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refusing to find ineffective assistance of counsel where defendant waived the right to appeal in exchange for numerous tangible benefits pursuant to a plea agreement negotiated by counsel
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98 CR 1320(sas); 01 Civ. 3966 (SAS)
December 17, 2001
Rafael Rojas, White Deer, Pennsylvania, Pro Se.
Robert C. Juman, United States District Attorney's Office, New York, N.Y. Attorney for the Goverment.
OPINION AND ORDER
I. INTRODUCTION
Petitioner Raphael Rojas, proceeding pro se, brings this section 2255 petition attacking his 180 month sentence on Counts 1 and 3 of Indictment S3 98 CR 1320 (SAS) (the "Indictment"). In doing so, petitioner advances two principle grounds: (1) that his plea was involuntary and not knowingly and intelligently made, and (2) that he received ineffective assistance of counsel in entering the plea. Petitioner's trial counsel was allegedly ineffective in a variety of ways including the failure on her part to: advise petitioner of the nature of the charges to which he was pleading; advise petitioner of the consequences of the plea agreement and its provision waiving the right to appeal or otherwise litigate under section 2255; and "raise the issue of the guilty plea colloquy." See Brief in Support of Motion to Vacate Sentence ("Pet. Mem.") at 2. For the following reasons, the petition is dismissed.
Petitioner also claims that his trial counsel was ineffective for failing to recognize that there was insufficient evidence for a firearms conviction. Because I find petitioner's Plea Agreement to be constitutionally valid, see infra Part III.B, this claim is summarily dismissed. See United States v. Hernandez, 242 F.3d 110, 114 (2d Cir. 2001) ("If the constitutionality of that [plea agreement] process passes muster, the plea agreement's waiver would bar any consideration by the appellate court of issues that fall within the scope of that waiver.")
II. PROCEDURAL BACKGROUND
A. The Indictment
A five count Indictment was returned on May 18, 1999, after Rojas and four co-defendants attempted to rob a fictitious heroin courier of between six and eight kilograms of heroin. See Presentence Report ("PSR") at ¶¶ 15-19. Count One of the Indictment charged Rojas with conspiracy to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Count Two charged Rojas with conspiracy to commit robbery in violation of 18 U.S.C. § 1951. Count Three charged Rojas with the use and carrying of a firearm in connection with the crimes charged in Counts 1 and 2. Count Four of the Indictment charged Rojas with participation in a separate robbery carried out on October 13, 1998. Count Five charged Rojas with the use and carrying of firearms during that October 13 robbery.
B. The Plea Agreement
On June 15, 1999, Rojas and the Government entered into a Plea Agreement dated June 10, 1999, in which Rojas agreed to plead guilty to Counts One and Three of the Indictment. See Plea Agreement, Ex. A to The Government's Memorandum of Law in Opposition to Petitioner's Motion Pursuant to 28 U.S.C. § 2555 ("Gov't Mem."), at 1. The Plea Agreement describes the two substantive offenses and the consequences of a plea to those offenses, including minimum and maximum sentences, terms of supervised release, and fines. See id. Rojas stipulated that his offense level, after adjustment for acceptance of responsibility, was 29, see id. at 2, and that his Criminal History Category was IV. See id. at 3. At offense level 29, Criminal History Category IV, the sentencing ranges was 121 to 151 months in custody. However, as Rojas also agreed that 18 U.S.C. § 924(c) required a mandatory consecutive sentence of 60 months imprisonment on the firearms offense, the effective guideline range was 181 to 211 months in custody. See Id.
As consideration for Rojas' guilty plea, the Government agreed to dismiss Counts Two, Four and Five of the Indictment. See id. at 2. The Government also agreed it would not further prosecute Rojas for his participation in two other conspiracies to rob purported narcotics traffickers. See id. Rojas and the Government also agreed not to seek any departures or adjustments to the stipulated range of 181 to 211 months imprisonment. See id. at 3. Finally, Rojas agreed that he "will neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the Stipulated Sentencing Guidelines Range." See id. at 4 (emphasis added).
