USA v. Montalvo et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________
EFRAIN HIDALGO, a/k/a CHEKO,
Petitioner,
17-CV-0784-A
v. 	11-CR-0151-A
11-CR-0366-A
UNITED STATES OF AMERICA, 	DECISION AND ORDER
Respondent.
________________________________
Petitioner Efrain Hidalgo seeks relief pursuant to 28 U.S.C. § 2255. 	For the
reasons stated below, Petitioner’s motion is denied.
DISCUSSION
On 	February 26, 	2015, 	Petitioner 	pled 	guilty to 	one 	count of 	racketeering
conspiracy, in violation of 18 U.S.C. § 1962(d); and one count of discharging a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). The Court
sentenced Petitioner to 210 months’ imprisonment on his racketeering conspiracy
conviction and a consecutive 120-month sentence on his § 924(c) conviction, for an
aggregate sentence of 	330 months’ imprisonment. 	Petitioner did not appeal his
conviction or sentence.
Relying on the Supreme Court’s decision in Johnson v. United States, 135 S. Ct.
2551 (2015), Petitioner now seeks to vacate his § 924(c) conviction pursuant to 28 U.S.C.
§ 2255. See Docket No. 333. Johnson held that the residual clause in the Armed Career
Criminal 	Act’s 	(ACCA), 	18 	U.S.C. 	§ 	924(e), 	definition 	of 	“violent 	felony” 	is
unconstitutionally vague. 	Johnson, 135 S. Ct. at 2563. 	Petitioner argues that the
definition of “crime of violence” in § 924(c) is similar to the ACCA’s definition of “violent
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felony” and must, therefore, also be declared unconstitutionally vague. 	Compare 18
U.S.C. § 924(c)(3)(B) (residual clause in definition of “crime of violence”), with id.
§ 924(e)(2)(B)(ii) (residual clause in definition of “violent felony”).
DISCUSSION
In his plea agreement, Petitioner “knowingly waive[d] the right to . . . collaterally
attack any component of a sentence imposed by the Court which falls within or is less
than” an aggregate sentence of life plus ten years. 	Docket No. 239 (Plea Agmt) ¶ 30.
Petitioner gave up this right knowing that he was “waiving the right to challenge the
sentence in the event that in the future [he] becomes aware of previously unknown facts
or a change in the law which [he] believes would justify a decrease in [his] sentence.”
Plea Agree. ¶ 31. As noted, the Court sentenced Petitioner to 330 months’ imprisonment.
Petitioner’s § 2255 motion therefore falls within the plea agreement’s collateral-attack
waiver.
A collateral-attack waiver is “‘presumpti[vely] . . . enforceabl[e].” Sanford v. United
States, 841 F.3d 578, 580 (2d Cir. 2016) (quoting United States v. Gomez-Perez, 215
F.3d 315, 319 (2d. Cir 2000)) (brackets omitted). 	A court may disregard a collateral-
attack waiver in only a few narrow circumstances, “‘such as (1) when the waiver was not
made knowingly, voluntarily, and competently, (2) when the sentence was imposed based
on constitutionally impermissible factors, such as ethnic, racial or other prohibited biases,
(3) when the government breached the plea agreement, or (4) when the sentencing court
failed to enunciate any rationale for the [petitioner’s] sentence, thus amounting to an
abdication of the judicial responsibility subject to mandamus.’” Id.1
1 It is well settled that that, “[e]ven if the plain language of the plea agreement” prohibits a collateral attack,
a court should “not enforce . . . a waiver” when a petitioner “is challenging the constitutionality of the process
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Even when read in the charitable light to which pro se pleadings are entitled,
neither Petitioner’s pleadings nor the record in this case suggest that the collateral-attack
waiver in Petitioner’s plea agreement is unenforceable. The only conceivable argument
for disregarding the waiver—that the waiver “was not made knowingly, voluntarily, and
competently”—has no support in the record.
Petitioner’s 	plea 	hearing, 	which 	took 	place 	over 	two 	consecutive 	days,
demonstrated that Petitioner’s plea was knowing and voluntary. 	At his plea hearing,
Petitioner stated, under oath, that he was satisfied with his attorney’s “advice and
counsel” and that his attorney had “done his best . . . advising [Petitioner] . . . to lead [him]
in the right direction.” Docket No. 349 at 4:6 – 5:5. Petitioner stated that he understood
the lengthy factual basis for his plea, as well as the detailed Sentencing Guidelines
calculations applicable in Petitioner’s case. Petitioner stated that he understood the plea
agreement’s collateral-attack waiver (id. Tr. 30:9 – 31:13), and he repeatedly told the
Court that he had no questions about the plea agreement’s terms. 	Docket No. 349 Tr.
3:15-17; Docket No. 350 Tr. 1:16; 7:11-16; 10:10-11; 22:6-7; 22:13-14. 	After a lengthy
colloquy, and based on the Court’s observations, the Court found that Petitioner was “very
intelligent, appears to be alert, focused, attentive, clearly understands everything [the
Court was] saying,” and “[d]oes not appear to be under the influence of any drug, medicine
or alcohol.” 	Docket No. 350 Tr. 16:2-6. 	Finally, Petitioner affirmed his understanding
that, by entering a plea of guilty, he would be waiving his right to trial, “as well as all the
by which he waived” his collateral-attack rights. United States v. Hernandez, 242 F.3d 110, 113 (2d Cir.
2001) (addressing waiver of appellate rights). Petitioner’s § 2255 motion does not suggest that he received
ineffective assistance of counsel when he entered into his plea agreement.
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other rights we talked about.” 	Id. Tr. 21:21 – 22:1. 	Petitioner then pled guilty, and the
Court found that Petitioner’s “plea of guilty [was] knowing and voluntary.” Id. Tr. 23:5-11.
Petitioner’s statements during the “grave and solemn act” of pleading guilty, United
States v. Hyde, 520 U.S. 670, 677 (1997), demonstrate that his plea was knowing and
voluntary. There is, therefore, no basis to disregard the plea agreement’s collateral-attack
waiver, and the Court will not do so.2
CONCLUSION
For the reasons stated above, Petitioner’s § 2255 motion (Docket No. 333) is
denied. 	Pursuant to 28 U.S.C. § 2253(c)(1) and Rule 11(a) of the Rules Governing
Section 2255 Proceedings, the Court declines to issue a certificate of appealability
because Petitioner has not made a substantial showing of the denial of a constitutional
right. Finally, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from
this Decision and Order would not be taken in good faith. Thus, leave to appeal in forma
pauperis is denied. 	Petitioner is nonetheless advised that, should he decide to appeal
this Decision and Order, “Federal Rule of Appellate Procedure 4(a) governs the time to
appeal,” and “[a] timely notice of appeal must be filed even” though the Court declined to
issue a certificate of appealability. Section 2255 Rule 11(b). The Clerk of the Court shall
take all steps necessary to close the parallel civil action, 17-CV-0784-A.
SO ORDERED.
Dated: August 8, 2018 	___s/Richard J. Arcara___________
Buffalo, New York 	HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
2 Because Petitioner’s § 2255 motion is barred by the collateral-attack waiver, the Court need not address
the merits of Petitioner’s motion.
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