946 F. Supp. 2d 320
S.D.N.Y.2013Background
- Powell was indicted for conspiracy to commit wire and bank fraud and faced forfeiture of proceeds.
- Powell pled guilty to Count One under a Plea Agreement that required forfeiture of $110,089 and tied the loss to over $1,000,000 but under $2,500,000.
- The Plea Agreement stated no upward or downward departure from the stipulated Guidelines range, with a joint agreement that Powell would not appeal within 57 months and the Government would not appeal within the range.
- Powell’s criminal history includes two NY convictions (Grand Larceny and Attempted Bribery) used to compute the Guidelines.
- Powell was sentenced to 48 months’ imprisonment with three years of supervised release; he later moved under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence.
- The court ultimately denied the § 2255 petition as waived by the plea agreement and lack of a plausible non-waiver-based claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Powell's § 2255 petition is barred by the knowing and voluntary waiver. | Powell argues waiver is invalid/ineffective. | Waiver is knowing and voluntary and enforceable. | Waiver knowingly and voluntarily bars the petition. |
| Whether Powell’s ineffective-assistance claims survive the waiver. | Counsel provided ineffective assistance in three respects. | Waiver precludes review of such claims. | Waiver prevents consideration of ineffective-assistance grounds. |
Key Cases Cited
- Nicholson v. United States, 566 F.Supp.2d 300 (S.D.N.Y. 2008) (enforces knowing and voluntary appellate waivers in plea agreements)
- Arevalo v. United States, 628 F.3d 93 (2d Cir. 2010) (recognizes enforceability of waiver when knowing and voluntary)
- Granik v. United States, 386 F.3d 404 (2d Cir. 2004) (waiver enforced to preserve bargaining value of plea terms)
- Ready v. United States, 82 F.3d 551 (2d Cir. 1996) (requirements for waiver knowing and voluntary)
- DeJesus v. United States, 219 F.3d 117 (2d Cir. 2000) (plea colloquy establishes waiver understanding)
- Braithwaite v. United States, 242 Fed.Appx. 765 (2d Cir. 2007) (attorney’s explanation of plea terms supports waiver validity)
- Paredes-Cisnero v. United States, 869 F.Supp.2d 402 (S.D.N.Y. 2012) (plea-allocution evidence supports knowing waiver)
- Acosta v. United States, 691 F.Supp.2d 402 (S.D.N.Y. 2009) (waiver enforceability when knowingly and voluntarily made)
- United States v. Williams, 448 Fed.Appx. 156 (2d Cir. 2012) (cannot attack waiver via ineffective-assistance grounds)
- United States v. Checo, 205 F.3d 1325 (2d Cir. 1999) (barrier to circumventing waivers through claims of ineffective assistance)
- United States v. Djelevic, 161 F.3d 104 (2d Cir. 1998) (waiver language preserved against challenges to sentence)
- Torres v. United States, 129 F.3d 710 (2d Cir. 1997) (plea allocution statements carry veracity in waiver context)