C. The First Plea
On June 15, 1999, Rojas pled guilty to Counts One and Three before Magistrate Judge Sharon E. Grubin. See June 15, 1999 Plea Transcript ("6/15 Tr."), Ex. B to Gov't Mem., at 2. Magistrate Judge Grubin specifically confirmed that Rojas understood the charges against him and that he had a sufficient opportunity to speak to his attorney, Lisa Pelosi, about the nature of the charges and the defenses to them that he might have. See 6/15 Tr. at 2. Magistrate Judge Grubin then explained the substantive elements of Counts One and Three. See id. at 3. Rojas was then told that the penalty for Count I was a mandatory ten years in prison with a maximum of life in prison. See id. at 4. Rojas was also informed that the firearms offense listed in Count Three carried an additional 60 month consecutive term of imprisonment. See id. at 5. Magistrate Grubin specifically explained that by pleading guilty to Counts One and Three, Rojas would face a minimum sentence of 15 years imprisonment as the 60 month sentence on the gun charge would be imposed consecutive to the 10 year statutory minimum on the drug charge. See Id. at 8.
Magistrate Grubin then advised Rojas repeatedly that once he entered his guilty plea, he would have no right of appeal. See id. at 7 ("Do you understand that you have no right to appeal your guilty plea, once you enter it today, that's it?"); at 9 ("You will not get a trial and you won't have any right to appeal from this."). Rojas confirmed that he understood and that he still wanted to plead guilty. See id. at 9. Rojas then explained, in his own words, what he did that made him guilty of the instant charges. See id. at 10-13.
Magistrate Grubin confirmed that Rojas entered into the Plea Agreement, that he read it and discussed it with his counsel with the help of an interpreter, and that he understood all of its terms. See Id. at 14. Ms. Pelosi also confirmed that, with respect to the plea agreement, she "read it word for word and answered any questions [petitioner] might have had." Id. Magistrate Grubin then recommended acceptance of the plea by this Court. See Id. at 15.
D. The Intervening Conferences
The parties appeared for sentencing before me on October 22, 1999. See October 22, 1999 Sentencing Transcript ("10/22 Tr."), Ex. C to Gov't Mem., at 1. The sentencing did not proceed, however, as I expressed concern regarding the amount of drugs Rojas intended to distribute. See 10/22 Tr. at 4. I noted that during the plea allocution, Rojas never allocuted to drug quantity or ever mentioned that he intended to distribute any particular quantity of drugs. See id. at 5. Accordingly, I expressed my intention to set the base offense level at 12, corresponding to less than five grams of heroin. See id. At offense level 12, Criminal History Category III, the applicable sentencing range was zero to six months in custody. Adding the mandatory 60 month consecutive sentence on the gun count, I indicated that I would apply a sentencing range of 60 to 76 months imprisonment. See id. at 7.
The discrepancy in Criminal History Category resulted from the amount of time served on one of Rojas' prior convictions. The Plea Agreement stipulated that Rojas had served over 30 days imprisonment for a June 10, 1998 conviction while the PSR determined that Rojas had spent only one day in prison for that offense. Thus, one rather than two criminal history points was appropriately assigned to that conviction, resulting in a Criminal History Category of III instead of IV.
Recognizing that this represented a significant change from the guideline range stipulated to in the Plea Agreement, I adjourned the sentencing to permit the Government to establish a factual record supporting the quantity of heroin agreed to in the Plea Agreement. See id. at 10. The Government did so in a letter dated October 29, 1999, see ex. D to Gov't Mem., which cited two cases for the proposition that the quantity used to determine the base offense level for a drug conspiracy count is the amount of drugs the defendant intended to steal. A conference was then scheduled to discuss Rojas' sentence in light of the Government's letter.
See United States v. Caban, 173 F.3d 89 (2d Cir. 1999) and United States v. Howard, 998 F.2d 42 (2d Cir. 1993).
At a conference held on February 14, 2000, defendant expressed his understanding that he was to receive 76 months on both Counts. See February 14, 2000 Conference Transcript ("2/14 Tr."), Lx. E to Gov't Mem., at 4. I explained to Rojas that in light of the holdings in Howard and Caban, the amount of heroin Rojas intended to steal was the amount to be used to determine the base offense level for the drug count. See id. at 5-6. Having found that Rojas indisputably intended to steal at least one kilogram of heroin, see id. at 7, I informed Rojas that he would receive 180 months imprisonment on the two counts. See id. at 15, 17. I then gave Rojas the option of withdrawing his plea. See id. at 14.
