United States District Court, District of Columbia
D. BATES, UNITED STATES DISTRICT JUDGE.
the Court is  Fernandez's motion to set aside his
sentence under 28 U.S.C. § 2255. Fernandez pleaded
guilty to, and was sentenced on, one count of conspiracy to
distribute cocaine knowing and intending that it would be
unlawfully imported into the United States. See
Judgment [ECF No. 299]. Fernandez had pleaded pursuant to an
agreement that contained, among other provisions, a waiver of
his right to appeal most aspects of his plea and sentence.
See Plea Agreement [ECF No. 247] ¶ 19. In March
2016, Fernandez filed this motion, arguing that the attorneys
who represented him at his first plea hearing, at his second
plea hearing and sentencing, and on his direct appeal were
each ineffective in allowing him to agree to the appeal
waiver, and that he did not understand what the
court-appointed translator said to him during his plea
hearing, rendering the waiver involuntary. See Mot. Under 28
U.S.C. § 2255 ("Def.'s Mot.") [ECF No.
404] at 5-9. For the reasons explained below, the Court will
deny Fernandez's motion.
government indicted Fernandez in January 2010 on three
charges: two counts of conspiracy to distribute five
kilograms or more of cocaine on board a vessel subject to the
jurisdiction of the United States, and one count of
conspiracy to distribute five kilograms or more of cocaine
knowing and intending that the cocaine would be unlawfully
imported into the United States. See Superseding
Indictment [ECF No. 4] at 2-3, 7. On November 10, 2011,
Fernandez signed an initial plea agreement, in which he
agreed to plead guilty to the conspiracy-to-import count in
exchange for the government's agreeing to dismiss the
other two counts; agreed to the statement of facts that
underlay the conspiracy-to-import count; and waived his
appeal rights. See First Plea Agreement [ECF No.
107] ¶¶ 1-3, 19. The same day, Fernandez pleaded
guilty, and the Court accepted the plea. See Min. Entry of
Nov. 10, 2011. Robert E. Abreu represented Fernandez during
the plea bargaining process and at the November 2011 plea
hearing. See Tr. of Nov. 10, 2011 Plea Hearing [ECF
No. 408-4] ¶ 2:9-:10, 17:6-:11.
Fernandez later sent a letter to the Court requesting new
counsel, and Abreu moved to withdraw as counsel in February
2012. See Mot. to Withdraw [ECF No. 131]. The Court
granted Abreu's motion, see Min. Entry of Mar. 13, 2012,
and Brian W. Stolarz was then appointed counsel for Fernandez
under the Criminal Justice Act, see Notice of Appearance [ECF
No. 211]. On August 13, 2012, Fernandez (through Stolarz)
agreed to accept his prior plea again, with a few changes not
relevant here. See Plea Agreement at 11; Tr. of Aug.
13, 2012 Plea Hr'g [ECF No. 408-11] at 2:7-:9, 16:2-:5.
The government asked the Court to conduct a new plea colloquy
with Fernandez under Federal Rule of Criminal Procedure 11,
"to cure any possible Sixth Amendment taint or any other
issues that have come up in the past." See Tr.
of Aug. 13, 2012 Plea Hr'g at 2:9-: 12. The Court agreed
to conduct a new colloquy.
outset of the colloquy, the Court asked Fernandez whether he
could "understand these proceedings through the use of
the interpreter, " to which Fernandez replied:
"Yes, I am understanding it." Id. at
17:25-18:2. The Court informed Fernandez: "If you
don't understand anything about these proceedings or any
question that I ask, just let me know and I'll try to
explain. If at any time you wish to consult with Mr. Stolarz,
let me know that, and you'll be able to talk to him
privately." Id. at 17:5-:8. The Court then
conducted the colloquy, during which the Court asked
Fernandez whether he understood that, "by pleading
guilty, [he] would be generally giving up [his] rights to
appeal." Id. at 25:9-:11. Fernandez responded:
"I would be waiving my right to appeal. Yes, of
course." Id. at 25:12-:13. The Court also asked
whether Fernandez had had a sufficient opportunity to discuss
the charge with Stolarz, to which Fernandez gave an
affirmative response, see Id. at 27:9-:13; the Court
then described the charge against Fernandez, and Fernandez
stated that he understood the charge, see Id. at
27:14-:22. The Court fully explained the appeal waiver and,
after Fernandez again told the Court that he understood that
he was waiving his right to appeal, the Court found that the
waiver had been discussed with counsel and that Fernandez had
knowingly and voluntarily waived his right to appeal.
See Id. at 39:14-40:22. After the colloquy,
Fernandez pleaded guilty and the Court accepted the plea.
