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United States v. Fernandez

United States District Court, D. Massachusetts

January 31, 2019

UNITED STATES OF AMERICA
v.
JAIRO FERNANDEZ, Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Petitioner Jairo Fernandez (“Fernandez”) has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255 (the “Petition”). D. 189. For the reasons discussed below, the Court DENIES the Petition.

         II. Standard of Review

          An incarcerated person may seek post-conviction relief under § 2255 if his sentence “(1) was imposed in violation of the Constitution; (2) was imposed by a court that lacked jurisdiction; (3) exceeded the statutory maximum; or (4) was otherwise subject to collateral attack.” David v. United States, 134 F.3d 470, 474 (1st Cir. 1998). It is Petitioner's burden to make out a claim for such relief. Id.

         III. Relevant Factual and Procedural Background

          On September 25, 2013, Fernandez was charged with conspiracy to possess with intent to distribute and to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 846 and two substantive counts of possession with intent to distribute and distribution of heroin in violation on 21 U.S.C. § 841(a)(1). D. 17. On November 4, 2014, Fernandez entered into a plea agreement with the government pursuant to Fed.R.Civ.P. 11(c)(1)(C). D. 100. Under the agreement, among other things, Fernandez agreed to plead guilty to the three charges against him, admit that the charged conspiracy involved 100 grams or more of heroin and that this quantity was attributable and reasonably foreseeable to him, and waive his rights to appeal or collaterally challenge his conviction or sentence. D. 100 at 1, 4. Specifically, Fernandez waived his “right to challenge [his] conviction on direct appeal or in any future proceeding (collateral or otherwise)” and also “waived any rights [Fernandez] may have to challenge the agreed-upon sentence . . . on direct appeal and in a future proceeding (collateral or otherwise).” D. 100 at 4. In exchange, the government agreed, among other things, to withdraw the 21 U.S.C. § 851 Information it had previously filed and join in the “agreed disposition” of 120 months. D. 100 at 4.

         On November 13, 2014, Fernandez entered a guilty plea to the charges pursuant to this agreement. D. 105, 137. As part of the plea colloquy with Fernandez, in response to the Court's questions, Fernandez indicated that he had a chance to read the plea agreement and discuss it with his counsel before signing it and that he understood the terms of the plea agreement D. 137 at 7-8. The Court also specifically inquired about the waiver of his appellate rights, having Fernandez turn to the relevant page of the plea agreement regarding same. D. 137 at 13. Fernandez indicated that he understood that he had waived or given up certain of his appellate rights, had the opportunity to discuss this provision of the plea agreement with his counsel before he signed the agreement and that he understood the impact that this provision had on his appellate rights. D. 137 at 13-14.

         Since the plea agreement entered by the parties was under Fed. R. Civ. 11(c)(1)(C) and the Court would have to accept their agreed to disposition of 120 months if the Court accepted the plea agreement, D. 100 at 2, the Court took Fernandez's guilty plea on November 13, 2014, but deferred acceptance of same until sentencing. D. 137 at 20.

         At sentencing on February 12, 2015, the Court considered the Presentence Report (“PSR”) and the parties' arguments about the agreed upon recommendation. D. 209. The PSR calculated the total offense level as 31 (reflecting a three-level reduction for acceptance of responsibility) and Criminal History Category of VI, given that Fernandez qualified as a career offender. PSR ¶¶ 60, 87; D. 209 at 4-5. Accordingly, the advisory GSR was 188-235 months. PSR ¶ 136, D. 209 at 5; D. 127 at 7. The Court accepted Fernandez's guilty plea and adopted the parties' agreed upon disposition. D. 126; D. 209 at 14. Accordingly, the Court sentenced Fernandez to 120 months imprisonment, 4 years of supervised release and a $300 special assessment. D. 209 at 15; D. 126, 127 (judgment entered on February 19, 2015).

         Fernandez did not appeal his conviction or sentence. He has now filed the Petition, over two and half years after the judgment in this case has become final. D. 189.

         IV. Grounds for Relief

         Fernandez seeks habeas relief on the grounds that his continued custody is a due process violation “because my conviction was obtained by [p]lea of [g]uilty which was not made voluntarily or with the understanding of the nature of the charges and the consequences of the [p]lea.” D. 189 at 7. In support of same, Fernandez indicates that he may or may not have pled guilty if he had known that he could have had a prior state conviction, vacated as it later was on April 19, 2017. D. 189-1 at 3.

         V. ...


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