Opinion
Nos. 01-3076-KHV, 99-20055-KHV
March 15, 2002
MEMORANDUM AND ORDER
On August 30, 1999, Robert J. Snitz entered a guilty plea to charges of possession with intent to distribute 213.6 grams of cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1). He now seeks to overturn his conviction, alleging that he did not knowingly enter his guilty plea, that the search of his home was illegal and that he had ineffective assistance of counsel. This matter comes before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. # 37) filed March 2, 2001. Having considered defendant's claims in light of the evidence presented at an evidentiary hearing which the Court conducted on February 4, 2002, the Court finds that defendant's motion should be overruled.
Factual Background
Defendant alleges the following facts: At 2:30 a.m. on June 2, 1999, police officers responded to a disturbance report of shots fired at 4717 Leavenworth Road, Kansas City, Kansas. Defendant, who had been asleep, answered the door in pajamas and a robe. He closed the door and left the entryway, then returned and opened the door again. When he re-opened the door, police officers had their weapons drawn. They interrogated him about the alleged shots and disturbance and demanded entry into the residence. During a warrantless search of one of defendant's bedrooms, officers found a rock of crack cocaine, a crack pipe, a syringe and a pistol. Officers contacted the Vice and Narcotics Unit, which obtained a search warrant based on the items found during the warrantless search. During the second search of the house and back yard, authorities found 213.6 grams of crack cocaine.
In his Section 2255 brief, defendant states that the officers forced their way into his home and that he did not consent to the entry. During the plea colloquy, however, the government stated that defendant allowed the officers into his home and defendant did not disagree with this characterization of the incident.
On July 8, 1999, a one-count indictment charged defendant with possession and intent to distribute crack cocaine in violation of 21 U.S.C. § 841(1). The crime carried a sentencing range of 10 years to life imprisonment. See 21 U.S.C. § 841(b). Defendant retained Jeffrey M. Goodwin and Brent R. Hankins to represent him. On August 30, 1999, defendant entered a plea of guilty. In return, the government agreed to recommend a sentence at the low end of the guideline range, and to investigate the possibility of a downward departure for substantial assistance under United States Sentencing Guideline § 5K1.1. On February 28, 2000, the Court determined that defendant had an offense level of 33 and a criminal history category of II, which carried a sentencing range of 151 to 188 months in custody. On the government's motion for substantial assistance, the Court departed downward from the guideline range and sentenced defendant to 97 months in prison.
Defendant now seeks relief under 28 U.S.C. § 2255. From defendant's motion and his accompanying affidavit, defendant argues that his plea was not knowing and voluntary because counsel assured him that he would receive a sentence no longer than 60 months. At the hearing, defendant also said that counsel erroneously promised him that he would be eligible for a drug treatment program that would allow him to receive further time off his sentence. Defendant also specifically alleges that (1) counsel was ineffective because he did not challenge the legality of the warrantless search or timely file a notice of appeal of defendant's sentence and (2) the search which led to the discovery of the drugs in his home was illegal.
In his Section 2255 brief, defendant also seems to argue that his plea was not knowing and voluntary because he believed that it was conditioned on the outcome of a motion to suppress. The Court notes, however, that no motion to suppress was on file at the time of defendant's plea. At the Section 2255 hearing, defendant clarified the issue. The Court now understands defendant's argument to be that counsel was ineffective for failing to file a motion to suppress.
At various times defendant has argued that counsel was also ineffective because either Goodwin or Hankins was not licensed to practice before the District Court of Kansas. On November 6, 2001, the Court found this argument without merit as to Goodwin who was admitted to practice before the District of Kansas on April 25, 1997 and has been a member in good standing since that date. See Order (Doc. #57). At the Section 2255 evidentiary hearing, Hankins testified that he was admitted to the Kansas federal bar in 1997 through a reciprocity agreement that exists between the Western District of Missouri and the District of Kansas. Goodwin served as his sponsor for reciprocal admission. According to the Court's records, Hankins was admitted to the District of Kansas on March 2, 1998-well before he represented defendant. Defendant's argument that his attorneys were ineffective because they were not licensed to practice before the Court is therefore without merit.
