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finding that petitioner's ineffective assistance of counsel claim was barred by waiver when petitioner challenged the effectiveness of counsel's representation at sentencing
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Criminal Action No. 98-75, Section "N"
June 23, 2000
ORDER AND REASONS
Before the Court is Edward John Flunker's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Mr. Flunker contends that his sentence was miscalculated because it was premised on an incorrect type of drug and that his counsel was ineffective because he failed to detect this error. in response, the Government argues that claims of Guideline misapplication are not cognizable in a § 2255 motion and that Mr. Flunker waived his collateral review rights as part of a plea agreement. For the following reasons, the Motion is DENIED.
A. BACKGROUND
Pursuant to a plea agreement, Edward Flunker pled guilty on October 14, 1998 to one count of conspiracy to possess with intent to distribute a controlled substance.
On June 23, 1999, the Court sentenced Mr. Flunker to 90 months imprisonment and five years supervised release. In reaching this sentence, the Court accepted the Guideline calculation set forth in the PSR. According to the PSR, Mr. Flunker's crime of conviction carried a mandatory minimum of 10 years imprisonment and, after pertinent adjustments, the Guideline range was calculated to be 87 to 108 months. Because the Guideline range was lower than the statutory minimum, the PSR concluded that 120 months became the Guideline range. The Court rejected Mr. Flunker's three objections to the PSR. Mr. Flunker had argued (1) that a four level enhancement for his role in the offense was improper; (2) that the Court should not consider his conviction for indecent exposure for purposes of determining his criminal history; and (3) that he meets the "safety valve" criteria of USSG § 5C1.2. The Court then accepted the Government's motion for downward departure pursuant to 18 U.S.C. § 3553(e) and USSG § 5K1.1, which resulted in the 90 month term of imprisonment.
On March 31, 2000, Mr. Flunker filed the § 2255 motion now before the Court. Mr. Flunker requests habeas relief on the ground that the sentence imposed on him "was in error in that it was premised upon a misapprehension of the mandatory minimum for the crime of conviction . . .," and is "thus significantly greater than it should be." Mr. Flunker contends, and the Government concedes, that the PSR's conclusions rested on a miscalculation of the type of drug attributed to Mr. Flunker. Specifically, the 301.9 grams of methamphetamine attributed to Mr. Flunker was a mixture, which warrants a minimum five year sentence, but the PSR was calculated as if the 301.9 grams of methamphetamine were pure, which warrants a ten year minimum sentence. Compare 21 U.S.C. § 841(b)(1)(A)(viii) (ten year minimum for 50 grams of pure methamphetamine or 500 grams or more of a mixture containing methamphetamine) with § 841(b)(1)(B)(viii) (five year minimum for 50 grams or more of a mixture containing methamphetamine). Accordingly, the Guideline range should have been 87 to 108 months.
The same counsel who represented Mr. Flunker during the plea negotiations, rearraignment and sentencing prepared and filed Mr. Flunker's § 2255 motion and reply memorandum.
Even with the Guideline miscalculation, the 90 month sentence imposed on Mr. Flunker was within the appropriate Guideline range. Nonetheless, Mr. Flunker and the Government agree that the error was significant in light of the Court's decision to grant the Government's 5K motion. In recognition of the 5K, the Court departed downward 30 months, from 120 to 90 months. An identical departure from the correct Guideline range would have resulted in a sentence of 57 to 88 months imprisonment. Mr. Flunker concedes that he raises this error for the first time in this proceeding and did not present this issue at sentencing or on appeal.
B. LAW AND ANALYSIS 1. Evidentiary Hearing
Upon review of the files and record of the case, the Court determines that Mr. Flunker's claims can be decided on the pleadings, the memoranda and the record, and, therefore, that there is no need for an evidentiary hearing. See 28 U.S.C. § 2255; United States v. Smith, 915 F.2d 959, 964 (5th Cir. 1990) (where the court finds the record "clearly adequate to dispose fairly of the allegations, the court need inquire no further"); Franklin v. United States, 589 F.2d 192, 193 (5th Cir. 1979).
