United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
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.
Standard of Review
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.
Relevant Factual and Procedural Background
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.
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.
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.
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,
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.
Grounds for Relief
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.