Opinion
00 Cr. 0307 (RWS)
March 18, 2002
HONORABLE JAMES B. COMEY, United States Attorney for the Southern District of New York, JONATHAN R. STREETER, Assistant US Attorney, New York, NY.
OSCAR UNBERTO JIMENEZ, Brooklyn, NY, Pro Se.
O P I N I O N
Pursuant to Federal Rule of Criminal Procedure 32(e), defendant Oscar Jimenez ("Jimenez") has moved to withdraw his plea of guilty on September 18, 2000, to one count of possession of contraband in prison. For the reasons stated below, the motion is denied.
Facts
On June 24, 1999, officers at the Metropolitan Correctional Center ("MCC") performed a routine search of Jimenez in connection with his transfer to another institution. During the search, the officers discovered a razor blade hidden in a back brace Jimenez was wearing. Jimenez told the officers in substance that he had the razor blade because he did not want to leave the MCC. At the time, defendant was serving a 7 to 14 year sentence imposed on March 28, 1994, by the New York State Supreme Court for Criminal Sale of a Controlled Substance.
In a letter dated September 14, 2000, Jimenez's counsel, Frank J. Hernandez ("Hernandez"), informed Jimenez that if he pled guilty, the court could order his sentence to run consecutively, rather than concurrently with his existing sentences. Jimenez signed the letter, written in Spanish, to acknowledge its receipt.
Jimenez claims that, notwithstanding this letter, Hernandez repeatedly told him that the sentence would in all likelihood run concurrently.
On September 18, 2000, Jimenez pled guilty to that charge before the Honorable Michael H. Dolinger, Magistrate Judge. During the plea colloquy, Judge Dolinger asked Jimenez all of the questions required by Fed.R.Crim.P. 11 to establish that he was competent to enter a guilty plea, that he had chosen to do so voluntarily, and that there was a factual basis for the plea.
Jimenez stated that he was satisfied with the representation provided by counsel. Jimenez acknowledged that he understood the maximum penalties applicable on each count, and that he had the right (1) to a trial by jury at which he would be presumed innocent and where the government proved its case beyond a reasonable doubt; (2) to be represented by counsel free of charge; (3) to confront and cross-examine witnesses on his own behalf and to compel their attendance by subpoena; and (4) to testify if he so chose or to remain silent and not incriminate himself. He stated he understood that if he pleaded guilty he would receive no trial.
Jimenez further stated that he had chosen to enter a plea of guilty of his own volition, and that, other than the plea agreement, no one had coerced or threatened him to plead guilty.
In response to questions from Judge Dolinger as to what made him guilty, Jimenez stated that just prior to when he was going to be transferred, Jimenez obtained a razor blade and hid it inside a belt he was wearing. He further stated he intended to use the razor blade to injure himself because he did not want to be transferred.
On November 22, 2001, Jimenez filed a pro se motion to withdraw his plea, alleging that his counsel has been ineffective, and requesting assignment of new counsel. Jimenez claims that Hernandez was ineffective because Hernandez told him that his sentence in the case would run concurrently with his existing sentence and Hernandez failed to investigate unspecified mitigating circumstances. In addition, Jimenez claims that Hernandez coerced him into accepting the plea.
Discussion
1. Legal Standard for Withdrawing Guilty Plea
A criminal defendant has "no absolute right to withdraw his plea of guilty." United States v. Williams, 23 F.3d 629, 634 (2d Cir.), cert. denied, 513 U.S. 1045 (1994). Nonetheless, Fed.R.Crim.P. 32(e) allows a defendant to withdraw a guilty plea prior to sentencing for "valid grounds."
In determining whether there are "valid grounds" to grant a motion under Rule 32(e), a district court should consider, among other things, (1) the length of time between the plea and the withdrawal motion; (2) the circumstances surrounding the plea, including the nature and background of the defendant or any admissions of guilt defendant may have made; and (3) whether the defendant has asserted and maintained his innocence. United States v. Fernandez, 734 F. Supp. 599, 602 (S.D.N.Y. 1990) (citing United States v. Figueroa, 757 F.2d 466, 475 (2d Cir.), cert. denied, 474 U.S. 840 (1985)), aff'd 932 F.2d 956 (2d Cir. 1991); see also Fed.R.Crim.P. 32(d), Advisory Committee Note.