2. Guideline Misapplication
As noted above, Mr. Flunker's first contention is that the Court erroneously calculated the Guideline range for his sentence. However, because he did not raise this issue on appeal, Mr. Flunker cannot do so now, as "[a] district court's calculation under or application of the sentencing guidelines standing alone is not the type of error cognizable under section 2255." United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995), cert. denied 516 U.S. 1165, 116 S.Ct. 1056, 134 L.Ed.2d 201 (1996). See also United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999) ("Section 2255 motions may raise only constitutional errors and other injuries that could not have been raised on direct appeal that will result in a miscarriage of justice if left unaddressed. Misapplications of the Sentencing Guidelines fall into neither category and hence are not cognizable in § 2255 motions.") (internal citation omitted); United States v. Cervantes, 132 F.3d 1106, 1109, reh'g denied (5th Cir. 1998) ("Technical application of the Sentencing Guidelines does not give rise to constitutional issues."); United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam).
Even if his misapplication argument were cognizable in a § 2255 motion, Mr. Flunker would be barred from raising it by his plea agreement. The plea agreement, which was submitted to the Court in the form of a Bryan letter signed by Mr. Flunker, his defense counsel and the Government, provided, inter alia, that:
[e]xcept as otherwise provided in this paragraph, the defendant hereby expressly waives the right to appeal his sentence on any ground, including but not limited to any appeal right conferred by Title 18, United States Code, Section 3742 on the defendant, and the defendant further agrees not to contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under Title 28, United States Code, Section 2255. The defendant, however, reserves the right to appeal the following: (a) any punishment imposed in excess of the statutory maximum, and (b) any punishment to the extent it constitutes an upward departure from the Guideline range deemed most applicable by the sentencing court.
The Fifth Circuit has held that a waiver of post-conviction relief is valid to bar such relief if it is informed and voluntary. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (discussed in detail, infra). In compliance with Wilkes, the Court took steps to ensure that Mr. Flunker understood the plea agreement and its consequences and that he was accepting its terms voluntarily. This is reflected in the following excerpts from the transcript of the rearraignment proceeding:
THE COURT: By pleading guilty you will waive the right to appeal your sentence, except under very limited circumstances. Specifically, you will only be able to appeal: One, any punishment imposed in excess of the statutory maximum. And two, any punishment to the extent it constitutes an upward departure from the applicable guideline range. Do you understand the extent to which you will waive your right to appeal your sentence?
DEFENDANT MR. FLUNKER: Yes, Your Honor.
THE COURT: By pleading guilty, you also waive your right to contest your sentence in a post-conviction proceeding. You understand that you will waive this right by pleading guilty?
DEFENDANT MR. FLUNKER: Yes, Your Honor.
* * *
THE COURT: Do you understand plea agreements are permissible, that you and your lawyer have a duty to disclose the existence and the terms of any such agreement?
DEFENDANT MR. FLUNKER: Yes.
THE COURT: Has there been a plea agreement entered into between you and the Government?
DEFENDANT MR. FLUNKER: Yes, Your Honor.
THE COURT: Is there a written plea agreement signed by you and your lawyer which can be filed into the record?
DEFENDANT MR. FLUNKER: Yes, Your Honor.
THE COURT: All right. Is that the same as the agreement previously furnished to me?
[ASSISTANT UNITED STATES ATTORNEY] MR. THOMSON: Yes, it is, Your Honor. I'll file this into the record.
THE COURT: All right.
MR. THOMSON: All parties have signed it.
THE COURT: All right. Mr. Flunker, does the written plea agreement that you signed adequately state the agreement between you and the Government?
DEFENDANT MR. FLUNKER: Yes, it does, Your Honor.
THE COURT: Has anyone made any promise, other than the plea agreement, other than what is in the plea agreement, to persuade you to plead guilty?
DEFENDANT MR. FLUNKER: No.
THE COURT: Has anyone threatened or forced you to plead guilty, or told you if you do not plead guilty, further charges would be brought against you or other adverse action would be taken against you, or made any other commitments not in the written plea agreement?
DEFENDANT MR. FLUNKER: No, Your Honor.
THE COURT: Has anyone connected with the Government, anyone connected with any law enforcement agency or anyone else at any time made any prediction or promise to you as to what your sentence will be?
DEFENDANT MR. FLUNKER: No, Your Honor.
The Court also asked Mr. Flunker about the quality of his representation:
THE COURT: Have you had ample opportunity to discuss your case with your lawyer?
