United States District Court, D. Massachusetts
ORDER ON PETITION UNDER 28 U.S.C. § 2255 (DOC.
Sorokin United States District Judge.
Alberto Arias pled guilty to conspiracy to possess with
intent to distribute heroin and cocaine, possession with
intent to distribute heroin, and possession of a firearm in
furtherance of a drug trafficking crime on March 1, 2017
pursuant to a B plea agreement. See generally Doc.
Nos. 199, 240. By pleading, Arias waived his right to appeal
or to otherwise challenge his plea, and also waived his right
to appeal or otherwise challenge “any sentence of
imprisonment of 168 months or less, ” except that his
right to raise counsel-ineffectiveness claims was preserved.
Doc. No. 199 at 5. When Arias entered his plea, this Court
explained the major terms of his plea agreement, including
the appeal waiver provision. Doc. No. 240 at 11-12. Arias
agreed that he had signed the plea agreement, had discussed
its terms with his lawyer, understood the terms, and
specifically understood that he had waived most of his appeal
rights. Id. at 8, 13, 18-19.
September 7, 2017, this Court sentenced Arias to a total of
eighty-seven months' incarceration-twenty-seven months on
the drug charges, followed by the mandatory sixty months on
the gun charge. Doc. No. 227; Doc. No. 242 at 19-20. When he
addressed the Court during his sentencing hearing, Arias
expressed no confusion or dissatisfaction with the terms of
his plea agreement, nor with his counsel's
representation. Doc. No. 242 at 15-16; see also Doc.
No. 240 at 8 (reflecting Arias's assurance that he was
satisfied with his attorney's representation at the time
of the guilty plea). After imposing the sentence, this Court
explained to Arias that any appeal of his plea or sentence
would have to be filed within fourteen days, but reminded
Arias that he had “waived certain rights of
appeal.” Doc. No. 242 at 22.
direct appeal was filed by Arias or on his behalf. Nearly
seven months after his sentencing, Arias submitted a pro se
petition pursuant to 28 U.S.C. § 2255 in which he
asserted challenges to his sentence and to his lawyer's
effectiveness. Doc. No. 236. Specifically, Arias claimed his
sentence violated his constitutional rights due to: 1)
“counsel's failure to file an appeal as
directed, ” 2) counsel's failure to address
“disparity issues” and ensure Arias
“receive[d] a sentence comparable to other defendants,
” and 3) “counsel's failure to either file a
Sentencing Memorandum or place on the record a downward
variance in light of Dean v. United States[, 137
S.Ct. 1170] (2017).” Doc. No. 236 at 1-2 (emphasis in
original). The Court ordered the government to respond to the
first two claims and deemed Arias's submission a waiver
of the attorney-client privilege as to the first claim.
See Doc. No. 237 (requiring a response to
“Ground One” in the pro se petition, which
includes the first two claims).
government responded as required, Doc. No. 245, supporting
its memorandum with a copy of an email in which Arias's
defense counsel stated he was “not aware of any
direction or request from [Arias] to file a notice of appeal
or seek appellate review of the sentence, ” Doc. No.
245-1; see Doc. No. 245-2 (declining to provide an
affidavit but stating counsel would “restate what [he]
conveyed” in his email “[i]f asked by the
relief pursuant to § 2255 is an extraordinary remedy,
available only to a defendant who makes “a sufficient
showing of fundamental unfairness.” Singleton v.
United States, 26 F.3d 233, 236 (1st Cir. 1994). Federal
habeas relief is available to Arias only if his sentence was
imposed in violation of the Constitution or laws of the
United States, was imposed by a court which lacked
jurisdiction over the criminal charge, exceeded the maximum
penalty authorized by law, or otherwise is subject to
collateral attack. See David v. United States, 134
F.3d 470, 474 (1st Cir. 1998) (describing limited nature of
§ 2255 relief). Arias bears the burden of establishing
that he is entitled to relief. Id.
out a claim of counsel ineffectiveness warranting relief
under § 2255, a defendant “must show both
deficient performance by counsel and resulting
prejudice.” Tevlin v. Spencer, 621 F.3d 59, 66
(1st Cir. 2010); accord Strickland v. Washington,
466 U.S. 668, 687 (1984); see Roe v. Flores-Ortega,
528 U.S. 470, 477 (2000) (applying Strickland
standard to claim that counsel failed to file an appeal).
Deficient performance is shown where “counsel's
representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688.
Prejudice exists where “there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694;
see Glover v. United States, 531 U.S. 198, 200
(2001) (explaining prejudice would arise “if an
increased prison term” resulted from deficient
performance at sentencing).
the three claims identified in Arias's petition warrant
relief. Arias's counsel has represented that Arias did
not instruct him to file an appeal, and Arias has provided no
details regarding this issue sufficient to support a finding
by this Court that such a request was made. Doc. No. 236 at 1
(alleging summarily counsel's failure to file an appeal
“as directed, ” but offering no additional facts
and attaching no declaration or affidavit by Arias presenting
such facts); see Rule 2(b), 28 U.S.C. foll. §
2255 (requiring application for relief under § 2255 to
“state the facts supporting each ground”). The
absence of such facts, and the lack of a direct appeal, make
sense here. Arias received a total sentence below 168
months. Through his guilty plea agreement, Arias
waived his right to appeal such a sentence, with only a
limited exception for counsel-ineffectiveness claims (which
generally are not properly raised via direct appeal). Doc.
No. 199 at 5; see United States v. De-La-Cruz
Castro, 299 F.3d 5, 15 (1st Cir. 2002). The Court found
at the time of the guilty plea, and affirms now, that
Arias's waiver of his right to appeal was knowing and
voluntary. Doc. No. 240 at 27; see United States v.
Gates, 709 F.3d 58, 69-70 (1st Cir. 2013) (“A
defendant is normally bound by the representations that he
himself makes in open court at the time of his plea.”).
The record presents no reason to believe that enforcement of
the waiver would work a miscarriage of justice. See
United States v. Teeter, 257 F.3d 14, 24-26 (1st Cir.
2001). In these circumstances, Arias has not demonstrated his
counsel performed deficiently under Strickland by
failing to pursue a direct appeal. Cf. Roe, 528 U.S.
at 479 (explaining it would not be “professionally
unreasonable as a constitutional matter” for counsel
not to discuss appeal decision with client and not to appeal
where knowing and voluntary guilty plea is entered, expected
sentence is imposed, and no non-frivolous grounds for appeal
remaining two challenges rest on assertions that are flatly
contradicted by the record. The transcript of his sentencing
demonstrates that his counsel did raise “disparity
issues” when arguing on Arias's behalf-pointing
specifically to the sentences his codefendants received and
urging consideration of the defendants' relative
culpability. Doc. No. 242 at 14. Moreover, his counsel did
file a Sentencing Memorandum on Arias's behalf (along
with supporting exhibits), in which he cited Dean in
urging the Court to “consider the aggregate effect of a
successive mandatory sentence.” Doc. No. 221 at 14-15;
see Doc. No. 242 at 14 (echoing the same position
and again referencing Dean at Arias's sentencing
hearing). This Court explicitly acknowledged “the need
to avoid unwarranted disparities” among the
co-defendants' sentences, and “consider[ed] the
aggregate sentence.” Doc. No. 242 at 19. Plainly,
counsel cannot be ineffective for failing to do things the
record demonstrates he did, in fact, do.
Arias's motion to vacate his conviction under § 2255
(Doc. No. 236) is DENIED.
 His total sentence is less than the
one requested by the government. Doc. No. 242 at 17. It falls
at the bottom end of the applicable guidelines range-a range
which Arias does ...