Waiver in Plea Agreement Barred Collateral Attack on Sentence

This published decision affirms the denial of petitioner’s Section 2255 motion to vacate his sentence. The Court held that petitioner knowingly waived his right to collaterally attack his sentence and that the district court properly denied petitioner’s motion to amend his petition to plead an ineffective- assistance-of-counsel claim.

Tellado pled guilty in 2007 to participating in a conspiracy to distribute drugs. The plea agreement acknowledged that Tellado was a career offender (resulting in a Guidelines range of 188-235 months) and also contained a waiver of the defendant’s right to appeal or collaterally attack his sentence if it did not exceed 188 months. 

Tellado was sentenced in September 2007 as a career offender to 188 months of imprisonment. But a year later the Second Circuit decided United States v. Savage, 542 F.3d 959 (2d Cir. 2008), which suggested that Tellado did not qualify as a “career offender.”

In light of Savage‘s holding, Tellado filed a 2255 motion to vacate or correct his sentence. But the Circuit concluded that the plea agreement barred the motion. Although the district court did not specifically explain at the plea hearing the scope of the right to collaterally attack the sentence and the effect of the waiver of this right, the prosecutor did state on the record that the defendant had agreed to “waive his rights of appeal or to collaterally attack” any sentence of 188 months or less.  The Circuit concluded, “Our review of the record satisfies us … that the district court’s inquiry of Tellado regarding the Government’s explicit description of the full scope of the waiver was adequate to ensure that Tellado was aware of his rights and of what he was waiving.” 

The Court also rejected petitioner’s claim that he should have been allowed to amend his petition to add a claim of ineffective assistance. The Circuit held that Tellado’s counsel could not possibly have been ineffective in 2007 for failing to foresee Savage‘s holding in 2008. Rather, counsel reasonably relied on the law as it stood at the time of sentencing. Thus, amending the petition to add a claim of ineffective assistance would have been futile. 

Commentary: In case you missed it, the upshot of all this is that the Circuit leaves in place a 188-month career offender sentence for someone who apparently is not a career offender.