Paredes-Cisnero v. United States

869 F. Supp. 2d 402, 2012 U.S. Dist. LEXIS 86619, 2012 WL 2367057
CourtDistrict Court, S.D. New York
DecidedJune 19, 2012
DocketNos. 11 Civ. 2908 (VM), 03 Cr. 809 (VM)
StatusPublished
Cited by1 cases

This text of 869 F. Supp. 2d 402 (Paredes-Cisnero v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Paredes-Cisnero v. United States, 869 F. Supp. 2d 402, 2012 U.S. Dist. LEXIS 86619, 2012 WL 2367057 (S.D.N.Y. 2012).

Opinion

DECISION AND ORDER

VICTOR MARRERO, District Judge.

Petitioner Jose Paredes-Cisnero (“Paredes-Cisnero”) brought this pro se petition pursuant to 28 U.S.C. § 2255 (“ § 2255”) to vacate, set aside, or otherwise correct his sentence. On April 30, 2004, the Court sentenced Paredes-Cisnero to 151 months of imprisonment to be followed by a five-year term of supervised release for attempting to distribute and possess with the intent to distribute approximately 3 kilograms of cocaine and 500 grams of heroin. Paredes-Cisnero contends that his sentence must be amended because the Fair Sentencing Act of 2010 and an amendment to the United States Sentencing Guidelines (“Amendment 742”) should apply to his sentence. For the reasons discussed below, Paredes-Cisnero’s petition is DENIED.

I. BACKGROUND1

On July 1, 2003, Paredes-Cisnero was indicted for one count of unlawfully, intentionally, and knowingly attempting to distribute and possess with the intent to distribute approximately three kilograms of cocaine and five hundred grams of heroin, in violation of Title 21, United States Code, Sections 812, 841(a)(1), 841(b)(1)(B), and 846.

On January’ 9, 2004, pursuant to a plea agreement with the government, Paredes-Cisnero pled guilty to the indictment. In his agreement, Paredes-Cisnero acknowledged that: (1) the offense level for his violation, was 29, (2) he would be placed in Criminal History Category VI because he had 13 criminal history points, a calculation which included the fact that he committed the underlying offense within two years of a previous conviction, (3) the applicable Sentencing Guidelines Range, based on his violation and criminal history category, was between 151 to 188 months, and (4) he waived his right to appeal— directly or collaterally under Title 28, United States Code, Section 2255 and 2241—any sentence within or below the applicable Sentencing Guidelines range. During his plea allocution on the same day, Paredes-Cisnero stated that he under[404]*404stood the consequences of his plea agreement and that he was voluntarily pleading guilty. (See Opposition, Ex. B at 19, 27 (“Plea Transcript”)).

Subsequently, on April 30, 2004, this Court sentenced Paredes-Cisnero to prison for 151 months to be followed by five years of supervised release. Paredes-Cisnero did not appeal the sentence, and his conviction became final on May 21, 2004. He is currently serving his sentence, and his projected release date is on or about August 12, 2014.

On or about April 19, 2011, nearly seven years after Paredes-Cisnero’s conviction became final, he filed a motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, arguing that the length of his sentence should be reduced because of the Fair Sentencing Act of 2010 and Amendment 742 to the United States Sentencing Guidelines. The Fair Sentencing Act decreased the statutory penalties for crack cocaine and eliminated the mandatory minimum sentence for simple possession of crack cocaine. Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372 (2010). Amendment 742 became effective on November 1, 2010 and eliminated the additional criminal history points that a defendant would receive if he had committed a crime within two years of being released from prison for a prior offense. See Sentencing Guidelines for United States Courts, 75 Fed.Reg. 27388, 27393 (May 14, 2010); U.S.S.G. § 4A1.1.

On May 17, 2011, the Court notified Paredes-Cisnero that it would construe his § 2241 petition as a § 2255 petition because he is a federal prisoner challenging his sentence as a violation of the Constitution or laws of the United States. See Jiminian v. Nash, 245 F.3d 144, 146-47 (“A motion pursuant to § 2241 generally challenges the execution of a federal prisoner’s sentence ... [whereas] § 2255 is generally the proper vehicle for a federal prisoner’s challenge to his conviction and sentence.” (emphasis removed)). In addition, the Court ordered Paredes-Cisnero to explain why his petition should not be dismissed as time-barred because a habeas petition invoking the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) must be filed within one year of the entry of final judgment. In response to the Court Order, Paredes-Cisnero argues that his petition should not be time-barred because he filed it as soon as he was aware of the amendments that he asserts affect his sentence.

The Government contends that in his plea agreement Paredes-Cisnero waived his right to file a motion under § 2255 and that the amendments do not affect his sentence. Paredes-Cisnero failed to submit a response within thirty days of receiving the Government’s argument.

II. DISCUSSION

A. RELIEF UNDER § 2255

At the outset, the Court notes that Paredes-Cisnero is a pro se litigant. As such, his submission must be held “to less stringent standards than formal pleadings drafted by lawyers.” Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir.1993) (quoting Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)). The Court must construe Paredes-Cisnero’s submissions “liberally and interpret them to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (citation omitted). A pro se litigant, however, is not exempt “from compliance with relevant rules of procedural and substantive law.” Boddie v. N.Y. State Div. of Parole, 285 F.Supp.2d 421, 426 (S.D.N.Y.2003) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983)).

[405]*405A person in federal custody may move to vacate, set aside, or correct his sentence if it was imposed in violation of “the Constitution or laws of the United States, or the court was without jurisdiction to impose such a sentence, or ... the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

B. PAREDES-CISNERO’S PLEA AGREEMENT

When included in a valid plea agreement, a waiver of the right to appeal a sentence that is within or below the stipulated sentencing guidelines is presumptively enforceable. See Nicholson v. United States, 566 F.Supp.2d 300, 302 (S.D.N.Y.2008). Accordingly, courts will enforce such waivers as long as the record clearly demonstrates that the waiver was knowing—in the sense that the petitioner understood the consequences of the waiver—and voluntary—in the sense that the petitioner was not coerced or threatened into agreeing to the waiver. See United States v. Ready, 82 F.3d 551, 556-57 (2d Cir.1996); Nicholson, 566 F.Supp.2d at 303.

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Bluebook (online)
869 F. Supp. 2d 402, 2012 U.S. Dist. LEXIS 86619, 2012 WL 2367057, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paredes-cisnero-v-united-states-nysd-2012.