Opinion
20-CR-6086L, 22-CV-6156L
2022-07-20
UNITED STATES of America, Plaintiff, v. Alton DUNN, Defendant.
Charles E. Moynihan, Government Attorney, U.S. Attorney's Office, Rochester, NY, for Plaintiff.
Charles E. Moynihan, Government Attorney, U.S. Attorney's Office, Rochester, NY, for Plaintiff.
DECISION AND ORDER
DAVID G. LARIMER, United States District Judge
Defendant Alton Dunn was charged in a criminal complaint (Dkt. #1) on April 24, 2019, alleging that he possessed a controlled substance with intent to distribute, and possessed a firearm in furtherance of a drug trafficking offense, while being a convicted felon, in violation of 21 U.S.C. § 841(a) and 18 U.S.C. §§ 924(c)(1)(A), 922(g)(1), and 922(k).
On July 7, 2020, Dunn signed a waiver of indictment (Dkt. #26) by which he consented to be prosecuted by way of information. That same day, the Government filed an information (Dkt. #27) charging him with one count of possessing with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D), and one count of possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Also on July 7, Dunn signed a written plea agreement (Dkt. #28) that he had entered into with the Government. The agreement provided that Dunn would plead guilty to both counts of the information, and, pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, he would be sentenced to a term of imprisonment of 72 months. Id. ¶ 13. Dunn also agreed to waive his right to appeal or collaterally attack his sentence. Id. ¶¶ 21, 22.
Dunn entered his plea on July 8, 2020. Under the COVID-19 protocols then in place, the plea proceeding was conducted remotely via Zoom technology. At sentencing on July 26, 2021, the Court accepted the Rule 11(c)(1)(C) sentence, and imposed a 72-month term of imprisonment.
Notwithstanding his waiver of his right to challenge his conviction and sentence, on March 30, 2022, Dunn filed a motion pursuant to 28 U.S.C. § 2255 (Dkt. #62), asking the Court to vacate his conviction and sentence on several grounds. The Government has filed a response in opposition to Dunn's motion. (Dkt. #70.)
DISCUSSION
A "federal court may not vacate a sentence of a prisoner in federal custody unless it ‘was imposed in violation of the Constitution or laws of the United States, or ... the court was without jurisdiction to impose such sentence, or ... the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.’ " United States v. Pitcher , 559 F.3d 120, 123 (2d Cir. 2009) (quoting 28 U.S.C. § 2255(a) and Moran v. Burbine , 475 U.S. 412, 429, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) ). To obtain relief pursuant to § 2255, a defendant must establish "a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Bokun , 73 F.3d 8, 12 (2d Cir. 1995) (internal quotation marks and citation omitted).
In his petition, Dunn presents four grounds for relief, three of which assert ineffective assistance of counsel, and one of which asserts that his plea was invalid. In considering Dunn's grounds for relief, the Court is mindful of certain general principles.
A § 2255 petitioner asserting ineffective assistance of counsel faces a heavy burden. First, he must show that his attorney's performance was constitutionally inadequate, under the standards established in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland ’s two-pronged test, the defendant must first demonstrate that counsel's performance fell below an objective level of reasonableness, to such an extent that the attorney was not functioning as counsel. Id. at 687, 104 S.Ct. 2052. In determining whether the defendant has made that showing, the court "must apply a ‘strong presumption’ that counsel's representation was within the ‘wide range’ of reasonable professional assistance." Harrington v. Richter , 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ).
Even if he makes such a showing, the defendant must still establish that he was prejudiced by his attorney's errors, meaning that there is a "reasonable probability" that but for counsel's performance, the outcome of the proceedings would have been different. Id. at 694, 104 S.Ct. 2052. In the context of a conviction based on a guilty plea, that means the defendant must show "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
A petitioner who was convicted after pleading guilty faces an additional burden. First, he is barred from raising any claims for relief based on his attorney's performance prior to the entry of the plea, except insofar as it relates to the voluntary and intelligent character of the plea. Id. at 56-57, 106 S.Ct. 366. See also Tollett v. Henderson , 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) ("[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to deprivation of constitutional rights that occurred prior to the entry of a guilty plea"); accord Parisi v. United States , 529 F.3d 134, 138 (2d Cir. 2008) ; United States v. Garcia , 339 F.3d 116, 117 (2d Cir. 2003).
