Opinion
Cr. No. 99-299(MJD/JGL), Civ. No. 01-389(MJD).
December 17, 2001
Petitioner, pro se.
Steven P. Logan, Assistant United States Attorney for and on behalf of Respondent.
ORDER
The above-entitled matter came before the Honorable Michael J. Davis on a Petition to correct, set aside or vacate Petitioner's sentence pursuant to 28 U.S.C. § 2255.
Background
Petitioner was charged by indictment on October 22, 1999 with possession with intent to distribute heroin. Originally, an Assistant Federal Public Defender was assigned as Petitioner's counsel, but shortly thereafter he retained Albert Garcia and Bobby Sea as defense counsel.
Trial was scheduled to commence on January 11, 2000. Petitioner instead entered a plea of guilty on January 18, 2000. After the plea, but prior to sentencing, the Petitioner moved to withdraw his plea. Simultaneously, Petitioner's retained counsel moved to withdraw as counsel of record. This Court granted Petitioner's motion to withdraw from his plea of guilty, but denied counsel's request to withdraw as counsel. The matter was then set for trial.
Prior to trial, the Government filed a sentencing enhancement information pursuant to 21 U.S.C. § 851, based on the Petitioner's prior felony drug conviction, the result of which raised the mandatory minimum sentence for which the Petitioner was subject to ten years. Trial commenced on July 25, 2000. After three days of deliberation, the jury informed the Court that it was unable to reach a verdict. Consequently, a new trial was scheduled for August 1, 2000.
Instead of a retrial, the parties entered into an agreement in which the Petitioner would waive his right of indictment, and plead guilty to an Information, which charged conspiring and attempting to possess with the intent to distribute 600 grams of heroin. Petitioner thereafter entered a guilty plea on August 14, 2000. On October 19, 2000, the Petitioner was sentenced to a term of imprisonment of 63 months. The Petitioner did file a notice of appeal, but thereafter moved to dismiss the appeal, which motion was granted on February 21, 2001. This petition for relief pursuant to 28 U.S.C. § 2255 was then filed on March 2, 2001.
In his habeas petition, Petitioner asserts that his conviction and sentence should be vacated because the same were obtained as a result of ineffective assistance of counsel. Specifically, the Petitioner asserts that he received ineffective assistance of counsel when counsel allowed him to plead guilty to a conspiracy charge, when the evidence did not support an indictable conspiracy; when counsel failed to conduct an investigation regarding the informant's catering business; and when counsel used improper means to procure his guilty plea, and their failure to act on his request to withdraw from his guilty plea. Petitioner also asserts that his guilty plea is constitutionally invalid, in that it was not knowing or voluntary.
After reviewing the petition, this Court granted Petitioner's request for an evidentiary hearing, and appointed counsel to represent Petitioner at such hearing. The hearing was conducted on December 12, 2001, during which Petitioner presented the testimony of himself, Milton Martins and one of his trial counsel, Bobby Sea. The government presented the testimony of Petitioner's second counsel, Albert Garcia.
Analysis
A petition filed pursuant to 28 U.S.C. § 2255 is not a substitute for a direct appeal. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). Collateral relief under § 2255 may be available for claims not raised on direct appeal, if: 1) such claims involve jurisdictional or constitutional issues, or involve a fundamental defect which inherently results in a complete miscarriage of justice; and 2) the Petitioner shows cause for the procedural default and resulting prejudice. Bedford v. United States, 975 F.2d 310, 313 (7th Cir. 1992).
To succeed on his claim of ineffective assistance of counsel, Petitioner must show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment.Strickland v. Washington, 466 U.S. 668, 687 (1984). Additionally, Petitioner must show that such deficient performance prejudiced the defense. Id.
The Strickland Court provided some guidelines to assist in the determination of whether counsel's performance was constitutionally deficient.
"[A] guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not 'a reasonably competent attorney' and the advice was not 'within the range of competence demanded of attorneys in criminal cases.' . . . When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.Id. at 687-688 (citations omitted). When addressing an ineffective assistance of counsel claim, the Court must be highly deferential to counsel's performance, and must "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct". Id. at 689-90.