At the rearraignment, defense counsel testified that he was satisfied that his client was pleading voluntarily with the full knowledge of the consequence of his plea.
DEFENDANT MR. FLUNKER: Yes, Your Honor.
THE COURT: Are you satisfied with the services of your lawyer?
DEFENDANT MR. FLUNKER: Yes, Your Honor.
Following the colloquy described above, the Court found Mr. Flunker's plea to be knowledgeable and voluntary and to have a basis in fact that contained all the elements of the crime. The Court therefore accepted Mr. Flunker's guilty plea and entered a judgment of guilty. However, the Court deferred its decision about accepting or rejecting the plea agreement until after it had an opportunity to consider the pre-sentence report ("PSR"). The Court informed Mr. Flunker that, should it later decide to reject his plea agreement, he would be given an opportunity to withdraw his plea of guilty. On June 23, 1999, the Court accepted the plea agreement and the waiver of Mr. Flunker's § 2255 rights became effective. Therefore, Mr. Flunker is barred from seeking post-conviction relief on the grounds that the Court misapplied the Sentencing Guidelines.
Mr. Flunker suggests one way around the waiver. In his view, the error in sentencing "is the equivalent of an improper upward departure." Because he reserved the right to appeal any punishment to the extent it constitutes an upward departure, Mr. Flunker argues that the Court may consider the error. This argument is fatally flawed in two ways. First, the error in Guideline application did not result in an "upward departure," even though Mr. Flunker has effectively been denied the benefit of the 5K downward departure. Second, even if the error were considered an upward departure, Mr. Flunker reserved the right to appeal an upward departure, but did not reserve the right to contest an upward departure in a post-conviction proceeding, such as the instant § 2255 proceeding. Because he failed to raise this issue on appeal, Mr. Flunker is precluded from raising it now. See Walker, 68 F.3d at 934.
3. Ineffective Assistance of Counsel
In his Reply Memorandum, Mr. Flunker contends that his complaint about the Court's application of the Guidelines is not the type barred byWalker. In Walker, the Fifth Circuit held that, unlike a claim of Guideline misapplication, "a defendant's claim of ineffective assistance of counsel does give rise to a constitutional issue . . .," which may be addressed in a § 2255 motion. 68 F.3d at 934. Mr. Flunker contends that the error in Guideline application here, rather than being an error in the application of the Sentencing Guidelines "standing alone," see id., was of constitutional dimensions because it resulted from ineffective assistance of counsel. Walker notwithstanding, the Court finds that Mr. Flunker's ineffectiveness argument is barred by his waiver of post-conviction relief.
In United States v. Wilkes, 20 F.3d 651 (5th Cir. 1994), the Fifth Circuit first recognized the validity of a waiver of post-conviction relief as part of a plea bargain. Wrote the court, "[a]s a general matter, . . . an informed and voluntary waiver of post-conviction relief is effective to bar such relief." Id. at 934. However, the Court recognized that such a waiver may not bar all claims. For example, a waiver "may not always apply to a collateral attack based upon ineffective assistance of counsel. . . ." Id. (citing United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993), cert. denied, 508 U.S. 979, 113 S.Ct. 2980, 125 L.Ed.2d 677 (1993)).
Some courts within this district appear to have read the Wilkes decision as categorically allowing defendants to raise ineffective assistance of counsel claims in § 2255 motions, despite the presence of a waiver. See, e.g., United States v. Teshima-Jiminez, 1999 WL 600326 (E.D. La. Aug. 5, 1999) (although the defendant had expressly waived his right to file a § 2255 motion, the district court, citing Wilkes, considered defendant's claims that his counsel was ineffective at sentencing for failing to obtain a downward departure and failing to promptly and adequately file objections to the PSR); United States v. Kiefer, 1998 WL 388592 (E.D. La. July 9, 1998) (despite the defendant's waiver of his right to contest his sentence in any post-conviction proceeding, the district court considered defendant's § 2255 claims that he received ineffective assistance of counsel because his attorney did not file objections to the PSR). This Court, however, does not interpret Wilkes so broadly.
In this Court's view, when a defendant waives his right to collaterally attack his sentence, a court may consider claims of ineffectiveness with respect to the plea agreement itself, but may not consider claims of ineffectiveness with respect to his attorney's performance at sentencing. This view is in line with holdings of the Second and Seventh Circuits and is supported by Fifth Circuit jurisprudence.
