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considering merits of § 2255 petition even though it violated clear terms of plea agreement
Summary of this case from Delrosario v. U.S.Opinion
00 Cr. 105 (RPP), 04 Civ. 2716 (RPP).
January 27, 2005
William Cole, Reg. No. 48770-054, Lisbon, OH, for Pro Se Petitioner.
David N. Kelly, United States Attorney, New York, NY, Counsel for Respondent.
OPINION ORDER
The Petitioner, William Cole ("Cole"), presently in custody and subject to a sentence imposed by this Court, seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The petition is denied for the reasons set forth below.
BACKGROUND
On April 8, 2000, a grand jury returned Indictment 00 Cr. 105, which charged Cole and 13 co-defendants with conspiracy to distribute and possess with intent to distribute five kilograms and more of cocaine and 50 grams and more of "crack," in violation of 21 U.S.C. § 846. On September 22, 2000, the Government filed a two-count Superseding Information, S8 00 Cr. 105, against Cole. Count One of the Information charged Cole with a violation of 21 U.S.C. § 843(b), in connection with his use of a telephone in committing the felony of conspiring to distribute "crack" cocaine. Count Two charged Cole with a violation of 18 U.S.C. §§ 924(c) and 2, in connection with his possession of a firearm that he stored in his apartment in furtherance of the narcotics conspiracy.
On September 22, 2000 — the same day the Government filed the Superseding Information — Cole waived indictment and pled guilty to both counts in the Superseding Information pursuant to a plea agreement. In the plea agreement, Cole stipulated to a base offense level of 38, a two-level adjustment for acceptance of responsibility, and a two-level enhancement for possession of a firearm in connection with the offense. (Plea Agreement ("Plea Agmt.") dated Sept. 22, 2000, at 2, attached as Ex. C to Government Opposition Letter ("Gov. Opp. Ltr.") dated Oct. 18, 2004.) Cole and the Government agreed that under the United States Sentencing Guidelines Cole had a Criminal History Category of I, and that his Stipulated Guidelines Sentence was 108 months. (Id. at 3.) In addition, the Government promised to refrain from further prosecuting Cole for his actions charged in both counts of the Superseding Information and Count One of the original Indictment, and to dismiss Count One of the original Indictment. (Id. at 1-2.) In return, Cole agreed that he would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the Stipulated Guidelines Sentence" of 108 months. (Id. at 4.)
In accordance with the plea agreement, this Court sentenced Cole principally to 108 months in prison on January 4, 2001. Shortly thereafter, and in violation of the terms of his plea agreement, Cole appealed his sentence to the Second Circuit. Cole presented one argument on appeal: that his factual allocution during his guilty plea failed to establish the elements of the 18 U.S.C. § 924(c) ("Section 924(c)") charge. (Cole's Appellate Brief ("Cole's App. Br.") at 8-15, attached as Ex. B to Gov. Opp. Ltr.) The Second Circuit heard argument on Cole's appeal on December 18, 2002 and affirmed Cole's conviction and sentence in a summary order dated December 23, 2002. See United States v. Daniels (Cole), 53 Fed. Appx. 591 (2d Cir. 2002). According to the court, after reviewing Cole's testimony at sentencing, "we have no doubt that it reveals both knowing possession and the requisite nexus. [Cole's] conduct falls within the charge to which he pled guilty." Id. at 592. Cole did not seek a writ of certiorari from the Supreme Court.
Cole, proceeding pro se, has petitioned this Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Cole's petition was received by the Pro Se Office of this district on February 25, 2004 and filed on April 9, 2004. In his petition, Cole asserts three separate grounds for relief. First, Cole argues that there was insufficient proof to establish the elements of a charge under 18 U.S.C. § 924(c), as demonstrated by his guilty plea allocution and this Court's statement at sentencing that there was "no evidence that [Cole] ever used the firearm himself or displayed it in connection with the conspiracy." (Cole's Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Cole's Pet.") at 5.) Second, Cole argues that he was deprived of the effective assistance of counsel because his lawyer failed to object to the Indictment and failed to object at the plea hearing, and because his appellate lawyer failed to "show the Appellate Court" this Court's statement at sentencing regarding the lack of evidence that Cole used the firearm (id.). And third, Cole argues that his Fifth and Sixth Amendment rights were violated because the Section 924(c) charge for which he was convicted was not charged in the original indictment. (Id. at 6.)
Cole first raised this ineffective assistance of counsel claim in his reply memorandum. (Cole's Reply Memorandum ("Cole's Reply Mem.") at 6-10.) Although Cole did not raise the claim in his initial petition, he will not be precluded from incorporating it into the petition in view of his status as a pro se litigant.
