Opinion
Criminal Case 03-279-1, Civil Case 04-4991.
April 18, 2005
REPORT AND RECOMMENDATION
This is a pro se Motion to Vacate, Set Aside, or Correct a Federal Sentence, filed pursuant to 28 U.S.C. § 2255, by a defendant currently incarcerated at the Bergen County Jail, in Hackensack, New Jersey. For the reasons that follow, I recommend that the Motion be denied.
FACTS AND PROCEDURAL HISTORY :
On June 20, 2003, King entered a guilty plea to conspiring to make false statements to a firearms dealer ( 18 U.S.C. § 371), and being a felon in possession of nine firearms ( 18 U.S.C. § 922(g)(1)). King, who had previously been convicted of a felony, supplied the money and directed three people to purchase nine guns for him from two sporting goods stores. (N.T. 6/20/03, 18-19). In the plea agreement, King agreed that, if the district court did not impose a sentence above the statutory maximum of 15 years' imprisonment, he would waive his right to appeal and/or collaterally attack his sentence. (Guilty Plea Agreement, at ¶¶ 5, 9). Specifically, the plea agreement provided:
9. In exchange for the undertakings made by the government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, whether such right to appeal or collaterally attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law.
a. Notwithstanding the waiver provision above, if the government appeals from the sentence, then the defendant may file a direct appeal of his sentence.
b. If the government does not appeal, then notwithstanding the waiver provision set forth in this paragraph, the defendant may file a direct appeal but may raise only claims that:
1. the defendant's sentence exceeds the statutory maximum; or
2. the sentencing judge erroneously departed upward from the otherwise applicable sentencing guideline range.
(Guilty Plea Agreement, at ¶ 9).
During the plea colloquy, the Honorable Berle Schiller, to whom the case is assigned, had the Assistant United States Attorney explain the limitations on King's right to appeal contained in the plea agreement.
As set forth in paragraph 9 of the plea agreement on pages 9 to 10, if the Government does not appeal in this case, then the defendant's rights to appeal are limited to two instances, that the defendant's sentence exceeds the statutory maximum and the maximum was what we already discussed here [fifteen years], and secondly, that the sentencing judge erroneously departed upward from the otherwise applicable sentencing guideline range.
(N.T. 6/20/03, 26). When asked by the court if he understood, King responded that he did. Id. Thereafter, the court accepted King's guilty plea. On October 3, 2003, Judge Schiller sentenced King to 96 months' imprisonment, well below the 15 year maximum sentence King faced. Despite the waiver provision contained in the guilty plea agreement, King filed a direct appeal on May 18, 2004. The Court of Appeals dismissed the appeal on November 16, 2004.
While the appeal was pending, King filed this Motion to Vacate on October 25, 2004. In the Motion, King claims: (1) plea counsel was ineffective for advising King to waive his appellate and collateral rights; (2) the waiver provisions of the plea agreement were invalid; (3) plea counsel was ineffective for advising King to stipulate to the number of weapons involved; and (4) counsel was ineffective at sentencing regarding an upward adjustment for his role in the offense and his criminal history score; and (5) the prosecution failed to disclose exculpatory statements made by King's co-defendants.
We first address the validity of the waiver provision. InUnited States v. Khattak, 273 F.3d 557 (3d Cir. 2001), the Third Circuit held that waivers of appeals in plea agreements are generally enforceable "if entered into knowingly and voluntarily, unless they work a miscarriage of justice." Id. at 558. Although the Third Circuit has not yet addressed whether the waiver of appeals bars a subsequent collateral attack, several other Circuit Courts have, and so have a number of the judges of this bench. See United States v. White, 307 F.3d 336, 337 (5th Cir. 2002); Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1998); DeRoo v. United States, 223 F.3d 919, 924 (8th Cir. 2000). See also United States v. Buchanan, Crim. 03-198, 2005 WL 408043 (E.D. Pa. Feb. 18, 2005) (DuBois, J.); United States v. Fagan, Crim. 02-75, 2004 WL 2577553 *3 (E.D. Pa. Oct. 4, 2004) (Yohn, J.); United States v. Velez, Crim. 02-828-5, 2004 WL 1169990 (E.D. Pa. Apr. 30, 2004) (Baylson, J.); Clemmer v. United States, Crim. 03-83, 2004 WL 1858342 *2 (E.D. Pa. Aug. 9, 2004) (Surrick, J.); United States v. Shedrick, Crim. 02-523, 2004 WL 1169989 (E.D. Pa. Apr. 30, 2004 (Davis, J.). Those courts that have addressed the issue have held that claims challenging the voluntariness of the waiver of the appellate rights or alleging ineffective counsel in the negotiation of the waiver do survive the waiver.
