Opinion
06 Civ. 2079 (DLC).
August 8, 2006
John J.E. Markham, II Markham Read One Commercial Wharf West Boston, Massachusetts, For Petitioner.
Raymond J. Lohier, Jr. Assistant United States Attorney United States Attorney's Office New York, New York, For Respondent.
MEMORANDUM OPINION AND ORDER
Seeking to be resentenced, Edward Sapienza ("Sapienza") brings this petition for a writ of habeas corpus pursuant to Title 28, United States Code, Section 2255. Sapienza asserts that his attorney predicted that the Supreme Court would abolish the Sentencing Guidelines and that he would be able to escape the terms of his plea agreement, and its waiver of his right to challenge his sentence, and obtain a lower sentence. His petition is denied.
Background
Sapienza and his co-defendants were charged in a 14 count indictment in connection with their participation in a boiler room which operated for over three years, and used fraudulent sales practices to garner over $21 million in investments from more than 900 investors. Represented by retained counsel, Sapienza pled guilty on March 18, 2004, pursuant to a written plea agreement that stipulated a Sentencing Guidelines range of 70-87 months' imprisonment. In that document, he agreed that he would not make a departure motion or appeal or litigate pursuant to Section 2255 any sentence that did not exceed 87 months.
At the plea allocation, Sapienza testified under oath that he understood that each of the three counts to which he was pleading guilty carried a maximum sentence of five years' imprisonment, that he believed he understood the plea agreement when he signed it, and that he had not been forced to sign it. He represented that he understood that any prediction by his attorney of his sentence could be wrong. He testified that he understood he could not request a sentence below 70 months' imprisonment and had given up his "right to appeal [his] sentence or ever litigate or challenge [his] sentence so long as" he was not sentenced to more than 87 months in prison. When asked if anyone had made a promise to him as to what his sentence would be, he answered no. On August 20, 2004, Sapienza was sentenced principally to a term of imprisonment of 70 months.
Despite his waiver of his right to appeal, Sapienza appealed his sentence, requesting a remand for resentencing in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). Citing United States v. Morgan, 406 F.3d 135 (2d cir. 2005), and United States v. Haynes, 412 F.3d 37 (2d Cir. 2005) (per curiam), the Court of Appeals dismissed Sapienza's appeal, ruling that he had "knowingly and voluntarily waived" his right to appeal. It denied his request for remand as moot.
Represented by new counsel, on March 16, 2006, Sapienza filed this petition to vacate his sentence. Sapienza does not seek to withdraw his plea of guilty, but he does seek to be resentenced. He contends that his trial counsel "assured" him prior to the entry of his plea of guilty that the Sentencing Guidelines regime would eventually be struck down by the Supreme Court as unconstitutional, and that the Court's forthcoming decision would allow him to be resentenced, despite his plea agreement, to a sentence of no more than his base offense level and most likely to a probationary sentence. His attorney warned Sapienza that if he waited to plead guilty, his sentence would likely be longer. Sapienza asserts that he entered into the plea agreement with the Government only because his attorney told him that the agreement "would not stand" once the law changed.
Discussion
Sapienza seeks to vacate his sentence on the ground that his attorney provided ineffective assistance of counsel prior to his plea of guilty when his attorney (1) predicted changes in the law that would allow Sapienza to escape the terms of his written plea agreement and receive a lower sentence, and (2) allowed Sapienza to enter a plea agreement with the Government that included a waiver of appellate rights. It is unnecessary to hold a hearing to determine precisely what counsel told Sapienza, since Sapienza is in any event bound by the terms of his plea agreement and cannot litigate his sentence either through an appeal, as the Second Circuit has already held, or through this petition, as this Court holds now.
A claim of ineffectiveness of counsel requires a petitioner to show first, that representation fell below "an objective standard of reasonableness," and second, that counsel's error caused prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687-88, 693-94 (1984). If defense counsel's performance is deficient during plea negotiations and "undermines the voluntary and intelligent nature of defendant's decision to plead guilty," then it may constitute ineffective assistance of counsel. United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005). Where a defendant contends that his attorney misled him as to the possible sentence that might result from entry of a plea of guilty, to establish prejudice the defendant must show that he was not aware of the actual sentencing possibilities and that accurate information would have made a difference in his decision to plead guilty. Id.
An attorney's error in predicting the future course of the law, however, does not constitute ineffective assistance of counsel. Consequently, a defendant is not entitled to withdraw a plea of guilty when his counsel erroneously predicts his sentence.United States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989) (per curiam); see also Arteca, 411 F.3d at 321. Furthermore, a defendant may not avoid this well-established precedent "by characterizing a mistaken prediction as ineffective assistance of counsel." Sweeney, 878 F.2d at 70.
The waiver of the right to challenge a sentence entered beforeBooker is enforceable, including as to issues created by new judicial decisions which follow entry of a plea agreement.Haynes, 412 F.3d at 38 (dismissing direct appeal despite defense counsel's objection at sentencing to the constitutionality of the Guidelines). The possibility of a change in the law "is simply one of the risks allocated by the parties' agreement." Id. at 39. The "ignorance of future rights is unavoidable and not a basis for avoiding a plea agreement." Id.
Sapienza has not shown that his plea was not voluntary or knowing. He was fully and accurately advised of the maximum term of imprisonment which he faced, and acknowledged that no one, including his own attorney, could predict what sentence would be imposed on him. The allocution established that he fully understood that his entry into a plea agreement waived his right to challenge his sentence so long as the sentence did not exceed 87 months. His attorney's alleged representations to him could have been reasonably understood as nothing more than an opinion about the future course of the law and do not constitute ineffective assistance.
Sapienza has not shown the existence of prejudice either. Sapienza contends that, in the absence of a plea agreement which restricts his ability to attack the sentence that was previously imposed, he may be able to convince this court to impose a lower sentence because of his good deeds, addiction to drugs, new family, and modest personal gain from his crimes. Sapienza does not contend that any of these matters would have permitted a downward departure. He is apparently contending that these matters could qualify him today for a non-guidelines sentence pursuant to 18 U.S.C. § 3553(a) that would be lower than the appropriate guidelines sentence.
Sapienza has not shown the existence of prejudice. The plea agreement conferred on him the benefits of certainty and the limitation of his criminal exposure. Haynes, 412 F.3d at 39. He has not even shown that, but for counsel's inability to predict the future course of the law with absolute accuracy, he would not have entered the plea agreement and pled guilty. See Arteca, 411 F.3d at 321. A self-serving statement about a possible sentence under standards that did not apply at the time he was sentenced is insufficient to show prejudice. See id. at 322.
Conclusion
The petition for a writ of habeas corpus is denied.
SO ORDERED.