being pursued for about three quarters of a mile, Nunez jumped out of the car to flee on foot. After a struggle, the officers apprehended him.

Directly afterward, a detective arrived on the scene; he and one of the officers began searching Nunez's vehicle. In the center console, the officers found a plastic cup of what appeared and turned out to be brown liquor. The detective also found a jacket in the compartment behind the rear seat, and as he lifted it, a white plastic bag fell out of the sleeve. Inside the bag was a large Ziplock bag containing a large amount of white rock substance believed to be cocaine, as well as a digital scale. The substance, which later tested positive for cocaine, weighed 1.2 pounds. In addition, the detective found a small green Ziplock bag on the floorboard cargo area, which contained around 1 gram of cocaine.

Following his arrest and indictment, Petitioner made a motion to suppress the cocaine found in his vehicle on the grounds that it was the product of an unlawful search; following an evidentiary hearing, this Court denied the motion and rendered an oral opinion. Subsequently, on March 17, 2006, Nunez agreed to a stipulated bench trial and was found guilty of possessing more than 500 grams of cocaine with the intent to distribute in violation of 12 U.S. §§ 841 (a)(1) and 841 (b) (1) (B). As part of the stipulated trial, Nunez retained his right to appeal the Court's decision on his motion to suppress. After the adjudication, Petitioner engaged in several proffer sessions with the Government, and on May 4, 2004 entered into a sentencing agreement in which he agreed to cooperate with the Government, as well as with the United States Attorney's office for the Southern District of New York. Agreement with Richard Nunez ("Agreement"), Government's Opposition Exhibit B, at 1. As part of the Agreement, Petitioner forfeited his right to appeal the Court's denial of his motion to suppress. In addition, Petitioner stipulated to certain sentencing guideline matters including waiving both his right to appeal his sentence and his 28 U.S.C. § 2255 rights. The Agreement, signed on May 4, 2004, occurred prior to the passage of United States v. Booker, which made the Sentencing Guidelines advisory. Agreement at6.

On February 23, 2005, this Court sentenced Petitioner to 216 months imprisonment. Transcript of Sentence, ("Transcript") at 27. The Court determined that Petitioner fell into the Sentencing Guidelines category of 33, with a level VI criminal history, advising a sentence of 235-293 months. Transcript at 3-4. Additionally, the Court noted that Petitioner had an extensive criminal history and had been convicted of several prior drug offenses. Id. at 19. Furthermore, Nunez was diagnosed with multiple sclerosis in 2000. Id. at 17. At the time of sentencing, Petitioner intermittently suffered symptoms of muscle fatigue, bowel trouble and feet numbness, and the future progression of the disease was impossible to determine. Id. at 9-10.

Petitioner appealed his sentence to the Third Circuit arguing that his sentence was unreasonable. On March 10, 2006, the Third Circuit denied Petitioner's appeal and affirmed this Court's sentence. The Third Circuit held that Petitioner's sentence was reasonable and that this Court correctly followed post-Booker sentencing procedures. United States v. Nunez, 173 Fed. Appx. 128, 131 (3d Cir. 2006). Additionally, the Third Circuit held that it need not discuss Petitioner's waiver of appeal rights in light of its ruling regarding the merits of the appeal. Id. at 129 n1.

On March 9, 2007, Petitioner filed the present § 2255 motion to vacate the sentence on the grounds that, (1) Petitioner's counsel was ineffective when failing to appeal the denied motion to suppress, as well as (2) contesting the reasonableness of the sentence, and (3) challenging the validity of Petitioner's waiver of his § 2255 rights. On August 6, 2007, Respondent moved to dismiss Petitioner's § 2255 petition.

II. Nunez Waived His Right To A § 2255 Motion

Nunez claims that his signed waiver of his § 2255 rights is invalid, and thus, enforcing it would result in a miscarriage of justice for two reasons: first, his Fourth and Sixth Amendment rights were violated, and second, the passage of United States v. Booker by the Supreme Court after he signed the waiver but prior to his sentencing negates his knowing and voluntary agreement. Agreement at 5.*fn1 On direct appeal, the Third Circuit held that given its disposition regarding the reasonableness of Petitioner's sentence, it need not discuss the issue of the waiver. United States v. Nunez, 173 Fed. Appx. 128, 129 n1 (3d Cir. 2006). Nonetheless, on direct appeal, the Circuit Court fully considered and rejected Petitioner's arguments regarding this Court's determination regarding Petitioner's sentence.

Moreover, the Third Circuit has previously held that "by waiving the right to appeal, a defendant necessarily waives the opportunity to challenge the sentence imposed, regardless of the merits." United States v. Khattak, 273 F.3d 557, 561 (3d 2001). As a result, an appellate waiver in a "plea agreement deprives [the court] of jurisdiction over an appeal, so long as the waiver is entered into knowingly and voluntarily and does not work a miscarriage of justice." United States v. Robinson, 244 Fed. Appx. 501, 502 (3d 2007). The same considerations apply if a defendant is collaterally attacking his sentence, rather than challenging it on direct appeal. Id. In actuality, an appellate court has "jurisdiction over appeals, even where . . . the defendant has waived his right to appeal. ,[however, an appellate court] will not exercise that jurisdiction to review the merits of such an appeal if [it] conclude[s] that defendant knowingly and voluntarily waived his right to appeal unless the result would work a miscarriage of justice." United States v. Boika, 262 Fed. Appx. 368, 370 (3d Cir. 2008) (internal citations omitted).

The Court finds Petitioner's §2255 waiver enforceable. "[A] waiver does not become unenforceable simply because a defendant claims ineffective assistance, but only if the record of the criminal proceeding revealed that the claim that the waiver was the result of ineffective assistance of counsel was meritorious." United States v. Akbar, 181 Fed. Appx. 283, 286-287 (2006) citing United States v. Monzon, 359 F.3d 110, 118-19 (2d Cir. 2004) (internal quotations omitted). However, Nunez does not claim that in his case, ineffectiveness of counsel resulted in his signing the waiver unknowingly, involuntarily, or with a lack of understanding. Rather, his ineffective counsel claim is premised upon counsel's failure to appeal the denied motion to suppress evidence.

As a result, Petitioner's waiver of his ยง 2255 rights is effective, and his ineffective counsel claim does ...


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