Second, the petitioner finds himself in the difficult position of trying to discredit his own sworn statements made during the plea colloquy. A defendant's statements at a plea proceeding admitting all the elements of the charge to which he is pleading guilty "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) ). Likewise, where a defendant "has explicitly stated in his allocution that he fully understands the consequences of his plea and that he has chosen to plead guilty after a thorough consultation with his attorney, a district court on habeas review may rely on the defendant's sworn statements and hold him to them." Padilla v. Keane , 331 F.Supp.2d 209, 217 (S.D.N.Y. 2004) (citing Blackledge v. Allison , 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) ) ("[T]he representations of the defendant at [a plea proceeding] ... constitute a formidable barrier in any subsequent collateral proceedings"). See also United States v. Torres , 129 F.3d 710, 715 (2d Cir. 1997) ("A defendant's bald statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea").
In the case at bar, Dunn alleges that his plea was not knowingly or voluntarily entered because his attorney failed to inform him of the "true nature of the charges" and the consequences of pleading guilty, and "erroneously advis[ed] Petitioner to plead guilty." (Dkt. #62 at 5.) Dunn alleges that "there's a reasonable probability that, but for counsel's errors, and erroneous advice that lead [sic] Petitioner to enter into the ambiguous plea agreement, Petitioner would not have pleaded guilty but would have insist[ed] on going to trial." Id.
This ground for relief is both facially meritless and refuted by the record. Dunn has not alleged any basis for his claims that he did not understand the "true nature of the charges" against him, that he was unaware of the consequences of pleading guilty, or that his lawyer "erroneously" advised him to accept the Government's plea offer. Nor has he explained why, had it not been for these circumstances, he would have chosen to go to trial.
Beyond the conclusory nature of Dunn's assertions, his claim related to the guilty plea is directly disproved by the transcript of the plea proceeding. The Court engaged in a thorough colloquy with Dunn to make sure that he was aware of his rights, that he understood the nature of the charges, and that he knew what the consequences would be of his pleading guilty. A few citations to the transcript of the plea proceeding demonstrate the baselessness of Dunn's claim.
At the outset of the proceeding, Dunn was placed under oath. Plea Transcript ("Tr.") (Dkt. #70-1) at 4. He confirmed that he had read the plea agreement, that he had discussed it with his lawyer, and that he understood it. Tr. at 5-6.
After the prosecutor read the factual basis into the record, Dunn confirmed that those were "true and accurate statements as to what happened and what [he] did and what [he] knew and so forth[.]" The Court then asked specific questions concerning the factual basis for the plea, and Dunn admitted that while driving, he had been pulled over by a police officer, who discovered that Dunn was in possession of "over 30 bags" of marijuana, as well as a semiautomatic pistol. Tr. at 11. He also admitted that at the time of his arrest, he had previously been convicted of a felony, robbery in the second degree.
It was also made clear that Dunn understood the potential sentence that he was facing if he were convicted at trial. The maximum possible sentences on Counts 1 and 2 included prison terms of five and ten years, respectively, Tr. at 6-7, and the Guideline range was 70 to 87 months. Tr. at 13. The Court also noted that the Government could have charged Dunn with possessing or using a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c), which would have carried with it a mandatory five-year sentence, consecutive to any other term imposed. Tr. at 16. A 924(c) violation was alleged in the initial criminal complaint, but as part of the plea deal, the Government elected to forgo that charge.
Dunn expressed his satisfaction with his attorney's representation up to that point. Tr. at 21. He stated that he had no questions of her or the Court, prior to entering his guilty plea. Id.
