DENISE COTE, District Judge
Through his petition for a writ of habeas corpus, Jose Toribio ("Toribio") contends that his sentence of 108 months' imprisonment should be vacated because his attorney informed him that he should receive a sentence of fifty-seven months' imprisonment due to his cooperation with the Government. For the following reasons, the petition is denied.
Background
On February 14, 2001, following a criminal investigation in which Toribio paid $15,000 to a Government informant for a past drug debt and was recorded discussing other drug transactions, Toribio was arrested. At that time, two trap compartments were located in the vehicle which he was driving.
On August 22, Toribio, his retained counsel and the Government executed a written plea agreement ("Agreement") in which Toribio's sentencing guidelines range was calculated as 108 to 135 months, assuming that Toribio qualified at the time of his sentence for the safety valve adjustment pursuant to 18 U.S.C. § 3553(f). By executing the Agreement, Toribio agreed that he would not "appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the Stipulated Sentencing range."
Later that same day and with the assistance of an interpreter, Toribio entered a plea of guilty before this Court. At the time of his allocution, Toribio was under oath. Toribio reported that he had attended college, and that his mind was clear and he understood what was happening in the proceeding. Toribio acknowledged that the Agreement had been translated to him before he signed it, that he believed he understood the Agreement, that in the Agreement he had agreed that his sentencing guidelines range was 108 to 135 months, and that he had no other agreement with the Government concerning his plea or sentence. He specifically acknowledged his agreement not to challenge his sentence so long as the Court did not impose a sentence greater that 135 months. He represented that he had had a sufficient opportunity to discuss his plea and its consequences with his attorney, and was satisfied with his representation by his attorney. Toribio stated that from 1997 to 2000 he had been involved in multiple drug transactions in the Bronx, and that the transaction for which he was arrested involved five kilograms of cocaine. Toribio was advised of each of the provisions of the safety valve adjustment, and told that the Court would determine at sentencing whether he qualified for it and could be sentenced as a result to less than the ten year mandatory term of imprisonment that would otherwise apply. Among other things, Toribio acknowledged that he understood that neither his attorney nor anyone else could predict his sentence, since the Court would decide his sentence and would not do it until after reviewing the Presentence Report that would be prepared by the Probation Department.
The Pre-Sentence Report ("Report") calculated Toribio's guidelines range as 108 to 135 months. Toribio was sentenced on September 26. At that time, his attorney represented in Toribio's presence that the Report had been translated to Toribio, that they had discussed it, and that they had no objections to it. After confirming that Toribio qualified for the safety valve adjustment, the Court determined that the applicable guidelines range was 108 to 135 months. Toribio, who was again assisted by an interpreter, made no objection. The Court imposed a term of imprisonment of 108 months, the bottom of the guidelines range.
Toribio filed a timely notice of appeal, and newly appointed counsel for him on appeal filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). The appeal was dismissed on October 7, 2003.
Meanwhile, through a petition dated November 1, 2002, and filed on December 10, 2002, Toribio sought a writ of habeas corpus. He claimed ineffective assistance of counsel, representing that his attorney had told him that "pursuant to my cooperation, I would be sentenced to no more than 36 months." He asserted that this representation led him to cooperate and to plead guilty. He also asserted that his attorney had failed to file a notice of appeal on his behalf, despite saying that he would do so.
Because of the pending appeal, on December 20, 2002, the Court stayed the petition. Learning in 2005 that the appeal had been dismissed and that the mandate had issued, on July 6, 2005, the Court issued an Order lifting the stay and scheduling briefing on the petition. The Court regrets the delay that occurred in addressing the petition, but notes that neither Toribio nor the Government ever requested that the stay be lifted.
In its opposition to the petition, the Government pointed outinter alia that Toribio had filed a notice of appeal and did not have any cooperation agreement with the Government. In his reply of November 29, 2005, Toribio abandons any claim related to the failure to file a notice of appeal, and any allegation that he had cooperated with the Government. He also revises his assertion about the length of the sentence he understood he was to receive. He asserts that he wrote 36 months in his petition because of a typing error, and that he had really been offered 57 months' imprisonment.
Toribio now asserts that he pleaded guilty because of his attorney's misrepresentation that he and the Government would be requesting a sentence of no more than 57 months' imprisonment. He claims that he "never saw" the Agreement that he signed on August 22, and that it was never explained to him. He adds that he did not understand what the Court asked him during his allocution even though he was using an interpreter, and he would have gone to trial rather than face up to 108 months in prison. He explains that he never sold cocaine, but only picked up cocaine for someone else once in 1997, two or three times in 1998, and once in 2000. Toribio asks that his sentence be reduced to 57 months' imprisonment.
