U.S. District Court for Western District of NY denies petitioner's

In a case where the petitioner pleaded guilty to a drug-related charge, the U.S. District Court for the Western District of New York denied the petitioner's motion to vacate or correct his sentence of 169 months of incarceration.

After reviewing the plea agreement, Judge John T. Elfvin in Sheldon Allen a/k/a Glasses v. United States, found the petitioner waived his right to appeal and to collaterally attack his sentence since the sentence of 169 months fell within the stipulated range as stated in the plea agreement. The judge also found no merit to the petitioner's claim that his attorney provided ineffective assistance of counsel during the plea agreement process.

Petitioner's Conviction

In May 2003, the petitioner, Sheldon Allen, pleaded guilty to conspiring to distribute and to possess with the intent to distribute five kilograms or more of cocaine.

The court sentenced Allen to 169 months of imprisonment and five years of supervised release.

In January 2004, Allen filed a pro se motion to set aside, vacate or correct his sentence pursuant to 28 USC Section 2255. He asserted his attorney provided him with ineffective assistance of counsel by: (1) failing to make various pretrial motions; (2) failing to ensure that he could make a motion for downward departure at the time of his sentencing; (3) failing to adequately explain the consequences of signing the plea agreement and pleading guilty; and (4) working with the government in order to lure him into pleading guilty.

Court's Discussion

Plea Agreement

After reviewing the plea agreement, the court determined that Allen waived his right to appeal and to collaterally attack his sentence.

Specifically, the plea agreement stated: The defendant, ... knowingly waives the right to appeal ... and collaterally attack any 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 II... .

The plea agreement outlined a sentencing range between 151 to 188 months. Allen was subsequently sentenced to a 169-month sentence.

Because petitioner's sentence is within the stipulated guideline range, petitioner explicitly waived any right he may have had to collaterally attack his sentence by means of a Section 2255 motion, wrote Judge Elfvin, citing Garcia-Santos v. United States, 273 F3d 506, 509 (Second Cir. 2001).

Moreover, the judge found Allen's waiver was knowing and voluntary, see Rule 11 of the Federal Rules of Criminal Procedure.

At the plea proceeding the court reviewed the written plea agreement with petitioner. Petitioner agreed with and admitted to the factual basis for the charge to which he pled guilty, explained Judge Elfvin. He also indicated that he understood that his sentence would be determined in accordance with the sentencing guidelines.

To permit petitioner to collaterally attack his plea under Section 2255 would be to condone an obvious circumvention of the plea agreement wherein petitioner bargained away his right to appeal or collaterally attack his sentence, added the judge.

Ineffective Assistance Of Counsel

The court also rejected Allen's ineffective assistance of counsel claim.

Petitioner cannot escape the waiver provision by dressing up his claims as a violation of the Sixth Amendment right to effective assistance of counsel, wrote the district court. Petitioner is in reality challenging the correctness of his sentence under the sentencing guidelines, and is therefore barred by the plain language of the waiver contained in his plea agreement with the government.

Moreover, the court found Allen's allegations against his attorney failed to meet the standard for establishing ineffective assistance of counsel - (1) the attorney's conduct fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for the attorney's errors, he would not have pleaded guilty and would have insisted on going to trial, see United States v. Coffin, 76 F3d 494, 497-98 (Second Cir. 1996).

In particular, the court determined Allen's attorney did not err by failing to file certain pre-trial discovery and suppression motions since there was no merit to the motions.

Counsel's failure to file a meritless motion is not ineffective assistance, explained Judge Elfvin.

The judge also found no merit to Allen's claim with regard to his attorney's alleged failure to preserve his right to move for a downward departure at the time of sentencing. The facts of the case showed that Allen's attorney filed and argued a motion for a downward departure at the time of sentencing but that the court rejected the request.

Lastly, Judge Elfvin concluded there was insufficient evidence that Allen's attorney worked with the government to lure Allen into accepting the plea agreement and the sentence. Instead, the judge pointed out Allen's attorney had negotiated with the government so that Allen avoided a 20-year statutory mandatory minimum period of incarceration based on a prior conviction for Criminal Possession of a Controlled Substance in the Fifth Degree.

Court's Ruling

In conclusion, the district court denied Allen's motion for resentencing based on its finding that he waived his right to appeal and to collaterally attack his sentence when he entered into the plea agreement.

The court also rejected Allen's ineffective assistance of counsel claims.

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