The Government filed a letter in opposition to Cole's petition on October 18, 2004, in which it contends that Cole's petition is frivolous and should be denied without a hearing. The matter became fully submitted on November 17, 2004, when Cole submitted a reply memorandum to the Government's opposition.
DISCUSSION
I. Standard of Review
In reviewing the instant petition, this Court is mindful that Cole has proceeded pro se in submitting his petition and reply papers. For this reason, Cole's submissions will be "liberally construed in his favor," Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)), and read "to raise the strongest arguments that they suggest,"Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citation omitted).
Section 2255 of Title 28 of the United States Code ("Section 2255") provides, in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.28 U.S.C. § 2255. In considering a petition brought pursuant to Section 2255, "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." Id.
"It is well established that a § 2255 petition cannot be used to 'relitigate questions which were raised and considered on direct appeal.'" United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (quoting Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992)). A petitioner can overcome this procedural bar — and a court may consider an issue that was dealt with on direct appeal — "only where there has been an intervening change in the law and the new law would have exonerated a defendant had it been in force before the conviction was affirmed on direct appeal."Chin v. United States, 622 F.2d 1090, 1092 (2d Cir. 1980).
If, on the other hand, a habeas petitioner asserts a claim that he did not raise on direct review, that claim will be considered procedurally defaulted and thus ineligible for review in a Section 2255 proceeding unless the petitioner "can first demonstrate either 'cause' [for the default] and actual 'prejudice,' or that he is 'actually innocent.'" Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted). To satisfy the "cause" requirement, the petitioner must show circumstances "external to the petitioner, something that cannot be fairly attributed to him." Coleman v. Thompson, 501 U.S. 722, 753 (1991). Attorney ignorance or error is not "cause" for a procedural default unless the error rises to the level of constitutional ineffectiveness. Id. at 752-55. To establish "prejudice," the petitioner must establish that the errors "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Rodriguez v. Mitchell, 252 F.3d 191, 203 (2d Cir. 2001) (citation omitted). Finally, to establish actual innocence, the petitioner must demonstrate that "in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousely, 523 U.S. at 623 (internal quotation marks and citations omitted). The rule of procedural default does not extend to claims of ineffective assistance of counsel, which "may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003).
II. Cole's Waiver of his Right to Seek Relief Pursuant to Section 2255 was Valid and Enforceable
This Court sentenced Cole after he entered into a plea agreement in which he expressly waived his right to "litigate under Title 28, United States Code, Section 2255, any sentence within or below the Stipulated Guidelines Sentence" of 108 months. (Plea Agmt. at 4.) Because Cole's Section 2255 petition explicitly violates the terms of the plea agreement he signed, the petition must be dismissed.
It is well established that a defendant's knowing and voluntary waiver of his right to appeal or collaterally attack a sentence within a stipulated Sentencing Guidelines range is enforceable.See United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998) (citations omitted). As the Second Circuit has stated, permitting a defendant who secured the benefits of a valid and enforceable plea agreement "to escape the fairly bargained — for consequence of [his] agreement with the government would render the plea bargaining process and the resulting agreement meaningless." United States v. Monzon, 359 F.3d 110, 117 (2d Cir. 2004) (internal quotation marks and citation omitted). However, a court will not enforce a waiver of appellate rights "unless the record clearly demonstrates that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary." Id. at 116 (internal quotation marks omitted) (quoting United States v. Ready, 82 F.3d 551, 557 (2d Cir. 1996)); see also United States v. Rosa, 123 F.3d 94, 101 (2d Cir. 1997) (finding defendant's waiver of right to appeal valid due to absence of unconstitutional or unfair circumstances that could call into question the legitimacy of the plea agreement). Consequently, a defendant's decision to waive his right to appeal is not enforceable when "the waiver was the result of ineffective assistance of counsel." Monzon, 359 F.3d at 118-19.
This Court accepted Cole's guilty plea at a hearing on September 22, 2000. Prior to accepting the plea, the Court placed Cole under oath and ascertained that he was competent to enter a plea. (Transcript of Sept. 22, 2000 Plea Hearing ("Plea Tr.") at 5-6.) The Court then determined that Cole had sufficient time to discuss the case with his attorney, and that he was satisfied with his representation. (Id. at 6.) In response to the Court's questioning, Cole confirmed that he had read and discussed the plea agreement with his attorney, and that his attorney had answered any questions he had about the agreement. (Id. 6-7.) Cole also acknowledged that he fully understood the plea agreement, and that he entered into it voluntarily. (Id. at 7.)
