Opinion
01 Civ. 5826 (HB)
January 25, 2002
OPINION AND ORDER
Petitioner Michael Mungin ("Mungin"), pro se, moves pursuant to 28 U.S.C. § 2255 to vacate his judgment and sentence and for an evidentiary hearing. For the reasons discussed below, the petition is denied in its entirety.
Joanne A. Doughty, a third-year student at the University of California Hastings College of the Law, provided assistance in the research and drafting of this opinion.
Background
On November 19, 1999, Mungin entered into a written plea agreement in which he agreed to plead guilty to one count of attempted murder and three counts of conspiracy to commit murder ("plea agreement"), in exchange for which the Government agreed to dismiss the original indictment under which he potentially faced the death penalty. The plea agreement provided a stipulated sentence of 480 months imprisonment. Following appropriate colloquies, the Court accepted Mungin's guilty plea on November 19, 2000 and sentenced him on June 8, 2000 to 480 months imprisonment and 3 years of supervised release. During the sentencing colloquy on June 8, 2000, I asked Mungin whether he had any objections to the presentence report ("PSR"). He responded that he did not and I proceeded to impose sentence. Mungin did not file an appeal. On June 26, 2001 he filed a petition to vacate his judgment and sentence ("original petition"). On September 11, 2001, after the Government submitted its opposition to the petition, Mungin filed an amended petition that both revisited arguments from the original petition and asserted new arguments ("amended petition"). I construe the amended petition as an amendment, rather than as a second or successive petition. Further, I find under Fed.R.Civ. p. 15(c) that the motion sufficiently relates back to the original petition to afford the government fair notice of the claims. See Fama v. Comm'r of Corr. Serv., 235 F.3d 804, 815 (2d Cir. 2000) (applying Fed.R.Civ.P. 15(c) to § 2254 habeas petition).In the amended petition, Mungin requests a withdrawal of his plea, an evidentiary hearing, and the grant of a new trial on the basis of ineffective assistance of counsel. For the reasons discussed below, the amended petition is denied.
Discussion
A. Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, a petitioner must (1) show that his counsel's representation "fell below an objective standard of reasonableness" under "prevailing professional norms,"Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and (2) prove that "there is a `reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" United States v. Workman, 110 F.3d 915, 920 (2d Cir. 1997) (quoting Strickland, 466 U.S. at 694). This Court:
"must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, bearing in mind that there are countless ways to provide effective assistance in any given case and that even the best criminal defense attorneys would not defend a particular client in the same way."United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quotations omitted).
Mungin asserts that he was denied effective assistance of counsel because his attorney (1) pressured him into signing an unfavorable plea agreement and (2) failed to object to the PSR. Neither claim has merit.
Beyond his entirely unsubstantiated, self-serving allegations that his attorney pressured him into taking a bad deal, Mungin introduced no evidence that his attorney's representation "fell below an objective standard of reasonableness." See Strickland, 466 U.S. at 687-88. Indeed, the facts suggest the opposite. Although he was eligible for the death penalty, pursuant to the plea his lawyer negotiated Mungin avoided not only the possibility of execution but a sentence of life in prison as well. Mungin conceded the merits of his plea when he stated in the amended petition that he had "received a very substantial jail term . . . forty years . . . but he could face an even longer term being controlled [sic] if his plea not be vacated . . . Conviction on these charges would carry a much longer sentence than the one he has already received." Amended petition, at 13. I asked Mungin at the plea if he was satisfied with his counsel and representation, and he replied "yes."See Plea November 19, 1999, at 7.
Mungin alleges that his attorney repeatedly said "he would never win if [he] went to trial," and that "they're going to give you the death penalty." There is no evidence either in affidavit form or in the transcript that these statements were ever made.
Nor has Mungin offered any support for his allegation that his attorney's performance was compromised by a conflict of interest (the source or nature of which he never identified).
Mungin made this statement in connection with his rather unusual, though perhaps creative argument that if the Court does vacate his sentence the Government be precluded from prosecuting the first claim of the indictment for which he was death penalty eligible. I'm afraid that argument falls under the category of, "you can't have your cake and eat it too."
Mungin also claims that his attorney rendered ineffective assistance when he failed to object to the PSR. Specifically, Mungin claims that when he advised his attorney of a single objection to the PSR, i.e., that the PSR "relied on inaccurate information," (original petition, at 15), his attorney responded that such an objection was "moot insofar as he had entered into a plea agreement." See original petition, at 19. These allegations, however, are belied by the following quotation from the sentencing transcript.
"The Court: In terms of what the Probation Department has said, is there anything about those comments that raises questions in your mind?
The Defendant: No."
Sentencing Trans., June 8, 2000, at 3.
Further, even ifI believed Mungin's version of events, he has not shown that his attorney's failure to object to the PSR constitutes conduct "below an objective standard of reasonableness." Given Mungin's stipulation in the plea agreement to a 480 month sentence, it would have served little, if any, purpose for his attorney to object to the PSR. Certainly, it would have been fUtile to ask the Court to compel the Government to file a 5K1.1. letter, as Mungin seems to think his attorney should have done, because there is no evidence that Mungin provided "substantial assistance in the prosecution or investigation of another person," U.S.S.G. § 5K1.1, or that the government acted in bad faith in refUsing to issue a 5K1.1 letter, both of which are mandatory elements of an ineffective assistance claim. See United States v. Kahn, 920 F.2d 1100, 1104 (2d Cir. 1990); Xiu v. U.S., 2001 WL 456338 (S.D.N.Y. 2001) ("The fact that Mr. Schulman did not raise the issue of the 5K1.1 letter at sentencing cannot be said to be below the standard of reasonableness."). For the same reason, Mungin was not eligible for a departure based upon U.S.S.G. § 5K2.0. See U.S. v. Alcantara-Soler, 210 F.3d 355 (2d Cir. 2000) (the Second Circuit "has repeatedly held that a court cannot depart downward for substantial assistance under Section 5K2.0 except in a small category of cases not implicated here"); United States v. Resto, 74 F.3d 22, 27 (2d Cir. 1996).
Mungin's plea agreement specifically provided that "[t]he parties agree that neither a downward nor an upward departure from the Guidelines range set forth above is warranted. Accordingly, neither party will seek such a departure or seek any adjustment not set forth herein." Plea agreement, at 6. Notably, the plea agreement also precluded Mungin from appealing or challenging through a habeas petition "any sentence within or below the stipulated Sentencing range." Plea agreement, at 7. Evidently, he is hoping to do precisely what he forewent in the plea agreement by litigating through the back door of ineffective assistance of counsel.
At the sentencing hearing, I specifically asked the Government whether there was any prospect of a 5K1.1 letter for Mungin. Sentencing Trans., June 8, 2000, at 8. The Government responded as follows: "Since March 30th we have met with the defendant at least one more time, possibly two more times, and the government has evaluated everything he's been able to tell us. It's not that we doubt his credibility. It is just that we don't think that, in the long run, he would be able to provide substantial assistance to warrant a 5K1 letter." Id. at 9.
Mungin claims that his plea was constitutionally defective because the Court failed to advise him of(1) the mandatory minimum penalty provide by law and (2) the meaning of supervised release, i.e. that pursuant to the plea agreement "the government would have control of him" for 3 years beyond his 40 year prison term. Amended petition, at 11. Because Mungin failed to raise either issue on direct appeal he has procedurally defaulted on both. See Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993). And, because he has shown neither "cause" nor "prejudice" for either default, neither of the Rule 11(c) claims is viable. See Billy-Eko v. United States, 8 F.3d 111, 113-114 (2d Cir. 1991). Notwithstanding the default, the claims are without merit for two reasons.
Fed.R.Crim.P. 11 provides:
"(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the affect of any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances, and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense."
First, Mungin concedes in the amended petition that "the court did advise him that he faced a maximum sentence of 40 years in prison, a maximum period of supervised release of three years, a maximum fine of the greater of $250,000 or twice the gross gain or loss, and $250.00 special assessment upon his plea of guilty." Amended petition, at 10. Any technical errors in form the Court may have committed were harmless. See United States v. Renaud, 999 F.2d 622, 624 (2d Cir. 1993) (explaining that "a minor and technical violation of Rule 11" will not be sufficient to undo a guilty plea).
