HALL, Circuit Judge.
Shawn Tellado ("Tellado") appeals from a judgment entered on July 27, 2011, in the United States District Court for the District of Connecticut (Kravitz, J.) denying his motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.
For the reasons that follow, we affirm the judgment of the district court.
A federal grand jury indicted Tellado as one of a number of defendants involved in a drug conspiracy, in violation of 21 U.S.C. § 846, charging him with conspiracy "to possess with intent to distribute, and to distribute controlled substances, namely mixtures and substances containing a detectable amount of cocaine and cocaine base, Schedule II controlled substances, and heroin, a Schedule I controlled substance, contrary to the provisions of Title 21, United States Code, Section 841(a)(1)." United States v. Tellado, 3:06-CR-00269 (MRK), Indictment 2, Oct. 4, 2006, ECF No. 1.
Id. at 4.
In the plea agreement Tellado also consented to be designated a career criminal under § 4B1.1 of the United States Sentencing Commission Guidelines, effective November 1, 2006, ("the Guidelines"). The bases of the career offender status under § 4B1.1 were two prior convictions for sale of narcotics in violation of Connecticut General Statutes § 21a-277(a)charges to which Tellado had pled guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), thereby sidestepping any need for him to confirm at the time the factual bases of the charges to which he was pleading guilty. As a result of Tellado's designation as a career criminal his offense level under the Guidelines increased from an offense level of 26 to 34. Recognizing his acceptance of responsibility evidenced in the agreement to plead guilty to the federal offense, Tellado's offense level was adjusted to 31. The plea agreement also set out that his criminal history category was VI, resulting in a guidelines imprisonment range of 188 to 235 months, along with a fine in the range of $15,000 to $150,000.
In May 2007, Tellado entered his plea of guilty. After placing Tellado under oath and discussing the effect of a guilty plea on Tellado's trial rights, the court addressed the contents of the plea agreement itself. During that colloquy, the court asked Tellado whether he had carefully read the entire agreement. Tellado responded he had. He also acknowledged reviewing it with his attorney, and when questioned whether he "underst[ood] the terms," Tellado responded "Yes." United States v. Tellado, 3:06-CR-00269 (MRK), Plea Hearing 18:10-20, May 4, 2007, ECF No. 1229 ("Plea Hearing"). Tellado's attorney also informed the court that he was satisfied that his client understood the agreement as a whole.
Next, the district court had the government summarize the terms of the agreement. The government's summary included the bases for designating Tellado as a career offender. The government explained that in 2003 Tellado was convicted of selling narcotics, and that those convictions constituted the predicate offenses triggering a sentencing enhancement.
Four months later, the court sentenced Tellado to 188 months' imprisonment. In the sentencing proceedings, the court advised Tellado that, notwithstanding the plea agreement waiver, Tellado retained a limited right to appeal on the bases of ineffective assistance of counsel or prosecutorial misconduct. The judgment imposing sentence became final on September 24, 2007.
In September of 2008, this court decided United States v. Savage, 542 F.3d 959 (2d Cir.2008). That decision provides the impetus for Tellado's present appeal. In Savage, the defendant argued that his previous conviction for violating Connecticut General Statute § 21a-277(b) was based upon an Alford plea and, thus, could not be counted as a "controlled substance offense" as defined under the Guidelines. Id. at 966. We agreed, holding that a conviction based on an Alford plea to a § 21 a-277(b) violation did not amount to a conviction for a controlled substance offense that could serve as a predicate under the Guidelines.
In light of Savage's holding, Tellado filed in the district court a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The district court denied Tellado's petition on the grounds it was filed outside the one-year period of limitation under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2255(f). Tellado, 799 F.Supp.2d at 162. The district court explained that no new "fact" had been discovered that would extend the starting period for the one-year period of limitations under § 2255, nor did Tellado's circumstances warrant equitable tolling given that Tellado had not demonstrated actual innocence. Alternatively, the district court found that Tellado knowingly and voluntarily waived his right to appeal
Tellado appealed from the denial of his § 2255 motion and the denial of the motion to amend. Pertinent to our disposition of the appeal, Tellado argues that the one-year period does not bar his motion and the portion of the waiver provision in the plea agreement that bars a collateral attack is unenforceable. He also asserts that the district court erred when it dismissed his motion to amend to claim ineffective assistance of counsel. For the reasons set forth below, we agree with the district court that Tellado waived his right to attack collaterally the career offender sentence that was imposed. Additionally, we hold that the district court did not abuse its discretion when it denied Tellado's motion to amend so as to include a claim for ineffective assistance of counsel.
We consider initially whether Tellado's waiver of his right to attack collaterally his sentence is valid and enforceable, thus precluding him from maintaining an action for relief under 28 U.S.C. § 2255. See, e.g., United States v. Monzon, 359 F.3d 110, 116-17 (2d Cir.2004). Tellado asserts that because he was not explicitly informed by the district court judge that he was waiving his right to attack collaterally his sentence, he did not knowingly and voluntarily agree to that provision of the plea agreement, and to that extent the waiver is unenforceable. He does not seek to overturn his conviction or challenge the general sufficiency of the plea agreement, but only to avail himself of a right he argues he never relinquished.