E. The Second Plea and Sentence
The parties reconvened on March 1, 2000, at which time defense counsel informed me that her client wished to re-plead to the charges. See March 1, 2000 Plea Transcript ("3/1 Tr."), Ex. F to Gov't Mem., at 2. I then conducted a plea allocution that complied in all respects with Rule 11 of the Federal Rules of Criminal Procedure.
At the outset of the allocution, defense counsel confirmed that she had discussed the matter fully with Rojas, with whom she was able to communicate with the assistance of an interpreter, and that she advised him of the maximum penalties under the sentencing guidelines. See 3/1 Tr. at 9. Rojas himself then confirmed that he had discussed the matter fully with his attorney and that he was satisfied with her representation. See id. at 10. I then found Rojas competent to enter an informed plea. See id.
I proceeded to review the charges against Rojas and confirmed that he reviewed the Indictment with his attorney. See id. at 13-14. Specifically, Rojas confirmed his understanding that Count One charged him with conspiracy to violate the narcotics laws by attempting to distribute more than one kilogram of heroin. See id. at 14. In furtherance of this conspiracy, Rojas admitted that he met people at a McDonald's restaurant to plan the robbery. See id. As to Count Three, Rojas confirmed his understanding that he was charged with using or carrying firearms in connection with the narcotics conspiracy. See id. at 14-15. Rojas also confirmed that he had discussed these charges with his attorney. See id. at 15.
I next reviewed the minimum and maximum penalties that Rojas faced as a result of his plea, including a maximum penalty of life imprisonment and a minimum sentence of 15 years. See id. at 15-18. I also explained the provisions regarding supervised release, fines and the special assessment. See id. Rojas again confirmed his understanding of the maximum and minimum penalties. See id. at 18. Rojas then confirmed that he entered into a Plea Agreement with the Government in June of 1999, and that he discussed it with his attorney before re-signing it on March 1, 2000. See id. at 19.
The following colloquy ensued with regard to the waiver of appeal rights.
THE COURT: And it is further agreed that you will not appeal nor litigate under a habeas petition any sentence within or below this guideline range that I just discussed with you. You are giving up your rights to appeal or to attack the sentence in any way. Do you understand that?
THE DEFENDANT: Yes.
See id. at 21. Based upon these representations, I accepted Rojas' plea and sentenced him to the minimum sentence of 180 months imprisonment. See March 1, 2000 Sentencing Transcript, Ex. G. to Gov't Mem., at 6.
III. DISCUSSION
A. Relevant Standard
"Habeas corpus relief is generally available only to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989) (citing U.S. Supreme Court cases). Thus, for Rojas to prevail, he must prove that enforcement of the Plea Agreement and its provisions would, under the circumstances, be fundamentally unfair and unjust.
B. Knowing and Voluntary
Petitioner claims that his plea was not entered knowingly and voluntarily for a number of reasons. For instance, petitioner claims that his trial counsel did not explain the effects of the mandatory minimum sentence and that this Court did not inform him of the elements of any of the crimes charged in the Indictment. See Pet. Mem. at 21-22. In short, petitioner alleges that this Court "failed to determine that the defendant understood the nature of the charges, the affect of any supervised release term, and the applicable Sentencing Guidelines." Id. at 25.
"A plea is constitutionally valid only to the extent it is 'voluntary' and 'intelligent.' Bousley v. United States, 523 U.S. 614, 618(1998) (quoting Brady v. United States, 397 U.S. 742, 748(1970)). Therefore, "a plea does not qualify as intelligent unless a criminal defendant first receives 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.'" Bousley, 523 U.S. at 618 (quoting Smith v. O'Grady, 312 U.S. 329, 334 1941)). Thus, a court's "first consideration is whether the plea was knowing, voluntary and intelligent as understood in terms of Rule 11." United States v. Isom, 85 F.3d 831, 835 (1st Cir. 1996).
In this regard, three 'core concerns' of Rule 11 have been identified: "1) absence of coercion; 2) the defendant's understanding of the charges; and 3) the defendant's knowledge of the consequences of the guilty plea." United States v. Gray, 63 F.3d 57, 60 (1st Cir. 1995).
