Opinion
Criminal Action No. 01-177, Section "K"
December 13, 2002
ORDER AND REASONS
Pending before the Court are a Motion for Discovery Pursuant to Rule 6(b) (Doc. 32) and a Motion under 28 U.S.C. § 2255 to Vacate, set Aside or Correct Sentence (Doc. 36) filed by Percy Francois, Jr. ("Francois"). Having reviewed the pleadings, memoranda, exhibits and the relevant law, the Court finds no merit in the § 2255 motion and thus the discovery motion is rendered moot.
On June 29, 2001, Francois was indicted by a Grand Jury in a one-count indictment which charged the defendant and his co-defendant Willie Lee Sibley, Jr., to a conspiracy to knowingly and intentionally possess with the intent to distribute more than five kilograms of cocaine hydrochloride, in violation of 21 U.S.C. § 841 (a)(1) and 846. On July 6, 2001, Francois was arraigned and entered a plea of not guilty. The Assistant United States attorney then provided full discovery to Francois' counsel of record. This discovery included, but was not limited to access to the audiotapes and videotapes in this investigation.
On August 4, 2002, Francois pled guilty as charged pursuant to a plea agreement. In that plea agreement the defendant agreed to plead guilty to a single count indictment, and the Government agreed not to charge the defendant as being a multiple offender under 21 U.S.C. § 851. It clearly stated in the plea agreement that Francois faced a minimum mandatory sentence of 10 years and was facing the possibility life imprisonment. Francois signed that plea agreement.
At the time of sentencing, the Court required the factual basis to be read in its entirety to the defendant. Francois signed the factual basis as well. The factual basis stated in its entirety:
In June 2001, Special agents of the Drug Enforcement Administration (DEA) conducted interviews with a confidential informant (CI), and discovered that an individual by the name of WILLIE LEE SIBLEY was attempting to distribute large amounts of cocaine throughout the New Orleans area. during this time, the agents monitored meetings and recorded telephone calls between the CI and SIBLEY. SIBLEY expressed an interest in purchasing eight (8) kilograms of cocaine from the CI, and the CI agreed to provide the cocaine, if SIBLEY could produce enough money up front to ensure that he would be able to purchase the full amount. The amount of money agreed upon was originally $50,000, then later reduced to $25,000.
On June 25, 2001, the CI under the supervision of agents, contacted SIBLEY to arrange the delivery of the cocaine. SIBLEY informed the CI that one of his associates, later identified as PERCY FRANCOIS, would be brining the $25,000 in cash. during surveillance, the agents observed PERCY FRANCOIS arrive at the meeting place and park next to the CI's vehicle. The CI, SIBLEY and FRANCOIS met briefly and agreed to make the exchange at their present location. At that time, the CI and FRANCOIS entered the CI's vehicle and proceeded with the transaction, while SIBLEY remained in the parking lot acting as a "look-out" during the exchange.
FRANCOIS retrieved a bag from his vehicle containing $25,000 in U.S. currency and handed it to the CI. The CI then examined the money, and handed FRANCOIS a bag containing eight (8) kilogram size packages of "sham" cocaine. As FRANCOIS took possession of the cocaine and turned to place it in his vehicle, he was placed under arrest. SIBLEY, who was standing several feet away during the transaction, was also arrested.
At trial the government would present the audio tapes of the calls between the CI and Sibley, the video tape that was made by DEA agents of the money transaction and the testimony of the DEA special agents.
Thus, in the factual basis, it was made clear that the drug conspiracy was for the purchase of eight kilograms of cocaine; that the front money initially agreed to was $50,000, and then later reduced to $25,000; and that "sham cocaine" was used in the transaction.
The Court subsequently questioned the defendant under oath as to whether he understood the evidence and facts detailed in the charge and whether the factual basis was correct. Francois answered affirmatively under oath to both questions. Also, at the time of sentencing, Francois was informed that based on the plea that he was waiving his right to appeal with some exceptions, including ineffective assistance of counsel, which Francois acknowledged under oath. Francois also swore under oath that he was not influenced, induced, persuaded in any manner to plead guilty because of any promises of leniency made by anyone or any threats made by anyone. He also swore under oath that his attorney did not tell him specifically what sentence the Court would impose.
Francois was sentenced to 175 months with five years of supervised release on November 15, 2001.