It is abundantly clear, then, that Dunn thoroughly understood the charges against him, and that he had decided, of his own free will, to enter into the plea agreement and to plead guilty to the information. His present claim that his plea was other than knowing and voluntary is flatly contradicted by his own sworn statements at the plea proceeding. I therefore find no merit to Dunn's claim concerning the validity of his plea. See United States v. Maher , 108 F.3d 1513, 1529 (2d Cir. 1997) (stating that a claim challenging the validity of a guilty plea may be dismissed without a hearing "if the movant's allegations ‘merely contradict[ ] [his] earlier statements made under oath at his plea allocution’ ") (quoting United States v. Gonzalez , 970 F.2d 1095, 1101 (2d Cir. 1992) ) (brackets in original); accord United States v. Khammanivong , 357 F.App'x 316, 317 (2d Cir. 2009). See , e.g. , United States v. Dukagjini , 198 F.Supp.2d 299, 302 (W.D.N.Y. 2002) ("Dukagjini's claims of ineffective assistance are contradicted by the record, including his own sworn statements at the Rule 11 proceeding").
Dunn's claims of ineffective assistance of counsel are premised on three grounds. First, he alleges that his attorney should have challenged the "indictment" on the ground of duplicity. (Dkt. #62 at 4.)
The short answer to this assertion is that, as mentioned above, by virtue of his guilty plea Dunn is barred from raising any claims for relief based on his attorney's performance prior to the entry of the plea, except insofar as it relates to the voluntary and intelligent character of the plea. Hill , 474 U.S. at 56-57, 106 S.Ct. 366 ; Tollett , 411 U.S. at 267, 93 S.Ct. 1602 (1973). This assertion in no way implicates the validity of Dunn's plea.
Beyond that, the claim is patently meritless. "An indictment is invalidly duplicitous when it joins in a single count two or more distinct, separate offenses." United States v. Droms , 566 F.2d 361, 363 (2d Cir. 1977). Dunn has not explained in what way the information here could be considered duplicitous, nor does the Court see any ground for such an assertion. In any event, the information was presumably drafted in conjunction with the plea negotiations, so it would have made little sense for Dunn's lawyer to have "challenged" it.
Dunn next argues that his attorney was ineffective because she failed to object to the Presentence Investigation Report ("Report"). He has identified no aspect of the Report that he considers objectionable, and he stated at sentencing that he had reviewed the Report with his lawyer and that he had no objections to it. See Dkt. #70-1 at 47-48. Given the fact that Dunn was sentenced to exactly what he bargained for and agreed to–72 months–Dunn cannot show any prejudice from counsel's failure to object to anything in the Report. At any rate, as a part of the plea agreement Dunn knowingly waived any right to challenge a sentence within his Guideline range, so this claim is procedurally barred as well.
As the Court noted at the plea proceeding, the agreed-upon sentence of 72 months was "at the low end of the Guideline range." Tr. at 15.
Dunn also asserts that his attorney was ineffective because she did not file an appeal following his conviction. As noted, under the terms of the plea agreement, Dunn expressly waived his right to appeal, and he confirmed his understanding of that on the record, under oath, at the plea proceeding.
That in itself does not end the inquiry. Even where a defendant waives his right to appeal his sentence under the terms of a plea agreement, an attorney's failure to file a requested notice of appeal may constitute ineffective assistance. See Garza v. Idaho , ––– U.S. ––––, 139 S.Ct. 738, 750, 203 L.Ed.2d 77 (2019) ; Campusano v. United States , 442 F.3d 770, 775 (2d Cir. 2006).
