Opinion
Crim. No. 00-79(1) (JRT/FLN), Civ. No. 02-4723 (JRT)
August 5, 2003
Matthew Mark Montag, Federal Correctional Institution, Pekin, Illinois, pro se
Jeffrey S. Paulsen, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, Minnesota, for respondent
MEMORANDUM OPINION AND ORDER
Petitioner Matthew Montag ("Montag") is serving a sentence after pleading guilty to conspiracy to distribute methamphetamine. Montag has filed a petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel. Montag also seeks an evidentiary hearing and appointment of counsel.
BACKGROUND
In March 2000, law enforcement agents learned through an informant that Montag and his girlfriend were large-scale drug dealers. The informant introduced Montag to an undercover officer posing as a methamphetamine dealer. With his girlfriend acting as a go-between, Montag agreed to purchase four pounds of methamphetamine from the undercover officer.
Montag purchased the drugs on credit, initially stating that he only wanted one pound, but then stating that he would take four pounds as long as he could purchase them on credit. After the sale was completed, Montag and his girlfriend were arrested. Montag was charged with one count of Conspiracy to Distribute in Excess of 500 Grams of Methamphetamine in violation of 21 U.S.C. § 846 and § 841(b)(1)(A), and one count of Possession with Intent to Distribute Approximately Four Pounds of Methamphetamine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A) and 18 U.S.C. § 2. On June 16, 2000, pursuant to a plea agreement, Montag pleaded guilty to Count 1 of the indictment, and Count 2 was dropped. On November 9, 2000, Montag moved to amend his plea or in the alternative to withdraw his guilty plea, claiming that he misunderstood the amount of drugs involved in his guilty plea, and that the plea was involuntary because he was mentally impaired. This Court denied the motion on February 26, 2001. See United States v. Montag, Crim. No. 00-79(1), 2001 WL 228428 (D. Minn. Feb. 26, 2001). The Eighth Circuit affirmed this ruling on January 16, 2002. See United States v. Montag, No. 01-2820, 2002 WL 57264 (8th Cir. Jan. 16, 2002).
ANALYSIS
I. Appointment of Counsel
Montag has asked the Court to appoint counsel to assist him in this case. Section 3006A(a)(2)(B) of Title 18 of the United States Code provides that the Court may appoint counsel for any financially eligible person who seeks relief under § 2255 and other habeas corpus statutes if the Court determines that the interests of justice so require. The Court also has the power to appoint counsel for defendant under 28 U.S.C. § 1915, which provides that a "court may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1).
Indigent inmates do not have a constitutional or statutory right to counsel in habeas cases like this one. See Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985); Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). Rather, the appointment of counsel in such cases is a matter committed to the discretion of the trial court. See Mosby v. Mabry, 697 F.2d 213, 214 (8th Cir. 1982); In re Lane, 801 F.2d 1040, 1042 (8th Cir. 1986). Among the factors the Court considers in determining whether to appoint counsel are the factual complexity of the case, the ability of the petitioner to present his claims, the complexity of the legal issues, and whether both the petitioner and the Court would benefit from representation by counsel for both parties. See Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986).
In this case, the Court finds that neither the facts nor the legal issues raised are so complex as to warrant appointment of counsel. The Court finds that the facts and legal issues are clear, and that Montag has shown himself quite capable of presenting his claims and arguing his legal positions. Moreover, the Court cannot conclude that appointment of counsel would substantially benefit both petitioner and the Court. Accordingly, the Court determines that the interests of justice do not require that counsel be appointed for Montag.
II. Section 2255 Petition
Montag's principal argument for § 2255 relief is that he received ineffective assistance of counsel from his trial attorney, Steven Meshbesher ("Meshbesher"). Montag also contends that his guilty plea was not voluntary because Meshbesher coerced him to plead guilty.
Montag's § 2255 petition also alleges that his appellate counsel, Kathleen Menendez, was ineffective for failing to raise the issue of entrapment on appeal. Montag presents no evidence or argument to support this claim, and he does not mention it in his traverse to the government's arguments here. The Court thus presumes that Montag has abandoned this claim.
In order to prevail on a claim of ineffective assistance of counsel, Montag must show that: (1) counsel's performance was deficient, and (2) he was prejudiced by that deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). When evaluating the first prong, the Court must "indulge a strong presumption" that counsel performed as a reasonably competent attorney. Id. at 689. See DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000) ("A defendant faces a heavy burden to establish ineffective assistance of counsel pursuant to section 2255." (citation omitted).) Montag has the burden of showing that counsel's performance "fell below an objective standard of reasonableness," and was not within the range of competence demanded of attorneys in criminal cases. Strickland, 466 U.S. at 689. See Hill v. Lockhart, 474 U.S. 52, 58 (1985); Tollett v. Henderson, 411 U.S. 258, 266 (1973). To establish the second prong insofar as his guilty plea, Montag must show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 370. See Strickland, 466 U.S. at 694.