Francois first filed the Motion for Discovery Pursuant to Rule 6(b) on November 5, 2002. He subsequently filed the instant § 2255 motion on November 12, 2002. In a 23 page motion, he seeks post-sentencing relief. The motion alleges ineffective assistance of counsel based on Francois's counsel's (1) failure to conduct discovery, (2) failure to file a motion to dismiss the indictment, (3) failure to challenge Government threat with respect to enhancement, (4) erroneously advising Francois to enter into guilty plea not understanding the nature of his charges, (5) failure to object to errors in the PSR. Thus, Francois contends that he received ineffective advice and would not have pled guilty to the charge of conspiracy to possession with intent to distribute more than 5 kilograms of cocaine hydrochloride in violation of 21 U.S.C. § 841 (a)(1)(b)((A) and 846.
In the printed § 2255 form, he synopsises the grounds for this motion as:
(1) he was willing to proceed to trial, but his lawyer told him that if he went to trial and was found guilty, he would be given a life sentence, and that if he plead guilty he "could" only receive 10 years, and that he would be out in 5 to 6 years; and
(2) he was denied effective assistance of counsel because his lawyer "did not file any motions, for discovery did not request lab reports, the filing of incorrect charges against me, faulty plea negotiations, preparations of the (PSR), Rule 11 proceedings the amount of money involved to purchase the (SHAM) cocaine, and the amount of cocain (SHAM) used to enhance" his sentence.
All of these claims, however, are based on three key assumptions that are incorrect. The assumptions are:
(1) that the elements of the crime of conspiracy to possess with the intent to distribute cocaine were not met because sham cocaine was used in the transaction,
(2) that the reduction in the amount required for the "front money" for the purchase of eight kilograms of cocaine from $50,000 to $25,000 demonstrated that the defendants were not purchasing 8 kilograms of cocaine and indicates some kind of "entrapment"; and
(3) that the Government's threat of charging the defendant as a multiple offender under 21 U.S.C. § 851 (a) was without force.
The Court will first address the issue as to whether the waiver of his appeal rights precludes the arguments raised.
Waiver
The first issue the Court must address is whether Francois has waived his right to pursue relief under § 2255. As stated in United States v. White, 307 F.3d 336 (5th Cir. 2002):
. . . [a] defendant can waive his right to file as section 2255 motion, although such a waiver might not apply to an ineffective assistance of counsel claim. United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). We also note that a defendant may always avoid a waiver on the limited grounds that the waiver of appeal itself was tainted by the ineffective assistance of counsel. United State v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995).Id. at 338. In his Motion to Vacate at 3, Francois raises claims of ineffective assistance of counsel during all stages of his court proceedings. However, as stated by the United States Court of Appeals for the Fifth Circuit, "an ineffective assistance of counsel argument survives a waiver of appeal only when the claimed assistance directly affected the validity of that waiver or the plea itself." White, 307 F.3d at 343 (5th Cir. 2002). Thus, the Court will not consider claims regarding the attorney's alleged ineffectiveness at sentencing. The Court will then focus on the validity of Francois' waiver. United States v. Anderson, 2002 WL 1610964 (E.D. La. July 19, 2002). To that extent, the Court finds that the § 2255 petition is not barred and will now turn to merits of Francois' ineffective assistance of counsel argument.
Ineffective Assistance of Counsel
In order for Francois to succeed on this claim, he must demonstrate both (1) that his counsel's performance was deficient; and (2) that his counsel's deficient performance prejudiced the outcome of his trial.Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984) As stated in United States v. Anderson, 2002 WL 161964 (E.D. La. July 19, 2002):
To establish a deficient performance, petitioner must show that his counsel's representation "fell below an objective standard or reasonableness." Jones v. Jones, 163 F.3d 285, 301 (5th Cir. 1993) . . . The Court makes every effort to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel's perspective at the time of trial.
The second prong of Strickland requires petitioner to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. If [petitioner] fails to establish either deficient performance or actual prejudice, the Court may dispose of the claim without addressing the other prong. Id. at 697, 104 S.Ct. at 2069.
In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Court applied the Strickland test to cases involving guilty pleas. In the guilty plea scenario, a petitioner must prove not only that his attorney actually erred, but also that he would not have pleaded guilty but for the error. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994). Under the first prong of the Strickland/Hill test, if a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, "the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Hill, 474 U.S. at 56, 106 S.Ct. at 369 (internal quotes omitted). To meet the prejudice prong of the test, a petitioner must establish that but for his counsel's alleged erroneous advice, he would not have pleaded guilty but would have insisted on going to trial. Id. at 59, 106 S.Ct. at 370; See also Carter v. Collins, 918 F.2d 1198, 1200 (5th Cir. 1990).Id. at *3 (some internal quotes omitted).
Francois fails to meet his burden of proof under Strickland/Hill analysis. With respect to Francois' first contention that the use of the sham cocaine somehow would have been grounds for relief and that his counsel erred in not pursuing some defense in that light, there is no basis for this position. In a drug conspiracy under 21 U.S.C. § 846, the government must prove that "(1) there was an agreement between two or more persons to possess controlled substances with the intent to distribute; (2) the defendant knew of the conspiracy and intended to join it; and (3) the defendant voluntarily participated in the conspiracy."United States v. Hass, 150 F.3d 443, 447 (5th Cir. 1998). "The crime of conspiracy is complete upon the formation of the illegal agreement. The fact that the cocaine which they thought they were receiving was a fake substance does not affect their intent to obtain the genuine article."United States v. Pietri, 683 F.2d 877, 879 (5th Cir. 1982). The fact that sham cocaine was used does not effect the validity of the charge against the defendant or his plea. Under Strickland/Hall, his attorney did not err, thus a claim based on this factor is meritless.
Likewise, as is set out in the Fifth Circuit jury charge with respect to a drug conspiracy:
One may become a member of a conspiracy without knowing all the details of the unlawful scheme or the identities of all the other alleged conspirators. If a defendant understands the unlawful nature of a plan or scheme and knowingly and intentionally joins in that plan or scheme on one occasion, that is sufficient to convict him for conspiracy even though the defendant had not participated before and even though the defendant played only a minor part.
The government need not prove that the alleged conspirators entered into any formal agreement, nor that they directly stated between themselves all the details of the scheme. Similarly, the government need not prove that all of the details of the scheme alleged in the indictment were actually agreed upon or carried out. Nor must it prove that all of the persons alleged to have been members of the conspiracy were such, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives.
Pattern Jury Charges (Criminal Cases), Substantive Offense 2.89 (1998). Thus, the claims concerning his not being on the tapes discussing the 8 kilograms and the fact that the $50,000 was reduced to $25,000 as "front money". Francois signed a factual basis that clearly stated that the amount, $25,000, was only "front money." Francois was given ample opportunity to state that the factual basis was incorrect or that he was not involved in a scheme to purchase 8 kilograms of cocaine. He did not do so. Great weight is generally given to a defendant's statements at the plea colloquy rather than a defendant's later, self serving statements.United States v. Cothran, 302 F.3d 279 (5th Cir. 2002). The arguments raised by defendant are circuitous and nonsensical in light of the overwhelming evidence of the sting operation. No error was committed by Francois' counsel in this regard.
Finally, any contention that the "threat" by the Government with respect to seeking to charge him as a multiple offender under 21 U.S.C. § 851 should have been ignored by or countered by Francois' counsel or that that "threat" erroneously convinced him to plea, is likewise invalid. The defendant pled guilty on January 17, 1989 and had sentence of 3 years in jail imposed for (1) of being a felon in possession of a firearm, (2) of simple possession of cocaine and (3) possession of cocaine. On October 10, 1997, sentence was imposed for simple escape and possession of cocaine. Thus, there were four convictions that could have been the basis for charging the defendant as a multiple offender. The Government did not do so. Counsel for Francois did not err in this manner.
Thus, the Court finds that petitioner has failed to demonstrate that counsel's advice was not within the range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at 56, 106 S.Ct. at 369. As such, the effective assistance of counsel claims fails.
As the Court finds the § 2255 Motion without merit, the Motion for Discovery is likewise without merit. Simply put, the basis upon which plaintiff seeks relief, and therefore, any hunting expedition he may be seeking, is without reason. The Court will deny that motion as well. Accordingly,
IT IS ORDERED that the Motion under 28 U.S.C. § 2255 to Vacate, set Aside or Correct Sentence (Doc. 36) is DENIED. IT IS FURTHER ORDERED that the Motion for Discovery Pursuant to Rule 6(b) (Doc. 32) is DENIED.