A defendant seeking to withdraw his guilty plea has the burden of proving that there are valid grounds for relief. E.g., United States v. Avellino, 136 F.3d 249, 261 (2d Cir. 1998) (citing United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997)). Moreover, the district court is not required to conduct an evidentiary hearing when the movant's allegations "merely contradict [his] earlier statements made under oath at his plea allocution." United States v. Gonzalez, 970 F.2d 1095, 1101 (2d Cir. 1992). Rather, "the defendant must present some significant questions concerning the voluntariness or general validity of the plea to justify an evidentiary hearing. No hearing need be granted when the allegations on a motion to withdraw a guilty plea before sentencing merely contradict the record, are inherently incredible, or are simply conclusory." Id. (citations omitted).
2. Jimenez Has Raised Insufficient Grounds for Withdrawing His Plea
Jimenez has failed to show either ineffective assistance of counsel or that his counsel coerced him into pleading guilty. Ineffective assistance of counsel, if proven, is a valid ground for withdrawing a guilty plea. Fed.R.Crim.P. 32(e); Boria v. Keane, 99 F.3d 492 (2d Cir. 1996). A defendant asserting ineffective assistance of counsel must show (1) that his counsel's performance was deficient and fell below the range of objectively reasonable representation; and (2) that there is a reasonable probability that counsel's deficient performance affected the outcome of the plea process. Hill v. Lockhart, 474 U.S. 52 (1985); Strickland v. Washington, 466 U.S. 668 (1984). Where, as here, a defendant attacks the voluntariness of his plea on ineffectiveness grounds, the defendant can only establish prejudice by showing 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, 474 U.S. at 59; see also Ventura v. Meachum, 957 F.2d 1048, 1058 (2d Cir. 1992); Panuccio v. Kelly, 927 F.2d 106, 108 (2d Cir. 1991).
Jimenez has failed to show that his attorney was constitutionally ineffective. Hernandez's advice that Jimenez plead guilty does not fall below the range of objectively reasonable representation, nor does his claim that Hernandez failed to investigate mitigating circumstances. The evidence against Jimenez unmistakably showed that he had a razor blade on his person while at the MCC, and that it was hidden. Moreover, he intended to use it as a weapon, at the very least against himself. Under these circumstances, Hernandez's advice that Jimenez plead guilty in order to obtain the benefits of acceptance of responsibility was sound and clearly did not fall below objectively professional norms. In addition, it is unclear to this Court what mitigating evidence could be put forward that would result in a lesser sentence than Jimenez received on the advice given by his attorney.
Finally, even if Hernandez's behavior failed the first prong of the test, it certainly passes the second. Jimenez claims that if he had known the sentence would not run concurrently, he would not have pled guilty and would have taken the case to trial.
His naked allegation that he was told only that the sentence would be concurrent would constitute ineffective assistance of counsel.
However, the written record establishes the contrary. He was advised in writing that the sentence as a result of his plea could be imposed consecutively.
Jimenez's allegations of coercion also must fail. The Second Circuit has limited the circumstances where allegations of coercion are sufficient to warrant withdrawal of a plea. These include where the plea was (1) the product of "physical force or threat of physical force," or "the improper use of economic power to compel another to submit to the wishes of one who yields it"; (2) induced by "mental coercion" overbearing the defendant's will; or (3) a byproduct of the defendant's "sheer inability to weigh his options rationally." United States v. Juncal, 245 F.3d 166, 172 (2d Cir. 2001). Defendant fails to allege in his motion the kind of coercion necessary to support withdrawal of a guilty plea. A defense counsel's "blunt rendering of an honest but negative assessment of [a defendant's] chances at trial, combined with advice to enter the plea" simply does not constitute improper behavior that would suffice to invalidate a plea. Id. In addition, Jimenez stated under oath during the plea colloquy that he was satisfied with his counsel.
Conclusion
For the foregoing reasons, the motion to withdraw the guilty plea is denied. Objections to the presentence report, if any, are to be submitted within one week of sentencing.
It is so ordered.