In view of his statements at the plea hearing, the Court concludes that Cole knowingly and voluntarily waived his right to collaterally attack his sentence under Section 2255. It is true that Cole has raised ineffective assistance of counsel claims in the instant petition, but he does not argue — nor does the record suggest — that his counsel's alleged ineffectiveness affected his decision to enter into the plea agreement. Accordingly, the provision of Cole's plea agreement in which he waives his right to litigate under Section 2255 permits the Court to dismiss the instant petition.
III. Cole's Claims are Procedurally Barred or Without Merit
Even if Cole's petition did not explicitly violate the terms of his plea agreement, each of the arguments he makes in his Section 2255 petition would nonetheless fail. These three arguments are analyzed below.
A. Insufficient Evidence Claim
Cole argues first that "[t]he elements of [ 18 U.S.C. § 924(c)] were not established by [Cole's] guilty plea." (Cole's Pet. at 5.) To support this argument, Cole states: that his plea allocution did not provide a sufficient factual basis for the plea; that according to New York Police Department reports, the firearm that the police found was not in Cole's apartment; and that the Court made the following remarks at the sentencing hearing: "In view of the fact that although [Cole] possessed a firearm that was used by others in the conspiracy, there is no evidence that he ever used the firearm himself or displayed it in connection with the conspiracy." (Id. at 5-6.)
The merits of this argument need not be reached because it is identical to the one Cole presented to the Second Circuit. On appeal, Cole's sole argument was that "[t]here was insufficient factual basis for [his] guilty plea to the charge of using, carrying, [and] possessing a firearm in violation of 18 U.S.C. § 924(c)." (Cole's App. Br. at 8-15.) Furthermore, Cole does not suggest that his insufficient evidence argument should be heard now due to an intervening change in the law. Accordingly, Cole's claim that his guilty plea did not provide sufficient evidence to support his conviction for violating Section 924(c) is procedurally barred.
Even if this Court were to reach the merits of Cole's insufficient evidence claim, Cole has provided no reason to reject the Second Circuit's conclusion that Cole's testimony at sentencing revealed both knowing possession and the required nexus to support the 18 U.S.C. § 924(c) charge to which he pled guilty.
B. Ineffective Assistance of Counsel Claims
Cole claims next that he was deprived of his constitutional right to effective assistance of counsel because: (1) his trial lawyer failed to object to the Indictment and failed to object at the plea hearing (Cole's Reply Mem. at 6-10); and (2) his attorney on appeal "did not show the Appellate Court that the [District] Judge clearly has stated . . . that there is no evidence that the defendant used the gun himself" (Cole's Pet. at 5). Cole did not raise any ineffective assistance of counsel claims on direct appeal; however, the rules of procedural default do not extend to claims of ineffective assistance of counsel, which "may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised [them] on direct appeal." Massaro, 538 U.S. at 504.
As stated in note 1, supra, even though Cole raised this ineffective assistance of counsel claim for the first time in his reply memorandum, in view of Cole's pro se status the Court will not preclude him from incorporating the claim into his petition.
1. Ineffective Assistance of Counsel Prior to Sentencing
In his reply papers, Cole claims that his counsel at his plea hearing and sentencing, Oliver A. Smith, Esq., rendered ineffective assistance because he "fail[ed] to object to the indictment" and "fail[ed] to object when the Government never proved at the plea hearing that Petitioner possessed the firearm charged in the indictment." (Cole's Reply Mem. at 8.)
Cole discusses this argument in a section entitled, "Petitioner Received Ineffective Assistant [sic] of Counsel When Counsel Failed to Investigate the Record in this Case Pertaining to 924(c)." (Cole's Reply Mem. at 6.) However, Cole's argument focuses entirely on Mr. Smith's failure to object to the Section 924(c) charge in the indictment and at the plea hearing, rather than a "failure to investigate."
The benchmark for judging an ineffective assistance of counsel claim is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). To obtain reversal of a conviction due to ineffective assistance of counsel, a petitioner must demonstrate (1) that his counsel's performance was deficient; and (2) that the deficient performance prejudiced the appeal. See id. at 687. To satisfy the first prong of the Strickland test, a petitioner must show that his attorney's performance "fell below an objective standard of reasonableness" given the facts and circumstances of his case.Id. at 688. Under the second prong, the petitioner must "show that counsel's errors were so serious as to deprive the defendant of a fair trial," and that "but for" the claimed errors of counsel, the result would have been different. Id. at 687, 694.