In determining whether there has been a core violation, we review the totality of the circumstances surrounding the Rule 11 hearing, rather than apply a "talismanic test." What is critical is the substance of what was communicated by the trial court, and what should reasonably have been understood by the defendant, rather than the form of the communication.United States v. Cotal-Crespo, 47 F.3d 1, 4-5 (1st Cir. 1995)
Rojas maintains that he did not understand the nature of the charges against him or the consequences of his plea. This claim, however, is belied by the record. While "a district court is not required to follow any particular formula in determining that defendant understands the nature of the charge to which he is pleading guilty," United States v. Andrades, 169 F.3d 131, 135 (2d Cir. 1999), comprehensive inquiries under Rule 11 were conducted by both the Magistrate Judge and this Court.
In response to this Court's questioning, Rojas confirmed that he had a third-grade education and was not under the influence of any drug, medication, or alcoholic beverage. Rojas agreed that he had received a copy of the Indictment, had discussed it fully with his counsel, and that he was satisfied with his counsel's representation and advice. Rojas confirmed that he had received a copy of the Plea Agreement, that he had signed it after a full discussion of it with his attorney, and that he had read it prior to signing it. He attested that there had been no other promises or assurances made him to induce him to plead guilty, and that there were no attempts to force him or coerce him into doing so. Rojas further confirmed that he understood that he was charged with felony offenses, due to which he may be deprived of certain civil rights; that he understood the maximum applicable penalties; that he had discussed the guidelines with his attorney; and that he knew the judge would determine his sentence after reviewing a presentence report. Finally, Rojas also agreed that he knew he had the right to a trial, as well as the rights incidental to a trial, such as the right to counsel. Furthermore, with respect to the requirement that a factual basis exists for the plea, Rojas described, on the record and in sufficient detail, the steps he had taken in committing the charged offenses.
A criminal defendant's self-inculpatory statements made under oath at his plea allocution "carry a strong presumption of verity," United States v. Maher, 108 F.3d 1513, 1530 (2d Cir. 1997) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136(1977)) (internal quotation marks omitted), and are generally treated as conclusive in the face of the defendant's later attempt to contradict them, see United States v. Gonzalez, 970 F.2d 1095, 1101 (2d Cir. 1992) (no evidentiary hearing necessary where criminal defendant makes allegations that simply contradict his statements made under oath at plea allocution); see also United States v. Bambulas, 571 F.2d 525, 526 (10th Cir. 1978) (statements at plea allocution are conclusive absent credible reason "justifying departure from their apparent truth").Adames v. United States, 171 F.3d 728, 732 (2d Cir. 1999).
Under these circumstances, absent a finding of ineffectiveness of counsel, it cannot be said that Rojas did not understand the nature of the charges against him or the consequence of his plea. See Panuccio v. Kelly, 927 F.2d 106, 111 (2d Cir. 1991) ("[W]hen a defendant has pled guilty on the advice of counsel and then challenges the plea on the ground that it was not voluntary and knowing . . . we have upheld the validity of the plea unless the defendant can show that the advice he received from counsel was constitutionally ineffective within the meaning of the Sixth Amendment.").
C. Ineffectiveness of Counsel
Petitioner claims that his attorney's failure to give notice or explain the waiver of appeal rights provision contained in the Plea Agreement constituted ineffective assistance of counsel warranting vacatur of his plea. In effect, Rojas alleges that because he entered into the plea agreement without the effective assistance of counsel, that agreement, and its waiver of the right to appeal provision, cannot bar the instant habeas attack.
The law is clear that, with respect to the waiver of a right to an appeal, "a defendant's knowing and voluntary waiver of his right to appeal a sentence within an agreed upon guideline range is enforceable." United States v. Djelevic, 161 F.3d 104, 106-07 (2d Cir. 1998); accord United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000) (waiver of an appeal is valid if entered into knowingly and voluntarily). Thus, a defendant "who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence [may not] then appeal the merits of a sentence conforming to the agreement. Such a remedy would render the plea bargaining process and the resulting agreement meaningless." United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993). While this case law pertains to a waiver of the right to appeal, there is no "principled means of distinguishing [a section 2255] waiver from the waiver of a right to appeal," United States v. Wilkes, 20 F.3d 651, 652 (5th Cir. 1994), and it should apply equally to Rosa's waiver of his right to seek post-conviction relief generally. See, e.g., Gumbs v. United States, 8 F. Supp.2d 882, 883 (S.D.N.Y. 1998).