Second, the plea colloquy contradicts Mungin's claim that he was inadequately advised about the supervised release term of his sentence. I asked the Government to state on the record the 3 year supervised release term provided in the PSR, and it did so. See November 19, 1999 Trans., at 11. Thereafter, I stated: "[t]he supervised release concept, which I don't think we got into in much detail, but it follows a period of incarceration. You should understand that if you violate the conditions that go along with that you could be returned to wherever it is you were released from." Id., at 12. In a recent unpublished decision, in facts similar to those here, the Second Circuit rejected a nearly identical claim raised by Mungin's co-defendant Robert Brown. In United States v. Fleliz, 2000 WL 266318 (2d Cir. 2001), the Second Circuit stated:
"Because Judge Peck informed Brown of the maximum penalties he faced, which included 20 years' imprisonment and three years' supervised release, and informed Brown that he could face `additional' imprisonment if he were to violate the terms of his supervised release, we hold that Judge Peck complied with Rule 11(c)(1). In the alternative, Rule 11(h) instructs that `[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.' Therefore, even if we assume tha: Judge Peck did not meet the requirements of Rule 11(c)(1) with respect to the effect of a violation of supervised release, we hold that such an error was harmless under Rule 11(h)."Id. at *1-2. Thus, the colloquy with Mungin was sufficient, and any errors made therein were harmless.
C. Government Coerced the Guilty Plea
In the amended petition, Mungin also claims that the Government lacked sufficient evidence to charge him with a crime and that the prosecutor should be sanctioned by the Court. Setting aside the conclusory nature of this claim, it is contrary to fact and to Mungin's own admission of culpability.
Mungin's final argument, that the Government coerced him to plead guilty through deception, fares no better. In the amended petition, Mungin claimed that he was told by the prosecutor that he would plead guilty only to attempted murder and to conspiracy to commit murder. Under the United States Sentencing Guidelines ("U.S.S.G."), conspiracy to commit murder has a base offense level of 28, unless the conspiracy resulted in the death of the victim, in which case another section of the Sentencing Guidelines applies — first degree murder — and the base offense level increases to 43. U.S.S.G. §§ 2A1.5 2A1.1. Here, all three conspiracies with which Mungin was charged resulted in the death of the victim. As best I can tell, Mungin claims that he did not understand that by pleading to conspiracy to commit murder he would trigger the mandatory "cross-reference" provision to first degree murder. U.S.S.G. § 2A1.5 ("If the offense resulted in the death of a victim, apply § 2A1.1 (First Degree Murder)"). He also argues that the effect of the "cross-reference" was that he inadvertently pleaded to first degree murder, instead of the conspiracy to commit murder charge he was promised by the Govermnent.
To the extent that I understand this argument, it is unavailing. Under the written plea agreement, Mungin agreed to plead guilty to one count of attempted murder and three counts of conspiracy to commit murder, all pursuant to 18 U.S.C. § 1959(a)(5) (conspiracy to commit murder and attempted murder in aid of racketeering activity). The plea agreement also provided that the offense level for each of the charged crimes was 43 and that the maximum penalty for each claim was 120 months' imprisonment. On November 19, 2001, Mungin appeared before me and entered pleas of guilty to all four counts and was advised that the maximum penalty for each count under the applicable statute was 120 months. See 18 U.S.C. § 1959(a)(5) (10 years maximum). Mungin was subsequently sentenced to a total of 480 months imprisonment in accordance therewith. Mungin did not plead guilty to "first degree murder," as he alleges in the amended petition, but to "attempted murder" and "conspiring to commit murder," as set forth in the Judgment (dated June 22, 2001), and was sentenced accordingly. See Judgment, at 2; PSR, at 18 (identifying the statutory maximum sentence for each count as 10 years).
480 months is also the Guidelines mandated sentence. See PSR, at 18 ("Based on a total offense level of 44 and a Criminal History Category of IV, the guideline range for imprisonment is life. However, since the offenses that the defendant pled guilty to have a maximum combined sentence of 40 years (480 months) imprisonment, the guideline range becomes 480 months, pursuant to § 5G1.1a and § 5G1.2(d).")
Mungin also seems to argue that the government caused him to plead guilty to the crime of "maiming in aid of racketeering activity," 18 U.S.C. § 1959(a)(2), which carries a maximum penalty of 30 years' imprisonment. However, Mungin did not plead guilty to maiming, and was not sentenced for that crime.
D. Request For Evidentiary Hearing
Mungin requested an evidentiary hearing in connection with all of his claims. For the reasons discussed above, I do not find that there are any relevant unresolved factual issues, and therefore conclude that a hearing would serve no purpose in the adjudication of any of the claims asserted in the petition.
Conclusion
For the reasons discussed above, the petition is denied and the Clerk of the Court is directed to remove this case from my docket and to close any pending motions. As Mungin has not presented a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253 (2); see United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997), a certificate of appealability will not issue. Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-5 (1962). Mungin also filed a motion for an order pursuant to the Freedom of Information Act. That motion too is denied.