Here, King claims that counsel was ineffective for advising him to waive his appellate rights. We note that he has not attacked the voluntary nature of the waiver, nor could he succeed with such a claim. The agreement, which he signed, was clear that he would waive his appellate rights as long as he was sentenced within the statutory maximum and the government did not appeal. Moreover, the court had the prosecutor explain the waiver in detail at the sentencing colloquy and King acknowledged that he understood. None of King's answers to any other questions during the colloquy cause us to question the voluntary nature of the waiver. (N.T. 6/20/03, 6 — defendant not under the influence of drugs or alcohol or psychiatric care).
Nor do we find that counsel was ineffective for advising King to accept the appellate waiver. In order to succeed with an ineffective assistance of counsel claim, King must establish that his counsel's performance was deficient and prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to satisfy Strickland's first prong, King must establish that counsel's performance was below "prevailing professional norms." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citingStrickland, at 688).
Considering the facts of this case, King cannot establish that counsel's advice was deficient. King was facing a statutory maximum sentence of fifteen years' imprisonment. (N.T. 6/20/03, 20). Not only was the government prepared to present the testimony of King's co-conspirators had the case gone to trial; but they also had a confession from King that he gave when he was first arrested, in which he "gave a full statement acknowledging his conduct at issue in this case." (N.T. 6/20/03, 19; 10/3/03, 9). In exchange for his guilty plea and his cooperation, the government filed a 5K1.1 Motion. Having a defendant facing a statutory maximum of 15 years', with an overwhelming amount of incriminating evidence, we do not believe that counsel's advice to fully cooperate with the government and waive his appeals was deficient, especially considering the 8 year sentence he received. Moreover, as the government points out in response to the § 2255 Motion, appellate waivers in return for the prospect of a downward departure motion are commonplace. Thus, with the benefit so great — a significantly shorter sentence, and the risk of conviction so high, counsel's advice cannot be said to be below the professional norm.
Having concluded that King cannot establish that counsel's performance was deficient, it is unnecessary for the court to address prejudice. See Stickland, at 697 (if the defendant makes in insufficient showing on either prong, there is no need to address the other). However, we note that King cannot establish prejudice, either. The evidence against King was overwhelming, and his plea and cooperation amounted to a 7-year reduction in his sentence. See supra, at 4.
Pursuant to Khattak, the only other way that King can successfully attack the validity of the appellate waiver is by establishing that it worked a "miscarriage of justice." The Third Circuit has not enumerated specific situations in which the waiver would result in a miscarriage of justice. Rather, our Court of Appeals has adopted the factors set forth by the First Circuit in United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001), for considering such a claim:
[T]he clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result.Khattak, at 563 (quoting Teeter).
Here, the errors of which King complains do not lead the court to believe that enforcement of the waiver provision would result in a miscarriage of justice. To the extent King challenges the effectiveness of counsel at sentencing, the District Court judges of this bench who have addressed this issue have concluded that claims of ineffective counsel at sentencing do not amount to miscarriages of justice to overcome the appellate waiver. United States v. Fagan, Crim. 02-75, 2004 WL 2577553 *4 (E.D. Pa. Oct. 4, 2004) (Yohn, J.); United States v. Robinson, Crim. 02-760, 2004 WL 1169112 *4 (E.D. Pa. Apr. 30, 2004) (Baylson, J.). To conclude otherwise would render the waiver a toothless tiger.
If all ineffective assistance of counsel claims were immune from waiver, any complaint about the process could be brought in a collateral attack by merely challenging the attorney's failure to achieve the desired result. A knowing and intelligent waiver should not be so easily evaded.United States v. White, 307 F.3d 336, 344 (5th Cir. 2002).
Moreover, to the extent King claims counsel's ineffectiveness regarding his criminal history score, we are somewhat perplexed. In the claim, King says that counsel "was ineffective in challenging Petitioner's criminal history score." (Motion, at ¶ 12D). Although the court rejected counsel's argument, King cannot prove that he suffered any prejudice from counsel's presentation of such a challenge. See Strickland, at 687 (prejudice required to establish ineffective assistance of counsel). In the alternative, if King is complaining that counsel did not challenge the criminal history score, the transcript of the sentencing hearing belies such an assertion. (N.T. 10/3/03, 4-5).