Nonetheless, "a plea agreement containing a waiver of the right to appeal is not enforceable where the defendant claims that the plea agreement was entered into without effective assistance of counsel." United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001) (citing United States v. Djelevic, 161 F.3d at 107). "The rationale is that 'the very product of the alleged ineffectiveness' cannot fairly be used to bar a claim of ineffective assistance of counsel." Hernandez, 242 F.3d at 114 (citing Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999)). Similarly, a section 2255 waiver is unenforceable where the asserted ground for challenging the sentence is ineffective assistance of counsel in connection with the plea negotiations or agreement itself. See Jones v. United States, 167 F.3d at 1145; Balbuena v. United States, 104 F. Supp.2d 218, 220 (S.D.N.Y. 2000).Rosa v. United States, No. 99 Civ. 3499, 2001 WL 1399500, at *4 (S.D.N.Y. Oct. 18, 2001).
The Supreme Court has held "that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58(1985). Accordingly, to establish ineffectiveness of counsel in the context of a plea agreement, a petitioner must show: (1) his attorney's performance was unreasonable under prevailing professional norms and that the challenged action was not sound strategy, and (2) there is a reasonable possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Balbuena, 104 F. Supp. 2d at 220 (citing Strickland v. Washington, 466 U.S. 668, 688-89, 694(1984)). In order to prevail on an ineffective assistance claim, a petitioner must show that his counsel's constitutionally ineffective performance affected the outcome of the plea process such that, but for counsel's errors, there is a reasonable probability that the petitioner would not have pled guilty but would have insisted on a trial. See Hill, 474 U.S. at 59.
When assessing an attorney's performance under the Sixth Amendment, a court, operating with the benefit of hindsight, should not attempt to decide whether an alternative course of action might have led to a more favorable result for the petitioner. Rather, a court must determine "whether or not the course actually pursued [by the attorney] 'might be considered sound . . . strategy' by the attorney at the time." Balbuena, 104 F. Supp. 2d at 221 (quoting Strickland, 466 U.S. at 689).
It is well established that "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. Thus a court must give counsel "wide latitude . . . in making tactical decisions" because a petitioner seeking to establish constitutionally ineffective assistance of counsel must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see, e.g., United States v. Jones, 918 F.2d 9, 11 (2d Cir. 1990) (counsel's decisions are not to be evaluated in "hindsight"). "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690.Rosa, 2001 WL 1399500, at *5 (parallel citations omitted).
There was nothing difficult or confusing about the waiver language contained in the Rojas Plea Agreement to suggest that Rojas might not have understood the consequences of his plea agreement, with or without the benefit of advice from counsel. On the contrary, the waiver provision was explicit and straightforward: "Defendant will neither appeal, nor otherwise litigate under Title 28, United States Code, Section 25255, any sentence within or below the Stipulated Sentencing Guidelines Range." Plea Agreement at 4. It is virtually incomprehensible that petitioner did not understand the waiver provision using his own intelligence and judgment. The fact that petitioner's attorney reviewed the Plea Agreement, and its waiver provision, and recommended that Rojas accept it, is of limited relevance.
Nonetheless, the recommendation to enter into the Plea Agreement with its waiver provision did not constitute ineffective assistance of counsel. This is especially true given the benefits petitioner received as a result of signing the Plea Agreement, namely, the dismissal of all open Counts and the Government's agreement not to prosecute petitioner for further conspiracies. "Courts have refused to find ineffective assistance of counsel in cases where defendants have received tangible benefits from the plea agreements negotiated by counsel." Jimenez v. United States, No. 00 Civ. 7114, 2001 WL 699060, at *5 (S.D.N.Y. June 20, 2001) (citing cases). Accordingly, petitioner's ineffectiveness claim is also dismissed.
IV. CONCLUSION
Petitioner's motion to withdraw his guilty plea and vacate his sentence is denied for the foregoing reasons. Because petitioner has failed to make a substantial showing of a denial of a constitutional right, this Court will not issue a certificate of appealability. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.) (holding that a substantial showing exists where (i) the issues involved in the case are debatable among jurists of reasons, or (ii) a court could resolve the issues in a different manner, or (iii) the questions are adequate to deserve encouragement to proceed further), cert. denied, 531 U.S. 873(2000). The Clerk of the Court is directed to close petitioner's motion and this case.
SO ORDERED: