Opinion
CASE NO. 2:12-CV-261 CRIM. NO. 2:10-CR-225(3)
05-13-2013
AUGUSTIN GALVIN-GARCIA, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.
JUDGE MARBLEY
MAGISTRATE JUDGE KING
ORDER and
REPORT AND RECOMMENDATION
Petitioner brings this action to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the original Motion to Vacate, Doc. No. 138, the Amended Motion to Vacate, Doc. Nos. 142, 145, respondent's Return of Writ, Doc. No. 159, petitioner's Traverse, Doc. No. 175, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that counsel be appointed to represent petitioner at an evidentiary hearing on his claim that he was denied the effective assistance of counsel because his attorney failed to file an appeal after being requested to do so and failed to consult with him regarding the filing of an appeal. The Magistrate Judge further RECOMMENDS that the remainder of Petitioner's claims be DISMISSED.
Petitioner's Motion to Strike his former attorney's affidavit from the record, Doc. Nos. 170, 177, are DENIED. Petitioner's Motion for a Status Update, Doc. No. 181, is DENIED as moot.
FACTS and PROCEDURAL HISTORY
Petitioner, along with a number of other individuals, was originally charged by way of indictment with conspiracy to engage in hostage taking and hostage taking in violation of 18 U.S.C. § 1203 (Counts 1 and 2), possession of firearms in furtherance of those crimes of violence in violation of 18 U.S.C. § 924(c) (Counts 3-8), and possession of firearms while being an alien illegally and unlawfully in the United States in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2) (Counts 9-14). Indictment, Doc. No. 1. Petitioner pled guilty, pursuant to a negotiated plea agreement, Plea Agreement, Doc. No. 60, to Count 10 of the Indictment, which charged him with possession of a loaded sawed-off Remington 870 Wingmaster shotgun, while being an alien illegally in the United States. Petitioner was sentenced to a term of imprisonment of 110 months, to be followed by a three year term of supervised release. Judgment, Doc. No. 100. Petitioner did not file an appeal.
On March 26, 2012, Petitioner filed his original Motion to Vacate pursuant to 28 U.S.C. § 2255, Doc. No. 138, and on April 9, 2012, petitioner filed the Amended Motion to Vacate, Doc. Nos. 142, 145. He alleges that he was denied the effective assistance of counsel because his attorney failed to file a notice of appeal after having been requested to do so and failed to explain the advantages and disadvantages of filing an appeal (claim one) and failed to subject the prosecution's case to meaningful adversarial testing at sentencing, constituting constructive denial of counsel (claim two). Petitioner also alleges that the Court lacked jurisdiction over Counts 1-9 of the Indictment (claim four).
Petitioner signed the petition on March 14, 2012.
In his claim three, petitioner also alleged that he was convicted in violation of the Fourth Amendment by reason of the use of "GPS Hits." Petitioner has withdrawn that claim. Traverse, Doc. No. 175, PageID #740.
CLAIM ONE: INEFFECTIVE ASSISTANCE OF COUNSEL
In claim one, petitioner alleges that he was denied the effective assistance of counsel because his attorney failed to explain the advantages and disadvantages of filing an appeal and failed to file a notice of appeal after having been instructed to do so. In support of this claim, petitioner has submitted an affidavit in which he states in relevant part as follows:
I cannot speak [E]nglish which has made my proceedings in U.S. District Court very difficult in the matter herein.Amended Motion to Vacate, Doc. No. 145, Affidavit of Augustin Galvin-Garcia, PageID# 555-56.
***
My defense counsel was ineffective. . . for failing to file notice of appeal as I instructed him to do so right after my federal sentencing. But my lawyer told me to give it some thought but I insisted on him filing my notice of appeal but he informed me that he'd come to visit me to explain the advantages and disadvantages to filing a notice of appeal but counsel [did not come] to see me to do so. . . . [H]e continued to keep convincing me not [to] do so[.]
In response, respondent has submitted the affidavit of petitioner's trial attorney, David J. Graeff, which states in relevant part as follows:
I represented Augustin Galvin-Garcia, Jr., in Case No. CR2-10-225(3) beginning on August 31, 2010, and concluding at his Sentencing Hearing March 4, 2011.Affidavit of Attorney David J. Graeff, attached to Return of Writ, Doc. No. 159, PageID # 653-54.
***
Mr. Galvin-Garcia states: "After my sentencing on March 2011, I instructed defense counsel that I wish to file a notice of appeal because I was not happy with the sentence I received. Defense counsel failed to come visit me after sentencing to advise me of all the advantages & disadvantages to filing a notice of appeal so that a direct appeal may commence in the case at bar." (Ground One; Doc. #138).
The above statement is false. Before Mr. Galvin-Garcia's sentencing, I visited with him on March 2, 2011 (Exhibit One). I
specifically discussed with Mr. Galvin-Garcia his constitutional right to an appeal with the interpreter present. I told Mr. Galvin-Garcia if he wished to file an appeal all he had to do was let me know. At the Sentencing Hearing, after Mr. Galvin-Garcia received a sentence of 110 months, Judge Marbley asked if he wished to appeal. After he replied, Judge Marbley stated that if he wished to appeal all he had to do was notify me, and the appeal would be filed. After the sentencing, I received a phone call from members of Mr. Galvin-Garcia's family. I had been in previous contact with them for months before, having first met them in my office on November 13, 2010. Their names are Janeth Ramirez and Mario Pelcastre. Janeth Ramirez called me saying that Mr. Galvin-Garcia wanted the case file. After receiving written authorization from Mr. Galvin-Garcia, we arranged to meet at my office. The original meeting was set for Saturday, March 12th. They could not make it at that time, so the meeting was rescheduled to Sunday, March 13th, 2011, where I specifically discussed the appellate rights of Mr. Galvin-Garcia. I was informed at the time that Mr. Galvin-Garcia was searching for an appellate lawyer to pursue his case. Exhibit Two is a letter dated March 11, 2011, that I sent to Mr. Galvin-Garcia at the Delaware County Jail. It informs Mr. Galvin-Garcia that a meeting had been scheduled for March 12th (later changed to Sunday, March 13). In addition there is a notation with my handwriting which states the following: "Sunday: 3/13/11 - Janeth at office. Gave her entire case file. Explained appeal again to her. Told her if Augustin wants to appeal, let me know. Told her I'd withdraw - don't believe any issues." The next letter to Mr. Augustin Galvin-Garcia dated March 21st reflects the filing of the Judgment in the case, i.e., March 16, 2011. In that letter, again, I informed Mr. Galvin-Garcia that if anything else needed to be done, just call Janeth and I would oblige. As noted, Mr. Galvin-Garcia does not speak English.
During the course of the above, I received a phone call from an attorney in private practice. He told me that Mr. Galvin-Garcia was considering appealing and hiring him. I gave him a brief summary of the case, and told him if he needed any more information, just call and I would oblige.
In summary, Mr. Galvin-Garcia's statement that he instructed me to file a Notice of Appeal is false, Mr. Galvin-Garcia and his family had a comprehensive knowledge of his appellate rights, and all anyone had to do was contact me, regarding the Notice of Appeal, and I would have done so.
At sentencing, the District Court advised petitioner of his right to file an appeal:
COURT: The sentence as stated will be imposed. Mr. Galvin-Garcia, you have the right to appeal this sentence. If you cannot afford an appeal, you have the right to apply for leave to file an appeal in forma pauperis, which means without the payment of any cost or expense to you. If that application is granted, the Clerk of Court will prepare or file a notice of appeal on your behalf at that time. Any such notice of appeal must be filed within ten days of the time that I enter judgment on your sentence. Do you wish the Court to direct the clerk's office to prepare or file a notice of appeal on your behalf at this time?Sentencing Transcript, Doc. No. 131, PageID #416-17.
MR. GRAEFF: May I have a moment, Your Honor?
COURT: Certainly. (Counsel and defendant confer).
COURT: Do you wish to have the clerk's office prepare or file a notice of appeal on your behalf?
DEFENDANT: I will think it over.
COURT: All right. Mr. Graeff, you can discuss it further with your client, and you can advise Mrs. Clark as to whether you wish to do that.
MR. GRAEFF: Your Honor, he tentatively is saying he does not want to, but he wants to think it over and so I will hear from him very shortly if that's -
The failure of an attorney to file a timely appeal upon a defendant's request constitutes the ineffective assistance of counsel.
[E]very Court of Appeals that has addressed the issue has held that a lawyer's failure to appeal a judgment, in disregard of the defendant's request, is ineffective assistance of counsel regardless of whether the appeal would have been successful or not. See Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994); United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993); UnitedLudwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998).
States v. Horodner, 993 F.2d 191, 195 (9th Cir. 1993); Bonneau v. United States, 961 F.2d 17, 23 (1st Cir. 1992); United States v. Davis, 929 F.2d 554, 557 (10th Cir. 1991); Williams v. Lockhart, 849 F.2d 1134, 1137 n. 3 (8th Cir. 1988). We agree with those courts and hold that the failure to perfect a direct appeal, in derogation of a defendant's actual request, is a per se violation of the Sixth Amendment.
[A] lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. See Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969); cf. Peguero v. United States, 526 U.S. 23, 28, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) ("[W]hen counsel fails to file a requested appeal, a defendant is entitled to [a new] appeal without showing that his appeal would likely have had merit"). This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel's failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant's wishes.Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000).
Where a criminal defendant neither instructs his attorney to file an appeal nor asks that an appeal be taken, a court must consider whether the attorney consulted with his client regarding the filing of an appeal. If defense counsel consulted with his client regarding the filing of an appeal, he performs in a professionally unreasonable manner only if he fails to follow a defendant's express instructions with respect to an appeal. Id. If counsel has not consulted with his client regarding the filing of an appeal, the court must consider whether this failure constitutes deficient performance. Id.
[C]ounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courtsId. at 479-80.
must take into account all the information counsel knew or should have known. See id., at 690, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (focusing on the totality of the circumstances). Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal.
Petitioner's affidavit presents allegations which, if true, may warrant relief. Resolution of the factual dispute reflected in petitioner's affidavit and that of his former trial counsel can be made only in the context of an evidentiary hearing.
It is therefore RECOMMENDED that counsel be appointed to represent petitioner at an evidentiary hearing on his verified claim that he was denied the effective assistance of counsel because his attorney failed to file an appeal after having been requested to do so and failed properly to consult with him regarding the filing of an appeal.
CLAIM TWO: INEFFECTIVE ASSISTANCE OF COUNSEL
In claim two, petitioner alleges that his attorney failed to subject the prosecution's case to meaningful adversarial testing at sentencing; petitioner specifically complains that his attorney failed to object to an increase in his recommended sentence under the United States Sentencing Guidelines under U.S.S.G. § 2A4.1 in connection with the allegation that the offense involved kidnapping or hostage taking. Pursuant to the terms of petitioner's negotiated Plea Agreement, the government dismissed Counts 1 through 9, and Counts 11 through 14 of the Indictment, which included six counts under 18 U.S.C. § 924(c), each of which carried a mandatory minimum consecutive term of five years incarceration. Plea Agreement, ¶ 5, Doc. No. 5, PageID # 130. Petitioner's plea agreement therefore significantly reduced his potential sentence. The Plea Agreement also indicated that petitioner understood that the United States would "advocate that the Sentencing Guideline calculations should be made pursuant to U.S.S.G. §§ 2K2.1(c)(1)(A), 2X1.1 and 2A4.1 based on the underlying offense of hostage taking." Id., PageID #131.
At his guilty plea hearing, see Guilty Plea Transcript, Doc. No. 128, petitioner indicated that he had discussed with his attorney the charges against him and possible defenses to those charges. Id., PageID #361-62. He had also discussed the maximum possible penalties that he faced. Id., PageID #362. He denied being under the influence of narcotics, prescription medication or alcoholic beverages. Id., PageID #367. He had told his attorney everything that he knew about the case against him and he believed that his attorney was fully informed about the facts and circumstances on which the case was based. PageID #368. He was satisfied with his attorney's advice and representation. Id., PageID #369. The Court advised petitioner of the elements of the offense to which he was pleading guilty and of the maximum penalty that he faced. Id., PageID #369-70. Petitioner understood that the Court could impose that maximum sentence. Id., PageID #370. Petitioner was also advised of the rights waived by the entry of a guilty plea and petitioner indicated that he understood that waiver. Id., PageID #371; 373-75. He had discussed with his counsel how the sentencing guidelines might apply in his case. Id., PageID #372. The Assistant United States Attorney summarized the terms of the Plea Agreement. Id., PageID #375-77. Petitioner agreed with that summary. Id., PageID #378. Petitioner denied any promise of leniency in exchange for his guilty plea. Id., PageID #378-79. He denied being threatened or forced into entering the guilty plea. Id., PageID #379.
A Special Agent of the Immigration and Customs Enforcement Agency summarized the facts underlying the case as follows:
On December 14th, 2009, Martin Valdez Zavala; Augustin Galvin-Garcia, also known as Pedro Rodriguez Solano; Mauricio Martinez-Diaz and Jorge Toledo-Corzo traveled in two cars, along with four other men, to attempt to locate Manuel Hernandez. Several weeks prior, Hernandez had stolen a kilo of cocaine that had been delivered to him by Mauricio Martinez-Diaz. The defendants were now looking for Hernandez to obtain money he owed to Augustin, also known as Pedro, for these drugs.Id., PageID #380-84. Petitioner agreed with the truth of those facts. Id., PageID # 384.
In the early evening, in an area just north of Morse Road, around Urban Drive and Kingsmill Drive in Columbus, Ohio, the men saw Hernandez, and a shootout ensued. Hernandez fled but the men were able to follow a light blue Dodge Caravan being driven by Monica Barrera, the girlfriend of Hernandez. Their three-year-old daughter was also inside the vehicle.
Shortly thereafter, the eight men in both cars were able to block Barrera's car, and several men made entry into her vehicle with guns drawn. The men forced Barrera out of the driver's seat and then covered her eyes. The Dodge Caravan was then driven to 2166 Gaver Lane, the residence of Augustin. Barrera and her daughter were taken inside the residence, and the Dodge Caravan was driven away from the scene and left in a parking lot on the west side of Columbus.
While inside the house, a series of phone calls were made to Hernandez y Augustin demanding twenty to thirty thousand dollars in payment for the safe release of Barrera and the child. Though Barrera and the child were not shackled or restrained, they also were not free to leave the house. During this time, Barrera also saw a number of firearms that were being carried, loaded, and passed among the eight men inside the house. By 10 p.m. that evening, law enforcement had become aware of the incident and set up surveillance on the house at 2166 Gaver Lane in Columbus, Ohio.
Around 10:45 p.m., Martin and Mauricio left the residence and entered a Volkswagen Jetta, Ohio license plate EYE-4081 that
belonged to another of the remaining men. When going to this vehicle, Martin was carrying a loaded Ejercito Argentino .45 caliber pistol bearing serial number 27222. Maurico agreed to drive the Jetta, and Martin placed the handgun under the driver's seat.
Officers with the Columbus Police Department observed the Volkswagen Jetta leaving the residence and arranged for it to be stopped, and both men were arrested. The .45 caliber pistol was seized after it was found sticking out from underneath the driver's seat. The gun was manufactured in Argentina, and had been imported into the state of Virginia.
Meanwhile, inside the residence, negotiations with Hernandez had concluded, and the remaining six men made plans to leave the residence and attempt to meet with him. It was agreed amongst the men that Guadalupe Villa Rodriguez would remain inside the house with Barrera, the child, and two remaining rifles while the other five men would leave to meet with Hernandez.
At 12:50 a.m., on December 15th, 2009, Augustin and Jorge, along with three other men, left the residence. The men were armed with a loaded Haskel .45 caliber handgun; and Matias Gallegos-Villagomez carried a loaded sawed-off Remington 870 Wingmaster shotgun. All five men entered a black Ford F-150 pickup and left the residence.
Columbus Police Department officers stopped the vehicle and arrested Augustin, Jorge, and the three other men. Officers immediately noticed and seized the sawed-off Remington shotgun, which was in plain view on the floor of the interior of the pickup truck. This Remington shotgun bearing serial number T641539 was manufactured in the state of New York. Officers also seized a loaded Ruger and Haskel firearms from inside the pickup.
Augustin was found in possession of Barrera's Mexican identification card and a digital memory card from her camera. Ultimately, a search warrant was executed at 2166 Gaver Lane around 6 a.m. on December 15, 2009, and Barrera and her child were safely recovered, and Guadalupe Villa Rodriguez was arrested.
ICE records determined that defendant Mauricio Martinez-Diaz was a citizen of El Salvador who had previously used the name of Jose Alexander Chicas-Yanez, and that he was illegally within the United States.
ICE also determined that defendants Martin Valdez Zavala and Jorge Toledo-Corzo were citizens of Mexico and that they were illegally within the United States.
Defendant Augustin Galvin-Garcia Jr., also known as Pedro Rodriguez Solano, is also a citizen of Mexico who had three previous voluntary returns to Mexico under the name of Felix Rodriguez Solano and Pedro Rodriguez Solano in 1998 and 1999. ICE records confirmed that Augustin is again illegally within the United States.
