Pichardo v. United States

Background

Adolfo Pichardo filed a self-represented motion under 28 U.S.C. § 2255, which allows a federal prisoner to ask the sentencing court to vacate, set aside, or correct a sentence. He had pleaded guilty to making a false statement in a passport application, health-care fraud, theft of government benefits, and aggravated identity theft. The plea agreement stated that the identity-theft count carried a mandatory two-year prison term that had to be served consecutively to the sentences on the other counts. It also stated that the total possible sentence was 32 years and that the sentencing guidelines recommendation was not binding on the court.

At the plea hearing, Pichardo said he understood the agreement and its sentencing provisions. The court told him that the sentencing judge could impose a sentence up to the 32-year statutory maximum, including the mandatory consecutive term. Pichardo also said he was very satisfied with his lawyer’s representation. A later presentence report placed him in a higher criminal-history category and calculated a recommended range of 54 to 61 months. At sentencing, Pichardo and the Government did not object to that calculation. The court imposed 30 months on each of the first three counts, to run concurrently, and 24 months on the fourth count, to run consecutively, for a total of 54 months. The Second Circuit later upheld the sentence as neither procedurally nor substantively unreasonable.

Claims and analysis

Pichardo’s only stated complaint was that the 24-month consecutive sentence was unreasonable because he believed he had not pleaded guilty to a consecutive sentence and had expected a lower sentence. The court treated this as a claim that his plea was not knowing and voluntary and as a claim of ineffective assistance of counsel.

Voluntariness claim

The court held that the challenge to the validity of Pichardo’s guilty plea was procedurally defaulted. Procedural default generally prevents a prisoner from raising on collateral review an issue that could have been, but was not, raised on direct appeal. Pichardo had challenged the reasonableness of his sentence in his appeal, but he had not challenged whether his guilty plea was valid. The court found that he had not shown a legally sufficient reason for failing to raise the issue earlier, actual prejudice, or actual innocence. It therefore held that the voluntariness claim was procedurally barred.

Ineffective-assistance claim

The court considered the ineffective-assistance claim on the merits because such a claim may be raised in a § 2255 proceeding even if it was not raised on direct appeal. Under the two-part test for ineffective assistance, a petitioner must show that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance probably affected the result.

The court rejected Pichardo’s claim because the record showed that counsel had informed him about the consequences of the plea. The written agreement identified the mandatory consecutive two-year sentence, stated the total 32-year maximum, and explained that the guidelines recommendation did not bind the court. During the plea hearing, Pichardo said he had read and discussed the agreement, understood its terms, and understood that the sentencing judge could calculate the guidelines independently and impose a sentence above or below the stipulated range up to the statutory maximum. At sentencing, counsel said he had discussed with Pichardo the difference between the agreement’s guidelines calculation and the presentence report, and Pichardo confirmed that he had reviewed the report with counsel and a translator. The court concluded that Pichardo had not shown deficient performance and therefore did not address the test’s second part, prejudice.

Disposition

Judge Lorna G. Schofield denied the petition. The court stated that Pichardo had not made a substantial showing that a federal right had been denied, so it would not issue a certificate of appealability. It also found that any appeal would not be taken in good faith and directed the Clerk of Court to close the matter.