Federal Rule of Criminal Procedure 11(b) requires, among other things, that a court accepting a guilty plea place a defendant under oath and, while addressing the defendant in open court, "inform the defendant of, and determine that the defendant understands ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence...." Fed.R.Crim.P. 11(b)(1)(N). We apply "`plain error review under Rule 52(b) of the Federal Rules of Criminal Procedure'" to examine alleged violations of Rule 11 that were not objected to at the time of the plea. Cook, 722 F.3d at 481 (quoting United States v. Youngs, 687 F.3d 56, 59 (2d Cir.2012)). This review requires that a defendant demonstrate
Id. (alteration in original) (internal quotation marks omitted). Tellado raised no objection to the Rule 11 process at any point during his change of plea, nor did he do so at sentencing. We therefore review for plain error any shortcomings in the Rule 11 proceedings.
Tellado charges that the district court erred when it failed to explain the scope of his right to attack collaterally the sentence and the effect of his waiving this specific right. It is undisputed that the
As a further basis for our conclusion that any deficiency in the Rule 11 proceeding was not plain error, we have said that "to show plain error in the context of Rule 11, `a defendant must establish that the violation affected substantial rights and that there is a reasonable probability that, but for the error, he would not have entered the plea.'" United States v. Yang Chia Tien, 720 F.3d 464, 469 (2d Cir.2013) (quoting United States v. Garcia, 587 F.3d 509, 515 (2d Cir.2009)). In Cook, moreover, we cited as additional support for that defendant's failure to establish plain error the defendant's inability to demonstrate that but for the error he would not have entered the plea. Cook, 722 F.3d at 482-83. The district court recognized the paradox of requiring this showing. That is, a defendant who seeks not to overturn his or her conviction but only "to avoid a waiver of his right to appeal or collaterally attack his sentence on the basis of a Rule 11(b)(1)(N) error," Tellado, 799 F.Supp.2d at 175, nonetheless cannot sustain his or her collateral attack because of the nature of the relief sought. The Supreme Court, however, explained the general reasons to impose this burden upon defendants, namely (1) "to encourage timely objections and reduce wasteful reversals by demanding strenuous exertion to get relief for unpreserved error[;]" (2) to "respect the particular importance of the finality of guilty pleas, which usually rest, after all, on a defendant's profession of guilt in open court, and are indispensable in the operation of the modern criminal justice system ... [;]" and (3) for the supporting reason "that the violation claimed was of Rule 11, not of due process."
The remaining issue for us to decide is whether the district court abused its discretion in denying Tellado's motion to amend his § 2255 motion to include a claim for ineffective assistance of counsel. See LoCascio v. United States, 395 F.3d 51, 54 (2d Cir.2005). Tellado would base his ineffective assistance of counsel claim on his trial counsel's failure to object to the imposition of the career offender enhancement under the Guidelines because Tellado had entered Alford pleas to his violations of Connecticut General Statutes § 21a-277. In other words, Tellado argues that his counsel was ineffective because he failed to anticipate this Court's decision in Savage, which was issued after Tellado's enhanced sentence became final.
Our review of the district court's decision in this regard and the underlying facts assures us that the court was well within its discretion in denying Tellado's motion to amend. Assuming, arguendo, that AEDPA's one year period of limitations, 28 U.S.C. § 2255(f), does not foreclose Tellado's claim for ineffective assistance of counsel, the merits of Tellado's claim are nonetheless unpersuasive. We have recently rejected a similar argument in McCoy v. United States, 707 F.3d 184 (2d Cir.2013), holding "that trial counsel's failure to object to the second offender enhancement does not constitute constitutionally deficient performance," a case on all fours with this one. Id. at 187. On appeal from a denial of his § 2255 petition, McCoy contended that he was deprived of effective assistance of counsel when his counsel failed to anticipate changes in the law reflecting that a defendant's Alford plea to a violation of Connecticut General Statutes § 21a-277(a) could not be used for sentence enhancement purposes. Id. at 188. McCoy was convicted and sentenced pursuant to the second offender provision under 21 U.S.C. § 841(b) in August of 2006 based upon a prior Alford plea to a 1996 violation of Connecticut General Statutes § 21a-277(a). Id. His counsel had failed to offer any objection to the enhancement that was grounded on McCoy's Alford plea to the Connecticut charges. Id. Reviewing the trial attorney's representation, we reiterated that "an attorney is not required to forecast changes or advances in the law in order to provide effective assistance," id. at 188 (internal brackets and quotation marks omitted), and, thus, rejected the claim.
Similarly here, we cannot conclude that Tellado's "trial counsel's performance was unreasonable under `prevailing professional norms.'" See id. (quoting Harrington v. United States, 689 F.3d 124, 129-30 (2d Cir.2012)). Tellado pled guilty in May of 2007 and was sentenced in September of 2007. The Savage decision was published in September of 2008, nearly a year and a half after he had entered his plea and a year after he was sentenced. Though the bedrock elements of the argument that would comprise the disposition in Savage were available to Tellado's counsel at the time of sentencing, counsel acted reasonably in relying on the law as it then stood. See Harrington, 689 F.3d at 129 ("The petitioner's burden is a heavy one because, at the first step of [the] analysis, we must indulge a strong presumption that counsel's conduct falls within the wide range of
For the foregoing reasons, we