At sentencing, petitioner indicated that he had received a copy of the Presentence Investigation Report at least ten days earlier, which he reviewed with his counsel. Sentencing Transcript, Doc. No. 131, PageID #400. Petitioner was given a three level reduction in his recommended sentence for acceptance of responsibility. Id., PageID #401-02. The government took the position that petitioner's recommended sentence fell within the range of 292 to 365 months. Id. Defense counsel argued that, because the statutory maximum term for the offense to which petitioner pled guilty was 120 months, the recommended sentencing range should be calculated at 10 to 120 months. Id., PageID #403-05. The District Court concluded that, under U.S.S.G. § 5G1.1, sentencing options ranged from probation to 120 months in prison. Id., PageID #406. As noted supra, petitioner was sentenced to 110 months imprisonment plus three years supervised release. Id., PageID #414.
Petitioner complains that his attorney failed to object to the application of a higher base offense level based on kidnapping; petitioner contends that he was not responsible for kidnapping, as defined under 18 U.S.C. § 1201, because he seized but did not hold the victims. Amended Petition, Doc. No. 142, PageID #540.
Section 2K2.1(c)(1)(A) of the United States Sentencing Guidelines requires that, if the defendant used or possessed a firearm or ammunition in connection with the commission or attempted commission of another crime, U.S.S.G. § 2X1.1 is to be applied if the resulting offense level is greater than that under § 2K2.1. The conspiracy in this case involved kidnapping, abduction and unlawful restraint. Therefore, under U.S.S.G. § 2X1.1(c)(1),U.S.S.G. § 2A4.1 was applied to determine petitioner's base offense level of 32. Presentence Investigation Report, ¶ 50-51.
(c) Cross Reference
(1) If the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense, or possessed or transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection with another offense, apply
(A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above; . . .
U.S.S.G. § 2X1.1(c)(1) provides:
(c) Cross Reference
(1) When an attempt, solicitation, or conspiracy is expressly covered by another offense guideline section, apply that guideline section.
U.S.S.G. § 2A4.1 provides:
Kidnapping, Abduction, Unlawful Restraint
(a) Base Offense Level: 32
(b) Specific Offense Characteristics
(1) If a ransom demand or a demand upon government was made, increase by 6 levels.
(2) (A) If the victim sustained permanent or life-threatening bodily injury, increase by 4 levels; (B) if the victim sustained serious bodily injury, increase by 2 levels; or (C) if the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels.
(3) If a dangerous weapon was used, increase by 2 levels.
(4)(A) If the victim was not released before thirty days had elapsed, increase by 2 levels.
(B) If the victim was not released before seven days had elapsed, increase by 1 level.
(5) If the victim was sexually exploited, increase by 6 levels.
(6) If the victim is a minor and, in exchange for money or other consideration, was placed in the care or custody of another person who had no legal right to such care or custody of the victim, increase by 3 levels.
(7) If the victim was kidnapped, abducted, or unlawfully restrained during the commission of, or in connection with, another offense or escape therefrom; or if another offense was committed during the kidnapping, abduction, or unlawful restraint, increase to
(A) the offense level from the Chapter Two offense guideline applicable to that other offense if such offense guideline includes an adjustment for kidnapping, abduction, or unlawful restraint, or otherwise takes such conduct into account; or
(B) 4 plus the offense level from the offense guideline applicable to that other offense, but in no event greater than level 43, in any other case,
if the resulting offense level is greater than that determined above.
(c) Cross Reference
(1) If the victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply § 2A1.1 (First Degree Murder)
Petitioner's claim that the facts of the case fail to establish his criminal responsibility for kidnapping and that his attorney therefore performed in a constitutionally ineffective manner by failing to object to a recommended sentence under the higher base offense level for kidnapping, see Presentence Investigation Report, plainly lacks merit. In order to establish a conviction under 18 U.S.C. § 1201, the government must establish that a defendant
(1) knowingly and willfully seized confined, decoyed, inveigled, kidnapped, abducted, or carried away [the alleged victims]; (2) for some benefit or reason; (3) using any means or instrumentality of interstate commerce.United States v. Jenkins, -- F.Supp.2d --, 2012 WL 4887389, at *17 (E.D.Ky. Oct. 15, 2012). The government may also establish the substantive offense of kidnapping by establishing that a defendant conspired to violate the kidnapping statute and one or more of the co-conspiractors engaged in an overt act to bring about the object of the conspiracy. 18 U.S.C. § 1201(c). Plainly, the facts recounted at petitioner's guilty plea hearing, the truth of which petitioner conceded, met the elements required to establish a kidnapping offense. Additionally, the government represents that petitioner was arrested while in possession of the Mexican identification card and digital camera memory card belonging to victim Monica Barrera and there were audio recordings of petitioner making ransom demands. Return of Writ, Doc. No. 159, PageID #641-42. Both victims were found in petitioner's residence and a number of co-defendants implicated petitioner as the leader of the conspiracy. Id. at 642. Finally, there was evidence that petitioner used a means or instrumentality of interstate commerce by use of the telephone to make the ransom demand. See United States v. Brika, 487 F.3d 450 (6th Cir. 2007).