See Id. at 44:2-45:13.
continued to represent Fernandez at his sentencing.
See Tr. of Sentencing [ECF No. 323] at 1. There,
Fernandez said that he "ha[d] not participated in any
criminal groups, let alone any drug trafficking, "
Id. at 27:25-28:2, but acknowledged his
"participation" in criminal activity and that he
knew he had "made a mistake, " Id. at
27:8, 27:24. After arguments from each side, during which
Stolarz argued for a sentence significantly below the
Guidelines range, the Court sentenced Fernandez to 144
months' imprisonment, within but on the low end of his
Guidelines range. See Id. at 30:11-13,
32:24-33:4. Fernandez appealed his sentence, represented this
time by Joseph R. Conte. See United States v.
Fernandez, Crim. No. 12-3096 (D.C. Cir. filed Nov. 29,
2012). Fernandez argued that his sentence was unreasonable;
however, as he did not challenge his appeal waiver, the D.C.
Circuit dismissed the appeal on December 1, 2015. See
United States v. Fernandez, 624 Fed.Appx. 3, 3-4 (D.C.
months later, Fernandez filed the instant motion.
See Def.'s Mot. at 1. Fernandez asserts, first,
that Abreu was ineffective because Abreu coerced him to plead
guilty to a crime Abreu knew he had not committed and then
told him to sign away his right to appeal. See
Id. at 5. Fernandez then claims that Stolarz was
ineffective because Stolarz advised him to waive his right to
appeal, knowing "it is wrong" so to advise, and
took him to sentencing despite knowing that Abreu had advised
him inaccurately during his first plea hearing. Id.
at 6. Next, Fernandez asserts that the Court erred in finding
that he had knowingly, intelligently, and voluntarily waived
his right to appeal, since he had not understood the
court-appointed translator and therefore did not realize he
had waived his right to appeal, "because I did not
committed [sic] any crime in America." Id. at
7-8. Finally, Fernandez claims that Conte was ineffective for
not having challenged the waiver on direct appeal despite
knowing that Fernandez had not understood to what he was
agreeing. See id at 9. The government filed a motion
opposing all of Fernandez's claims, see Gov't
Opp'n to Def.'s Mot. ("Opp'n") [ECF No.
408], and Fernandez filed a reply, see Reply [ECF No. 416].
The Court will decide this motion based on the briefs and the
record in this case.
federal prisoner may bring a habeas corpus action in district
court "upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack." 28 U.S.C. § 2255(a). While "the
general rule [is] that claims not raised on direct appeal may
not be raised on collateral review unless the petitioner
shows cause and prejudice, " defendants may bring
ineffective assistance of counsel ("IAC") claims
for the first time on collateral review without having to
meet these standards. Massaro v. United States, 538
U.S. 500, 504, 509 (2003). Instead, IAC claimants "must
show  'that counsel's performance was
deficient' such that 'counsel was not functioning as
the "counsel" guaranteed the defendant by the Sixth
Amendment' and  that 'the deficient performance
prejudiced the defense.'" United States v.
Glover, 872 F.3d 625, 630 (D.C. Cir. 2017) (quoting
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
A court may deny an IAC claim on either of these two prongs
without addressing the other. See Strickland, 466
U.S. at 697.
may also agree to waive their right to appeal their pleas or
sentences. See United States v. Guillen, 561 F.3d
527, 529 (D.C. Cir. 2009). "[A] 'waiver of the right
to appeal a sentence is presumptively valid and is
enforceable if the defendant's decision to waive is
knowing, intelligent, and voluntary.'" United
States v. Lee, 888 F.3d 503, 506 (D.C. Cir. 2018)
(quoting In re Sealed Case, 702 F.3d 59, 63 (D.C.
Cir. 2012)). Even "[a]n anticipatory waiver- that is,
one made before the defendant knows what the sentence will
be"-is enforceable "if the defendant is aware of
and understands the risks involved in his decision."
Guillen, 561 F.3d at 529; accord Lee, 888
F.3d at 506; United States v. Powers, 885 F.3d 728,
731 (D.C. Cir. 2018) ("[I]f the record shows that a
properly informed defendant made the decision 'with eyes
open, ' we will enforce an anticipatory waiver of the
right to appeal." (citation omitted)). However, appeal
waivers are not valid if the defendant makes a colorable
claim that he "received ineffective assistance of
counsel in agreeing to the waiver." Guillen,
561 F.3d at 530.
brings two sets of claims. First, he asserts that he did not
agree knowingly to the appeal waiver in his plea agreement.
And second, he argues that all three of his attorneys were
ineffective. The Court will examine these claims in turn.
VOLUNTARINESS OF ...