Montag first argues that Meshbesher was ineffective because he did not pursue a defense of entrapment.
Montag claims that he never dealt in large amounts of drugs, and believes that the informant who arranged the drug deal with undercover officers entrapped him into purchasing the four pounds of methamphetamine. Montag claims that he told Meshbesher about this, but that Meshbesher refused to interview the informant. In an affidavit filed with the Court, Meshbesher states that he did investigate the defense of entrapment, but concluded that it would not be a valid defense because of Montag's "apparent predisposition to purchase and/or sell narcotics." (Govt. Response Attachment D ("Meshbesher Aff.") ¶ 2.) This is evident from transcripts of the tape-recorded drug deal, as well as from voluntary statements that Montag made to law enforcement agents after waiving his Miranda rights. In these statements, Montag admitted that he "sometimes" would buy "pound amounts of coke" at a time, and that he would purchase two pounds of drugs a week from one particular dealer. (Meshbesher Aff. Ex. B at 3-4.) He also stated that it would not be unusual for him to purchase two pounds of drugs at one time. ( Id. at 5.) Montag claims that these statements to law enforcement officers were mere "puffing," and that he exaggerated "to the agents in order to make them think he was a large scale dealer." (Montag Traverse at 3.) Montag claims that in fact, he had never "bought or sold any amount of drugs larger than grams" prior to the transaction for which he was arrested. ( Id.) Montag also claims that the informant was lying when she told law enforcement agents that Montag dealt in large amounts of drugs. It is unclear why Montag wanted to pretend to be a large-scale drug dealer, but his brief suggests that he felt the authorities would be more likely to let him cooperate (presumably in exchange for more lenient treatment) if he was a large scale dealer.
Montag claims that when he was lying about his experience as a drug dealer, he did not know "that this information would be utilized to form the indictment" and would be used against him. This statement is not credible, as Montag clearly received his Miranda rights and waived them; he knew that anything he said could be used against him. ( See Meshbesher Aff. Ex. B. at 1.)
Montag provides no evidence that his statements were lies. The record shows that Montag admitted to dealing in large amounts of drugs, and his present self-serving arguments do not convince the Court otherwise. Therefore, the record corroborates Meshbesher's reason for not interviewing the informant. Meshbesher also notes that he felt an interview was unnecessary because Montag had expressed a desire to cooperate with authorities. The evidence also shows that although Meshbesher did not feel that entrapment served as an adequate defense to guilt, he did act upon Montag's allegations. For sentencing, Meshbesher filed a motion for a downward departure based on Montag's allegation of entrapment. ( See Docket No. 81.) However, the motion was denied.
The Court finds Meshbesher's explanation to be reasonable and credible based upon the record, and thus concludes that his failure to interview the informant did not constitute deficient performance. Furthermore, even if Meshbesher was deficient, Montag has not shown how interviewing the informant would have changed his decision to plead guilty or would have changed the outcome in his case in any way. Montag's petition thus fails on the entrapment issue. Montag next argues that Meshbesher attempted to extort additional legal fees from him and his family.
Montag claims that Meshbesher's initial retainer of $15,000 was supposed to cover all services, including taking the case to trial. Montag contends that Meshbesher later stated that if Montag wanted to go to trial, he would have to pay an additional $20,000. There is no evidence to support Montag's allegations. In fact, the evidence refutes them. The retainer agreement signed by members of Montag's family clearly provides for a retainer fee of $15,000. ( See Meshbesher Aff. Ex. A.) It further provides that "[i]n the event this matter goes to trial we agree to pay the law firm an additional FIVE THOUSAND DOLLARS. . . ." ( Id.) Thus, the agreement provides that if the case went to trial, the total legal fees would come to $20,000, not that Meshbesher asked for an additional $20,000. Moreover, the retainer agreement makes clear that the extra $5,000 for trial services was not a surprise, but was agreed to from the beginning of Meshbesher's service as Montag's attorney. Montag does not dispute the information in the retainer agreement, but merely states that he never saw it until these proceedings. Thus, the evidence clearly refutes Montag's allegations regarding legal fees.