Moreover, the base offense level for kidnapping by cross reference can apply even if the defendant is never formally charged with or convicted of kidnapping. See United States v. Huff, No. 3:10-CR-73, 2012 WL 1565442, at *4 (E.D. Tenn. May 2, 2012)(citing United States v. Cowen, 196 F.3d 646, 649 (6th Cir.1999) ("[T]he sentencing guidelines do not restrict § 2K2.1(c), the cross-reference provision, to offenses that were charged in the indictment")).
The government had sufficient evidence to convict petitioner of the offenses charged, including the offense of hostage taking. By virtue of his guilty plea, petitioner substantially reduced his potential prison sentence: he obtained a three level reduction in his sentence and was sentenced to a term of imprisonment ten months below the statutory maximum term of incarceration even though his recommended guideline sentence was much higher. His attorney was not ineffective for failing to challenge petitioner's base offense level at sentencing and petitioner was not prejudiced by his trial attorney's representation. Under these circumstances, the Court concludes that petitioner has failed to establish the ineffective assistance of counsel at sentencing. See Strickland v. Washington, 466 U.S. 668 (1984).
CLAIM FOUR: LACK OF JURISDICTION AND INEFFECTIVE ASSISTANCE OF
COUNSEL
In claim four, petitioner alleges that the Court lacked jurisdiction because there was no evidence to establish the crime of hostage taking under 18 U.S.C. § 1203 and, therefore, "the government lacks jurisdiction altogether in the case at bar." Traverse, Doc. No. 175, PageID #741. Petitioner also alleges that he was the denied effective assistance of counsel because his attorney failed to file a motion to dismiss Counts 1-9. Although this argument is irrelevant to the offense charged in Count 10 of the Indictment, and upon which petitioner actually stands convicted, petitioner appears to argue that his sentencing guideline range was improperly increased because it took into account the hostage taking, or kidnapping, addressed in Counts 1-9. Id., PageID #744. This claim is without merit.
To prove a hostage-taking offense, the government must prove, beyond a reasonable doubt, that the defendant detained or seized another person and, after detaining or seizing that person, the defendant threatened to kill, injure, or continue to detain that person for the purpose of compelling a third party to do an act. See 18 U.S.C. § 1203(a). The government must also prove that either the defendant or the person held was not a United States citizen at the time of the offense. See id. The statute for aider and abetter liability provides that "[w]hoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principle [in the offense]." 18 U.S.C. § 2(a). Thus, in order to convict a defendant as an aider and abettor of the hostage-taking charge pursuant to 18 U.S.C. § 2, the government must prove, beyond a reasonable doubt: (1) that the offense of hostage-taking was committed; (2) that the defendant in some way aided or abetted someone else to commit the hostage-taking offense; and (3) that the defendant intended to commit the hostage-taking offense.United States v. Angeles, No. 3:07-cr-92, 2010 WL 2103037, at *4 (E.D. Tenn. May 20, 2010).
At the time of the offense addressed in Counts 1-9, petitioner and his co-defendants were not citizens of the United States; there was also evidence that one of the alleged victims, Monica Barrera, was not a citizen of the United States. Thus, the government had evidence in support of all the essential elements of Counts 1-9 and petitioner's trial counsel was not ineffective in failing to challenge Counts 1-9 for lack of jurisdiction.
WHEREUPON, the Magistrate Judge Magistrate Judge RECOMMENDS that counsel be appointed to represent petitioner at an evidentiary hearing on his claim that he was denied the effective assistance of counsel based on his attorney's failure to file an appeal after being requested to do so and failure properly to consult with petitioner regarding the filing of an appeal. The Magistrate Judge further RECOMMENDS that the remainder of petitioner's claims be DISMISSED.
Petitioner's Motion to Strike his former attorney's affidavit from the record, Doc. Nos. 170, 177, are DENIED. Petitioner's Motion for a Status Update, Doc. No. 181, is DENIED, as moot.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.
____________________
Norah McCann King
United States Magistrate Judge