P. KEVIN CASTEL, District Judge.
Rainold Villafane has filed,
Villafane brought the instant petition on July 26, 2013. (Docket # 1, 13 Civ. 5328 (PKC).) The government answered on December 16, 2013. (Docket # 7.) After a request for an extension of time, the Court set a reply deadline of March 17, 2014. (Order 1, Docket # 9.) As of June 17, 2014, Villafane has not filed a reply. Consequently, the Court will consider the documents submitted with Villafane's petition, the government's response, and any declarations already provided to the Court.
For reasons explained, Villafane's petition is denied.
Villafane was initially charged with conspiracy to distribute and possess with intent to distribute five kilograms and more of mixtures and substances containing a detectable amount of cocaine and one kilogram and more of mixtures and substances containing a detectable amount of heroin. (Apr. 13, 2012, Tr. 7.) At the time of his arrest, officers conducted a search of his mother's apartment and recovered a firearm. (
On April 13, 2012, Villafane pleaded guilty to the lesser included offense of conspiracy to distribute and possess with intent to distribute one kilogram and more of mixtures and substances containing a detectable amount of cocaine. (Apr. 13, 2012, Tr. 7-8, 18.) By the terms of his plea agreement (the "Plea Agreement"), in exchange for Villafane's plea of guilty, the government would not prosecute him for his possession of a firearm in furtherance of the conspiracy. (Resp't's Mem. of Law in Opp'n to Pet'r's Pet. Ex. B ("Plea Agreement"), at 2.) According to the Plea Agreement, Villafane and the government stipulated to an offense level under the Guidelines that included a two level enhancement for possession of a firearm. (
At the plea proceeding, Villafance confirmed that he felt "good" and that his mind was clear. (Apr. 13, 2012, Tr. 4.) He confirmed that he had enough time to discuss all of his options with his lawyer and was satisfied with his lawyer's representation of him. (
Villafane acknowledged that, under the Plea Agreement, he "waived [his] right to appeal or collaterally attack a sentence, unless the sentence that [the Court] impose[s] is above the stipulated guideline range, and, in that event, the law will only allow [him] to challenge the sentence on the ground that it is unreasonable or contrary to law." (Apr. 13, 2012, Tr. 13.) Villafane further acknowledged that, by pleading guilty, he waived the right to "object to evidence offered by the government." (
The Court inquired of the facts which led Villafane to believe he was guilty. He stated that he conspired with others to sell one kilogram of cocaine and that "the allegation[s] that the prosecutor brought to [the Court's] attention [were] correct." (Apr. 13, 2012, Tr. 15-16.) Villafane further stated that he knew what he was doing was wrong and unlawful. (
Subsequently, the Court sentenced Villafane to 70 months, which was the low end of the guideline range, and recommended that he be evaluated for the Bureau of Prisons's Residential Drug Abuse Program (the "RDAP"). (July 26, 2012, Tr. 14-16.)
"It is well settled that a defendant's plea of guilty admits all of the elements of a formal criminal charge and, in the absence of a court-approved reservation of issues for appeal, waives all challenges to the prosecution except those going to the court's jurisdiction."
The Second Circuit has consistently upheld the validity and enforceability of a waiver of a right to appeal or collaterally attack a sentence present in a plea agreement.
Villafane asserts that, by failing to inform him that the weapons sentencing enhancement would preclude him from participating in the RDAP, he was deprived of his right to effective assistance of counsel. On a claim of ineffective assistance of counsel, a defendant must first overcome a presumption of effective representation by presenting evidence that counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms.
According to Villafane, he only pleaded guilty on the assumption that he would qualify for the RDAP. But the Plea Agreement explicitly stated that the Court would not be bound by its terms. (
Implicit in Villafane's assertion is that, but for the sentencing enhancement, the BOP would have accepted him into the RDAP. As the BOP's decision is discretionary, this outcome is not necessarily certain. Because the Court does not have the authority to compel the BOP to accept Villafane into the program, the Court cannot conclude that counsel's failure to object to the sentencing enhancement in the plea agreement had an effect sufficient to "undermine confidence" in Villafane's guilty plea.
Based on the foregoing reasons, the petition (Docket # 1, 13 Civ. 5328 (PKC) is DENIED. The Clerk is directed to enter judgment for the respondent.
Villafane has not made a substantial showing of the denial of a constitutional right and, accordingly, a certificate of appealability will not issue. 28 U.S.C. § 2253;
SO ORDERED.