A claim of ineffectiveness with respect to accepting the plea agreement goes to the validity of the agreement itself, whereas a claim of ineffectiveness with respect to sentencing does not. Because attacks on the validity of a plea agreement are permissible despite a waiver, it makes more sense to consider claims of ineffectiveness with respect to the agreement as a variant of this category of attack rather than to consider a separate category of attacks based on ineffectiveness.
In Mason v. United States, ___ F.3d ___ (7th Cir. 2000), the defendant, Thomas Mason, pursuant to a plea agreement, waived his right to challenge his sentence pursuant to § 2255, and was subsequently sentenced to 151 months imprisonment. Mason then filed a § 2255 petition, requesting that his sentence be vacated due to a denial of due process and ineffective assistance of counsel at sentencing. Specifically, Mason asserted that he would have received a lower sentence had his counsel objected to the amount of drugs attributed to him and to the district court's purported misapplication of the Sentencing Guidelines with respect to its authority to depart. The Seventh Circuit held that Mason had waived his right to assert these claims. The court noted that in Jones v. United States, 167 F.3d 1142 (7th Cir. 1999), it had held a waiver of appellate or § 2255 rights to be enforceable only if it is knowing and voluntary and if the defendant cannot establish a claim of ineffective assistance of counsel in connection with negotiating the plea agreement. Mason, however, challenged neither the voluntariness of his waiver nor the effectiveness of his counsel with respect to the plea negotiations, but merely challenged his attorney's performance with respect to sentencing. "Because the challenge ha[d] nothing to do with the issue of a deficient negotiation of the waiver," the Seventh Circuit held that "Mason ha[d] waived his right to seek post-conviction relief" and affirmed the district court's denial of his § 2255 petition.
The Second Circuit reached a similar conclusion with respect to a waiver of appellate rights in United States v. Djelevic, 161 F.3d 104 (2d Cir. 1998). In that case, the defendant, Rame Pepshi, pursuant to a plea agreement, agreed to waive his right to appeal any sentence within or below the Guideline range stipulated in the agreement. Even though Pepshi was sentenced within the stipulated range, he appealed his sentence, arguing that the sentence should be vacated because he received ineffective assistance of counsel at sentencing given his attorney's failure to seek enforcement of the plea agreement to avoid the use of multiple grouping analysis in calculating his Guideline range. The Second Circuit rejected Pepshi's argument as barred by the waiver. Critical to the court's decision was the fact that Pepshi did not argue that the waiver was not knowing and voluntary or that he received ineffective assistance of counsel in entering the plea agreement, but instead argued solely that he received ineffective assistance at sentencing, a challenge clearly foreclosed by the "plain language of the waiver contained in his plea agreement with the government." 161 F.3d at 106. Importantly, the court ruled that Pepshi could not "dress up" his claim as a violation of the Sixth Amendment when, in reality, he was merely challenging the correctness of his sentence. Id. The Court stated that allowing "a claim of ineffective assistance of counsel at sentencing as a means of circumventing plain language in a waiver agreement" would render the waiver "meaningless" and would deprive the government of the benefit of the plea bargain. Id. ("the Government's motivating purpose, decreased effort and expense of protracted litigation is not well-met if the defendant is permitted to appeal that to which he has agreed") (quotingUnited States v. Rosa, 123 F.3d 94, 97 (2d Cir. 1997)). Accord Blacharski v. United States, ___ F.3d. ___ (7th Cir. 2000) ("Because Blacharski appeals the validity of the plea agreement, the government agrees that it may be reviewed on appeal."); People v. Mingues, 681 N.Y.S.2d 802, 802 (App.Div. 1998) ("while defendant's waiver of his right to appeal does not preclude judicial review of the voluntariness of his plea, it does preclude review of his alleged denial of his right to the effective assistance of counsel except insofar as the alleged ineffectiveness impacted the voluntary nature of his plea") (internal citations omitted).