Cole's ineffective assistance of counsel claim cannot satisfy the Strickland test because it reflects a misunderstanding of the elements of a Section 924(c) offense. To be convicted under Section 924(c), it is sufficient for the Government to establish that the defendant knowingly (1) possessed a firearm (2) in furtherance of a drug crime. See United States v. Finley, 245 F.3d 199, 203 (2d Cir. 2001). Thus, Mr. Smith did not act in an objectively unreasonable manner when he failed to object to the Section 924(c) charge on the grounds that there was no evidence that Cole "used" or "carried" the firearm. For the same reason, Cole did not suffer prejudice from Mr. Smith's failure to object because such objections would have had no effect on Cole's conviction or sentence. Accordingly, Cole's ineffective assistance of counsel claim fails as it pertains to Mr. Smith.
2. Ineffective Assistance of Appellate Counsel
Cole also claims that his appellate counsel, B. Alan Seidler, Esq., was ineffective because he "did not show the Appellate Court that the [District] Judge clearly has stated . . . that there is no evidence that [Cole] used the gun himself." (Cole's Pet. at 5.) However, Cole has failed to satisfy his burden of proof for this claim and, therefore, it must fail.
The two-prong Strickland test applies to ineffective assistance of appellate counsel claims as well as ineffective assistance of trial counsel claims. See Smith v. Robbins, 528 U.S. 259, 285 (2000). To succeed on an ineffective assistance of appellate counsel claim, a petitioner must prove that (1) appellate counsel acted objectively unreasonably in failing to raise a particular issue on appeal; and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful. See McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999); see also Frederick v. Warden, 308 F.3d 192, 197 (2d Cir. 2002) (applyingStrickland test to determine if appellant received ineffective assistance of appellate counsel).
In the brief Mr. Seidler submitted to the Second Circuit on Cole's behalf, he argued that "[t]here was an insufficient factual basis for [Cole's] guilty plea to the charge of using, carrying, [and] possessing a firearm in violation of 18 U.S.C. § 924(c)." (Cole's App. Br. at 8.) To support this argument, the brief quotes approximately three pages of the transcript of Cole's plea allocution and then concludes:
In the instant matter, appellant did not disclose or mention the gun as required by Bailey. Appellant did not plead guilty to a narcotics offense, and did not admit to participating in a narcotics offense. Appellant did not carry the firearm, or possess the firearm in connection with a narcotics offense. Appellant only admitted in Court to holding the gun in his apartment for others to borrow from time to time. Appellant did not perform some act that directly facilitated or encouraged the use or carrying of a firearm. Appellant only possessed and stored the weapon. Appellant performed no affirmative act relating to the firearm to establish his guilt under an aiding and abetting theory.
(Cole's App. Br. at 14 (citations omitted).)
Although Mr. Seidler argued that there was insufficient evidence for Cole's Section 924(c) conviction, Cole is correct in noting that Mr. Seidler did not refer specifically to this Court's comments about Cole and the gun. However, simply pointing out this omission does not satisfy the first prong of theStrickland test. Instead, Cole must demonstrate that Mr. Seidler "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) (citation omitted). Turning to the second prong of the Strickland analysis, even if Mr. Seidler did "show the Appellate Court" this Court's remarks about the firearm, the outcome on appeal would not have been different. As noted above, to be guilty of violating Section 924(c), a defendant need not actually "use" or "carry" the firearm himself; rather, a defendant may be convicted if he "possessed" the firearm "in furtherance" of a drug-related crime. Accordingly, the Court's remarks about the firearm are not relevant to whether Cole violated Section 924(c), and Cole cannot prove that absent Mr. Seidler's failure to mention those remarks there was a reasonable probability that his appeal would have been successful.
C. Fifth and Sixth Amendment Claim
Cole's final argument is that his Fifth and Sixth Amendment rights were violated because his indictment was "judicially amended," i.e., because the Section 924(c) charge for which he was convicted was not charged in the original indictment. (Cole's Pet. at 6.) Cole did not present this argument on appeal to the Second Circuit and he makes no attempt to demonstrate "cause" and "prejudice" or "actual innocence" in order to overcome the procedural default. This claim is thus procedurally defaulted and habeas review is unavailable.
Even if this Court reached the merits of Cole's Fifth and Sixth Amendment claims, his argument would nonetheless fail. The transcript of Cole's September 22, 2000 plea hearing demonstrates that, prior to pleading guilty, Cole knowingly, intelligently, and voluntarily waived indictment and consented to the filing of the Superseding Information, which included the Section 924(c) charge. (Plea Tr. at 2-5.)
CONCLUSION
For the reasons stated above, Cole's petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is hereby dismissed.
IT IS SO ORDERED.