Ferreira-Rosario v. United States

Background

Victor Ferreira-Rosario, representing himself, filed a petition under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence. He sought to vacate his conviction and 78-month sentence for conspiring to distribute and possess with intent to distribute heroin. He claimed ineffective assistance of counsel, meaning that his lawyer’s performance violated his constitutional right to effective representation.

Ferreira-Rosario raised three principal claims: that counsel did not provide him a Spanish translation of the plea agreement; that counsel promised he would receive a three-year sentence; and that counsel failed to file a notice of appeal challenging his sentence. He had pleaded guilty under an agreement providing for a stipulated Sentencing Guidelines range of 135 to 168 months. The court sentenced him to 78 months, below that range and below the 120-month statutory minimum because the government recommended that he receive the statutory safety-valve benefit.

Court’s Analysis

To establish ineffective assistance, Ferreira-Rosario had to show both that his lawyer’s performance fell below an objectively reasonable standard and that the deficiency prejudiced him.

On the translation claim, the court relied on Ferreira-Rosario’s sworn answers during the plea hearing. He confirmed that he had discussed the plea agreement with his lawyer and that it had been translated into Spanish before he signed it. Because he offered no evidence undermining those statements, the court rejected his later assertion that he had not received a translation.

The court likewise rejected the claim that counsel promised a three-year sentence. During the plea hearing, Ferreira-Rosario stated under oath that no promises had been made about his sentence, that he understood the agreement’s 135-to-168-month Guidelines range, and that the court alone would determine his sentence. The court found those statements more reliable than his unsupported later claim. It also explained that, even if counsel had predicted a lower sentence, such a prediction would not establish the required prejudice, particularly because the court had explained that it alone controlled the sentence.

On the appeal claim, the court explained that counsel may be constitutionally deficient for failing to file an appeal if the defendant expressly instructed counsel to appeal or if counsel unreasonably failed to consult with the defendant about whether to appeal. Ferreira-Rosario did not expressly allege that he instructed counsel to file an appeal. His account suggested that he had discussed an appeal with counsel, but counsel submitted an affidavit stating that no post-sentencing appeal discussion occurred. The court credited counsel’s account where the two accounts conflicted.

The court then concluded that counsel had no constitutional duty to consult about an appeal under the circumstances. Ferreira-Rosario had pleaded guilty, waived appeal of a sentence within or below the agreed Guidelines range, received a sentence substantially below that range, and identified no nonfrivolous basis for challenging the sentence. The court also noted that appellate counsel had reviewed the case and found no meritorious appeal issues.

Disposition

The court denied Ferreira-Rosario’s § 2255 petition. It also declined to issue a certificate of appealability because he had not made a substantial showing that a constitutional right was denied. The court certified that any appeal would not be taken in good faith, directed the clerk to enter judgment, and closed the case.

The opinion contains one inconsistent reference to a 135-to-169-month Guidelines range; elsewhere, including the plea-agreement description, it states that the range was 135 to 168 months.