Similarly, we find that King's claim, that counsel was ineffective for advising him to stipulate to the number of firearms involved in the offense, does not rise to the level of a miscarriage of justice. King, himself, admitted under oath at the change of plea hearing that he directed three people to purchase a total of nine guns. (N.T. 6/20/03, 18-19). In addition, the Government stated that it was prepared to present evidence from the three co-conspirators and the gun shops' employees to support the charges and the plea, (N.T. 6/20/03, 19), and had a statement from King, admitting his role in the crime. (N.T. 10/3/03, 9). Thus, any denial of the number of weapons would have jeopardized the plea agreement.
Finally, to the extent he complains that the government failed to disclose favorable co-defendants' statements, again, we find no miscarriage of justice. First, a defendant who pleads guilty foregoes the right to receive exculpatory material from the prosecution. United States v. Ruiz, 536 U.S. 622, 629 (2002). Therefore, even assuming the government failed to turn over such documentation, such failure does not provide a basis to circumvent the appellate waiver. Moreover, the government has stated in response to the Motion, that they did produce all the exculpatory portions of statements by the co-defendants. See Response, at 5-6 n. 2.
After filing his § 2255 Motion, King filed a request for the appointment of counsel and specifically mentioned that he believed he had viable issues pursuant to the Supreme Court's decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (Jun. 24, 2004). To the extent King would rely on Blakely, the proper Supreme Court precedent is United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 (Jan. 12, 2005), in which the Supreme Court held that "defendants have a right to a jury trial on any disputed factual subject that increases the maximum punishment, and that the federal Sentencing Guidelines come within this rule to the extent that their operation is mandatory." McReynolds v. United States, 397 F.3d 479, 480 (7th Cir. 2005).
The problem with King's potential claims is that, in all likelihood, Booker, like Apprendi v. New Jersey, 530 U.S. 466 (2000), upon which it is based, will not apply retroactively to cases on collateral appeal. See United States v. Swinton, 333 F.3d 481, 491 (3d Cir. 2003) (concluding Apprendi does not apply retroactively). Although the Third Circuit has yet to rule on the retroactivity of Booker, the judges of this bench, along with the Circuit Courts around the country have concluded thatBooker is not retroactive. See Armstrong v. United States, 2005 WL 724121 *5 (E.D. Pa. Mar. 28, 2005) (Sanchez, J.); United States v. Virelli, 2005 WL 670689 *1 (E.D. Pa. Mar. 22, 2005) (Baylson, J.); United States v. Wenzel, 2005 WL 579064 *12 (E.D. Pa. Mar. 2, 2005) (McLaughlin, J.); United States v. Aikens, 2005 WL 433440 *8 (E.D. Pa. Feb. 25, 2005) (DuBois, J.);United States v. Russell, 2005 WL 281183 (E.D. Pa. Feb. 3, 2005) (Bartle, J.). See also McReynolds v. United States, 397 F.3d 479 (7th Cir. 2005); Varela v. United States, 400 F.3d 864 (11th Cir. 2005); Humphress v. United States, 398 F.3d 855, 863 (6th Cir. 2005). United States v. Lucero, 2005 WL 388731 *2 (10th Cir. Feb. 18, 2005); Green v. United States, 397 F.3d 101 (2nd Cir. 2005).
Having concluded that the waiver of his appellate rights is valid and that the court cannot consider any forthcoming Booker claim filed by King, I make the following:
RECOMMENDATION
AND NOW, this 18th day of April, 2005, IT IS RESPECTFULLY RECOMMENDED that the Motion to Vacate, Set Aside, or Correct Sentence pursuant to § 2255 be DISMISSED and the Government's Motion to Dismiss the § 2255 Motion be GRANTED. IT IS FURTHER RECOMMENDED that the Defendant's request for the appointment of counsel be DENIED. There is no basis for the issuance of a certificate of appealability.
ORDER
AND NOW, this day of, 2005, upon careful and independent consideration of Defendant's Motion to Vacate, Set Aside, or Correct Sentence, the response, thereto, and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The Motion to Vacate, Set Aside, or Correct Sentence is DISMISSED.
3. The Government's Motion to Dismiss the § 2255 Motion is GRANTED.
4. The Defendant's request for appointed counsel is DENIED.
5. There is no basis for the issuance of a certificate of appealability.