To support the assertion that he understood that he was pleading guilty to a guidelines range that would result in a sentence of 57 months' imprisonment, Toribio attaches an unsigned draft of a plea agreement dated August 16, 2001 ("Draft Agreement"), that calculates a guidelines range of 97 to 121 months, and reflects a mandatory minimum sentence of 120 months, or ten years. The Draft Agreement has handwritten notes on it and calculations of a guidelines sentence on a separate piece of paper. Toribio reports that these are his attorney's notes. On the Draft Agreement, someone has crossed out the section reflecting a criminal history category of II, and has written: "minor role?". The handwritten notes on the separate page show a guidelines range of 57 to 71 months, which is apparently calculated from a base offense level of 32, and adjustments for minor role in the offense and pursuant to the safety valve provision of the law.
The Draft Agreement differs from the Agreement in the following ways. The Draft Agreement has a base offense level of 32 and a criminal history category of II. The Agreement reflects a base offense level of 36, a safety valve adjustment, and a criminal history category of I. Essentially, because Toribio's criminal history category was ultimately determined to be I, he was eligible for the safety valve adjustment if he truthfully described certain conduct related to the offense to which he was pleading guilty to the Government. The safety valve proffer apparently resulted in a higher base offense level, but permitted an overall calculation of a lower guidelines range and imposition of a sentence below the mandatory minimum term of imprisonment of ten years.
The Agreement, the Draft Agreement, and the handwritten notes all include a three-level adjustment for entry of a timely plea.
Comparing each of these documents, it would appear that some time between August 16 and August 22, 2001, it was determined that Toribio had a criminal history category of I, and was eligible to receive a sentence below the ten year mandatory minimum term of imprisonment for a violation of 21 U.S.C. § 841 (b) (1) (A). His attorney also discussed with Toribio the possibility of a minor role adjustment, but did not obtain the Government's agreement to one. The issue of a role adjustment was never raised with the Court. Also, the information conveyed in the safety valve proffer resulted in a higher base offense level than reflected in the Draft Agreement, but permitted a sentence below the mandatory ten year term of imprisonment.
Discussion
There is a "strong presumption of accuracy" accorded a defendant's statements during a plea allocution. United States v. Juncal, 245 F.3d 166, 171 (2d Cir. 2001). As a result, "absent a substantial reason to find otherwise," a court does not "abuse its discretion in discrediting later self-serving and contradictory testimony as to whether a plea was knowingly and intelligently made." Id. Where a defendant claims that his attorney misled him as to the possible sentence he might receive from a plea of guilty, "the issue is whether the defendant was aware of actual sentencing possibilities, and if not, whether accurate information would have made any difference in his decision to enter a plea." United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005) (citation omitted).
Toribio's sworn statements during his allocution completely undermine his claim, and he has not overcome the presumption of accuracy that ordinarily applies to such statements. Toribio was specifically instructed during his allocution that neither his attorney nor anyone else could predict his sentence, and that the Court would not determine what his sentence should be until it had done an independent calculation of the guidelines range after reviewing the Presentence Report prepared by the Probation Department and decided whether to depart up or down from the guidelines range. Toribio was also specifically advised of the statutory maximum sentence, and the guidelines range of 108 to 135 months contained in the Agreement. Toribio was carefully questioned to establish his competence and agreed to tell the Court if he had any difficulty understanding what was said through the interpreter. His contradictory allegations in his petition and his more recent reply to the Government's opposition to the petition, suggest strongly that his allegations are self-serving and not genuine.
Even if one assumes that Toribio did not read the Agreement he signed, and lied to the Court when he acknowledged its terms, Toribio has not shown that he would have made any different decision about entering a plea of guilty. The evidence against him was strong, and a conviction following trial would have resulted in the imposition of a mandatory ten year term of imprisonment, at the very least. With his agreement to provide a safety valve proffer and to plead guilty, Toribio avoided that mandatory minimum term of imprisonment.
Conclusion
Toribio's petition for a writ of habeas corpus is denied. The petitioner has not made a substantial showing of a denial of a federal right, and appellate review is, therefore, not warranted.Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). In addition, I find, pursuant to Title 28, United States Code, Section 1915 (a) (3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of the Court shall dismiss the petition and close the case.
SO ORDERED.
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