The Fifth Circuit has not expressly held that a defendant who has waived his § 2255 rights may not attack his counsel's effectiveness at sentencing in a § 2255 motion. Nonetheless, the Court finds that the Fifth Circuit would agree with the Seventh Circuit. First, in Wilkes itself, the defendant, Julius Wilkes, pursuant to a plea agreement, waived his right to appeal his sentence on direct appeal except for an upward departure and agreed not to contest his sentence or the manner in which it was determined in any post-conviction proceeding, including a § 2255 proceeding. After sentence was imposed, Wilkes filed a § 2255 motion, arguing that he received ineffective assistance of counsel at the plea negotiating, sentencing, and appellate stages. The Fifth Circuit considered only "the appropriateness of the waiver" and whether Wilkes' sentence was an upward departure which could be appealed under the terms of the agreement. The court upheld the waiver and determined that Wilkes' sentence did not result in an upward departure, but did not address Wilkes' claim that his counsel was ineffective at sentencing for failing to object to alleged inaccuracies in the PSR. Thus, the Fifth Circuit's statement in Wilkes that "a waiver [of post-conviction rights] may not always apply to a collateral attack based upon ineffective assistance of counsel" does not appear to exempt claims of ineffectiveness at sentencing from the scope of a valid waiver. Instead, it appears to acknowledge that a defendant may attack only the validity of the waiver itself.
A year after Wilkes, the Fifth Circuit had an opportunity to decide whether a defendant could pursue a claim of ineffective assistance of counsel on appeal despite the fact that he had waived his appellate rights. In United States v. Henderson, 72 F.3d 463 (5th Cir. 1995), as part of a plea agreement, the defendant waived the right to appeal his sentence. Subsequently, the district court denied the defendant's motion to withdraw his plea and sentenced him to a fifteen year prison term. The defendant filed a timely notice of appeal, which the Government moved to dismiss for want of jurisdiction based on the defendant's waiver. CitingWilkes and a Fourth Circuit case, United States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993), the Fifth Circuit concluded that "dismissal of an appeal based on a waiver in the plea agreement is inappropriate where the defendant's motion to withdraw the plea incorporates a claim that the plea agreement generally, and the defendant's waiver of appeal specifically, were tainted by ineffective assistance of counsel." 72 F.3d at 465. Thus, the court held that "the waiver of appeal in Henderson's plea agreement does not preclude this appeal, and . . . we have jurisdiction to entertain Henderson's challenge to the district court's denial of his motion to withdraw the plea." Id.
Most recently, the Fifth Circuit reached a similar decision in United States v. Castano, 211 F.3d 871 (5th Cir. 2000). In Castano, the defendant, Alfonso Castano, pursuant to a plea agreement, waived his right to appeal. At sentencing, however, Castano became aware for the first time that, contrary to his counsel's assurances, his sentence would be enhanced because of the presence of a gun in the closet of a co-defendant's bedroom. Going into the plea negotiations, Castano's counsel had "positively affirmed [to him] that no sentence enhancement would befall him as a result of the firearm's presence," id. at 873, and the Fifth Circuit found that Castano had been improperly informed about the sentence-enhancement issues. Id. at 875. The court held that, "because his proposed ground of appeal went to the effectiveness of the plea, the appeal was not barred." Id.
Thus, Wilkes, Henderson and Castano can best be read as being in line with Mason and Dielevic as supporting the proposition that, where a defendant waives his right to collaterally attack his sentence, a court may consider claims of ineffectiveness with respect to the plea agreement itself, but may not consider claims of ineffectiveness with respect to his attorney's performance at sentencing. Because Mr. Flunker's waiver was knowing and voluntary and because Mr. Flunker has not challenged his counsel's performance with respect to the plea negotiations, his claims of ineffective assistance of counsel at sentencing are barred.
Because the Government concedes that a mistake was made in sentencing, an equitable argument could be made that the Court should disregard the waiver and re-sentence Mr. Flunker. However, in accepting the benefits of the plea agreement, Mr. Flunker accepted the risk that he would not be able to challenge a miscalculated sentence. Ignoring the waiver based on the equities could encourage a flood of litigation and could dissuade the Government from entering into plea bargains, as it would be faced with the exact effort and expense of protracted litigation that it sought to avoid by entering the agreement.
C. CONCLUSION
The Court finds that Mr. Flunker has waived his right to contest his sentence in any post-conviction proceeding and that Mr. Flunker does not challenge the validity of his plea agreement. Accordingly,IT IS ORDERED that Edward John Flunker's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is DENIED.