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United States v. Fernandez

United States District Court, District of Columbia

May 21, 2018




         Before the Court is [404] 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.

         I. BACKGROUND

         The 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.

         However, 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.

         At the 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.

         Stolarz 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. Cir. 2015).

         Three 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.[1]


         A 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 [1] 'that counsel's performance was deficient' such that 'counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment' and [2] 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.

         Defendants 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.


         Fernandez 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.

         A. VOLUNTARINESS OF ...

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