There is also no evidence to support Montag's contention that Meshbesher threatened to withdraw from the case if Montag wanted to go to trial, and "had no intention of taking the case to trial." (§ 2255 Petition at 5B.) Meshbesher states that he intended to prepare for trial, and the contemporaneous evidence supports this statement. Meshbesher filed a number of pre-trial motions on Montag's behalf, but withdrew them in May 2000 when Montag expressed a desire to cooperate with the government and plead guilty. Several months later, when Montag expressed a desire to amend or withdraw his guilty plea, Meshbesher filed the appropriate motion with the Court. On November 8, 2000, one day before filing Montag's motion to amend or withdraw the plea, Meshbesher wrote to Montag's mother that "I am eager to begin Matthew's trial in this case, and if our Motion to Withdraw Plea is granted, I will immediately begin preparing for trial." (Meshbesher Aff. Ex. I at 2.) Of course, the motion was denied, and it became clear t hat no trial would be held.
Montag also alleges that Meshbesher never explained that he would be eligible for sentence enhancement as a career criminal, or that he could receive a sentence of more than ten years imprisonment. Meshbesher denies this allegation, and states that he informed Montag "on multiple occasions before entering the plea of guilty" that he could be sentenced as a career offender. (Meshbesher Aff. ¶ 5.) Meshbesher also states that he informed Montag of all the ramifications of the guilty plea, including that "he might receive a sentence of 10 years or less, but that he might also receive a longer sentence due to his criminal history." ( Id.) Montag provides no evidence to support his allegations, and the record demonstrates that he was informed and aware of the consequences of his plea. Specifically, the plea agreement that Montag signed provided that the count to which he pleaded guilty carries a mandatory minimum of 10 years imprisonment. (Meshbesher Aff. Ex. H. ("Plea Agreement") at ¶¶ 2(A), 4.) The plea agreement also made clear that it was possible Montag could be sentenced as a career offender, depending on his criminal history. ( Id. at ¶¶ 12-13.) Thus, the record does not support Montag's allegations in this regard.
Montag next contends that Meshbesher performed deficiently by failing to inform him that the indictment was "faulty" because it did not "state the amount of methamphetamine allegedly obtained from the agents." (§ 2255 Petition at 5B.) The record does not support this allegation, because the indictment correctly stated the amount of methamphetamine. Montag pleaded guilty to Count 1, which alleged conspiracy to distribute in excess of 500 grams of a substance or mixture containing methamphetamine. Montag was arrested after having purchased four pounds of methamphetamine, which is far more than 500 grams. Therefore, Montag produces no evidence to support his claim that the indictment was "faulty."
Finally, Montag alleges that Meshbesher informed him that he would receive a downward sentencing departure for cooperating with the government, but that Meshbesher never filed a motion for such a departure. This allegation is also without foundation. A motion for a downward departure based on substantial assistance to the government may only be made by the government. See U.S.S.G. § 5K1.1. The plea agreement also provides that the government has discretion whether to decide whether Montag rendered substantial assistance. (Plea Agreement at ¶ 5.) The government ultimately determined not to file such a motion. Meshbesher cannot have performed deficiently by failing to file a motion that may only be filed by the government.
At sentencing, the Court explained to Montag that the decision to move for a downward departure based on substantial assistance belongs to the government:
THE COURT: That's fine. The decision on whether to make a motion to the Court for a downward departure based on substantial assistance, which is a 5K1.1 motion, is one that the government gets to make. It's their call.
DEFENDANT MONTAG: Right.
(Sentencing Tr. at 19.)
Based on the above discussion, the Court concludes that Montag has provided no evidence to support any of his allegations that Meshbesher's performance was deficient or that Meshbesher coerced the guilty plea. Because Montag cannot meet his burden of showing that Meshbesher's performance "fell below an objective standard of reasonableness," the Court finds that his claims of ineffective assistance of counsel against Meshbesher must fail. See Strickland, 466 U.S. at 689. The Court further finds that the arguments and the record conclusively show that Montag is entitled to no relief, so an evidentiary hearing is not necessary. See 28 U.S.C. § 2255. Montag's motion for a hearing is therefore denied, and his § 2255 petition must be dismissed.
III. Appealability
For purposes of appeal under 28 U.S.C. § 2253, the Court finds that it is unlikely that some other court would decide the issues raised in Montag's petition differently. The Court also concludes that Montag has not made a "substantial showing of the denial of a constitutional right," as is required under the appeal statute for the issuance of a certificate of appealability. See 28 U.S.C. § 2253(c) (2).
ORDER
Based on the foregoing, all the records, files, and proceedings herein, IT IS HEREBY ORDERED that:
1. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 [Docket No. 112] is DISMISSED WITH PREJUDICE.
2. Petitioner's Motion for Appointment of Counsel [Docket No. 115] is DENIED.
3. Petitioner's Motion for Evidentiary Hearing [Docket No. 116] is DENIED.
4. The Court does not certify the issues raised in petitioner's motion for appeal under 28 U.S.C. § 2253(c)(2).