Petitioner initially argues that counsel was ineffective because they counseled him to enter a plea of guilty to an unindictable offense. This argument is based on Petitioner's understanding that there can be no indictable conspiracy between the defendant and a government agent only. This is a correct recitation of the law, but it is incomplete. One can be charged for conspiracy involving the defendant and a government informant, if the evidence shows that the defendant conspired with the informant prior to the time the informant began working for the government. United States v. Rios, 171 F.3d 565, 566 (8th Cir. 1999). In this case, Petitioner admitted that for a period of three years prior to his arrest, on October 1, 1999, he had a relationship with the informant, Meyer Warren, through which he obtained and sold between 200 to 400 grams of heroin per month. Guilty Plea Hearing on 8/14/00, at 20-21. Mr. Warren, however, did not begin working as a government agent until August 1999. Government's Ex. 2. Based on this evidence, the Petitioner's argument that he was not involved in an indictable conspiracy has no merit.
Petitioner further argues that his counsel was ineffective for failing to discover that Mr. Warren owned restaurants — evidence that was critical to refute Warren's testimony that "catering", as used in taped conversations between Petitioner and Mr. Warren, was a code word for drugs. Petitioner states that he agreed to plead guilty only if an investigation failed to reveal that Mr. Warren owned any restaurants. Because counsel told him they could find no evidence that Mr. Warren owned restaurants, he agreed to plead guilty.
Petitioner states that on appeal, the Assistant Federal Public Defender assigned to his case did an independent investigation as to whether Mr. Warren did, in fact, own a restaurant. This investigation revealed that Mr. Warren did own a restaurant. Petitioner asserts that because trial counsel had failed to discover evidence relevant to his defense, his guilty plea was not knowing and voluntary.
If counsel did, in fact, conduct an investigation, Petitioner has not identified exactly what information was discovered during said investigation.
Petitioner was given the opportunity at the evidentiary hearing to provide evidence that Meyer Warren did in fact own a restaurant, and that counsel failed to conduct a thorough investigation into the matter. At the hearing, Petitioner called Milton Martins. Mr. Martins testified that he met Petitioner in jail, and there told Petitioner that he knew Meyer Warren. He also testified that he believed Mr. Warren was involved in a restaurant with two other individuals, located at 38th Ave. South and Nicollet Ave. South in Minneapolis. He further testified that at one point he considered opening another restaurant with Warren, but that such deal never was completed.
Petitioner's trial counsel both testified at the evidentiary hearing, and both testified that an investigation was undertaken to determine whether Mr. Warren owned any restaurants. Bobby Sea testified that he spoke with the owners of a restaurant located at approximately 38th and Nicollet, with the word "chicken" in the name. The owner told Mr. Sea that Warren was not involved, or owned an interest in the restaurant. This individual also told Mr. Sea that he was also looking into opening another restaurant with Warren, but that Warren never came up with the necessary funds. Mr. Sea's testimony was later confirmed by the testimony of co-counsel, Albert Garcia.
Based on this evidence, the Court finds that Petitioner has failed to show that counsel was ineffective because they failed to discover evidence relevant to his defense. In fact, the evidence shows that counsel did conduct the relevant investigation, and was unable to discover evidence to support the defense.
The claim that Petitioner agreed to plead guilty only if counsel did not discover evidence showing that Warren owned restaurants is now moot, based on the Court's finding that Petitioner has failed to show such evidence exists. Nonetheless, the argument is contradicted by the record. At the August 14, 2000 plea hearing, Petitioner stated that no promises, other than those contained in the Plea Agreement and Sentencing Stipulations, were made to him to get him to enter a plea of guilty. Plea Tr. 16. Counsel both testified that no such agreement was made, and that Petitioner entered into a Plea Agreement after many discussions were had with Petitioner and his wife as to the costs and benefits of a second trial.
Finally, Petitioner asserts that he was denied effective assistance of counsel when counsel failed to file a motion to withdraw his guilty plea of August 14, 2000. Petitioner asserts that his second request to withdraw his guilty plea was prompted by a "jailhouse lawyer", who advised him that the information did not charge an indictable conspiracy. As previously discussed, however, Petitioner was charged and pleaded guilty to an indictable offense. Failure to file a meritless motion does not establish ineffective assistance of counsel. Dyer v. United States, 23 F.3d 1424, 1426 (8th Cir. 1994).
IT IS HEREBY ORDERED that the Petition filed pursuant to 28 U.S.C. § 2255 [Docket No. 193] is DISMISSED WITH PREJUDICE.