The important point here, though, is that the defendant must have asked his lawyer to file an appeal. There is no per se rule that defense counsel must in all circumstances file a notice of appeal, whether the client requests it or not. Where the record shows that the defendant did not request that an appeal be filed, or consented not to seek an appeal, there is no basis for an ineffective-assistance claim. See Campusano , 442 F.3d at 771 (counsel must "file a notice of appeal requested by his client"); Peebles v. United States , No. 9-CR-331, 2022 WL 278179, at *9-*10 (W.D.N.Y. Jan. 31, 2022) (denying § 2255 motion where defendant's former attorney stated that defendant never asked him to file an appeal, and defendant did not provide any details about his alleged appeal request); Douchette v. United States , No. 10-cr-06508, 2017 WL 2931385, at *5 (W.D.N.Y. July 10, 2017) (same).
In the case at bar, Dunn's former lawyer, Anne M. Burger, an Assistant Federal Public Defender, at the Court's direction, turned over to the Government copies of written correspondence between her and Dunn. One of these is a copy of a letter dated August 4, 2021, from Burger to Dunn, stating:
Enclosed please find a copy of the judgment in your case that correctly reflects that you received an aggregate 72 months sentence along with supervised release. Based on our discussion after court, I will not be filing a notice of appeal in your case. If you have any questions, please feel free to contact me.
(Dkt. #70-1 at 167) (emphasis added).
It appears, then, that Dunn understood and agreed with his attorney that she would not be filing an appeal, and that he was fine with that. That conversation and agreement mirrored and was consistent with the Court's advice to Dunn at both the plea and sentencing that he had no right to appeal from the agreed-upon 72-month sentence. He had waived it. (Dkt. #71-1 at 30, 61).
Dunn provides no details whatsoever in support of his present bald claim that he "requested counsel to file a [sic] appeal after sentencing...." (Dkt. #62 at 8.) In light of counsel's obviously diligent efforts throughout this case, and the clear indication that Dunn expressly agreed that she would not be filing an appeal, and the fact the plea agreement precluded an appeal, his vague, unsupported assertion to the contrary is insufficient to support a ground for relief.
Finally, to the extent that Dunn's motion can be read as a general attack on his attorney's performance, suggesting that her inadequate representation led him into making an ill-informed decision to plead guilty, such a claim is also belied by the record. In particular, I note that on March 6, 2020 (roughly four months before Dunn's guilty plea), Dunn's attorney sent him a six-page letter outlining his "sentencing exposure following a trial and ... assess[ing] the viability of a suppression challenge relating to the items confiscated from [Dunn's] vehicle" at the time of his arrest. (Dkt. #70-1 at 66-71.) The letter thoroughly and accurately explained the legal issues, the difficulties confronting Dunn, and his likely sentencing exposure. Included with the letter were some 83 pages of attachments, including relevant case law and a copy of the Government's proposed plea agreement, which was substantially identical in all material respects to the plea agreement that Dunn ultimately signed. Clearly, this was not a case in which counsel did the bare minimum or turned in a purely perfunctory performance. In fact, I wish all defense counsel were as diligent and thorough. On top of that, it is evident from the results obtained that counsel's representation was effective. As set forth during the plea proceeding, Dunn was looking at the possibility of a far lengthier sentence than 72 months, had he elected to go to trial and been found guilty. As the Government explains in its brief, see Dkt. #70 at 16, it was a very real possibility that Dunn could have been facing a potential term of imprisonment of 157 to 181 months. That is about seven to nine years more than what he got under the plea agreement. There is thus no basis to conclude either that his attorney rendered ineffective assistance, or that but for her claimed errors, Dunn would not have pleaded guilty, but would have chosen to go to trial. See Brown v. United States , 637 F.Supp.2d 212, 223 (S.D.N.Y. 2009) (dismissing a § 2255 petition because "[Petitioner's] claims of ineffective assistance of counsel in connection with his guilty plea are conclusory, contradicted by the record, unsupported by evidence and therefore are meritless").
CONCLUSION
Defendant's motion to vacate his conviction and sentence under 28 U.S.C. § 2255 (Dkt. #62) is denied in all respects. The Court declines to issue a certificate of appealability because defendant has failed to make a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(1).
IT IS SO ORDERED.