To resolve contested factual issues, the Court held an evidentiary hearing in this matter on February 4, 2002. Defendant testified about counsel's failure to file a suppression motion, stating that he "brought up" the possibility of suppression because he believed that he did not voluntarily give the police permission to search his home. Defendant admitted that he wanted to get the best possible deal on his plea, however, and that he left the filing of a suppression motion to the discretion of his attorneys. Defense counsel Goodwin and Hankins testified that they believed defendant would get a better deal if they did not pursue pretrial motions. Hankins also testified that he did not believe defendant would have prevailed on a suppression motion.
Defendant also testified about counsel's alleged guarantee that he would not receive a sentence longer than 60 months and that he would be eligible for a drug rehabilitation program that would reduce his sentence. According to defendant, his attorneys said that "as far as they knew [he] wouldn't do over three or four years." Defendant also testified that his attorneys stated that he "wouldn't do more than three or four years, possibly 60 months tops." Defendant admitted that the Court told him that his crime carried a 10 year minimum prison sentence and he remembered the plea colloquy "quite clearly." Defendant testified that his attorneys told him that he would be eligible for a drug treatment program that would reduce his sentence by a year. According to defendant, he in fact is eligible for the drug treatment program, but he is not eligible for a reduction in sentence based on his participation.
Hankins testified that he told defendant that his crime carried a mandatory minimum of ten years in prison and that it was up to the Court's discretion to determine how much to depart from the minimum sentence. Hankins denied any prediction regarding how much the Court might depart downward, but he may have told defendant that he would seek a sentence of 27 months. He admitted that he might have discussed with defendant the possibility that he could participate in a drug treatment program and potentially receive time off of his sentence. Hankins denied telling defendant that he would definitely be given time off. Goodwin testified that he might have told defendant that three to five years was a sentencing goal that he would work toward, but that he did not make any guarantees or promises.
At the time of sentencing, Hankins in fact did seek a 27 month sentence.
Defendant testified that immediately after his sentencing, while he was leaving the courtroom, he told his attorneys that he wanted to appeal his sentence. Defendant later attempted to call Hankins, but his office would not accept his calls from prison. Hankins testified that defendant never told him that he wanted to appeal and that he did not ask defendant if he wanted to do so. Defendant alleges that he also spoke with Goodwin, who told him that he did not have anything to appeal but said that he would look into it. According to defendant, Goodwin never got back to him. Goodwin testified that he had said that he would handle a social security appeal for defendant (which has since been resolved) but not an appeal of his criminal sentence. Goodwin testified that he would find it highly unusual for a client to appeal a guilty plea. During argument, defendant's present attorney admitted that defendant would not have prevailed on appeal on a suppression motion or an argument that the Court failed to further depart downward.
Hankins testified that his secretary will not accept calls from prisoners unless he is actually in the office and prepared to take the calls.
Legal Standard
The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must show a defect in the proceedings which resulted in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974).
Analysis
To establish ineffective assistance of counsel, defendant must show that the performance of counsel fell below an objective standard of reasonableness, and that the deficient performance was prejudicial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudicial performance defendant must 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. Id. at 694. A court need not address whether counsel's performance was deficient if it is easier to dispose of the ineffectiveness claim on the ground that even if there was deficient performance, defendant can not establish that it was prejudicial. See United States v. Jones, 852 F.2d 1275, 1277 (10th Cir. 1988); United States v. Pappert, 45 F. Supp.2d 1231, 1236 (D.Kan. 1999).
I. Guilty Plea
Defendant seeks to withdraw his guilty plea. He specifically alleges that counsel assured him that he would not receive more than 60 months in prison and that he would be eligible for a drug treatment program that would further reduce his sentence.
To show ineffective assistance in connection with a guilty plea, defendant must prove two elements. First, he "must show that counsel's representation fell below an objective standard of reasonableness." Hill v. Lockhart, 474 U.S. 52, 57 (1985) (quotations and citations omitted). Second, he must show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59.
Regarding defendant's allegation that he would not have pled guilty but for counsel's assurances regarding his sentence, "if an attorney recklessly promises his client that a specific sentence will follow upon a guilty plea, or otherwise unfairly holds out an assurance of leniency in exchange for a confession of guilt, the question may arise whether such assurances were coercive, or whether such representation may be deemed constitutionally ineffective." Wellnitz v. Page, 420 F.2d 935, 936 (10th Cir. 1970). Defendant alleges that he received 97 months in prison when his attorneys promised him no more than 60 months imprisonment and that he was ineligible for a reduction in time for participation in a drug treatment program when his attorneys promised him that he would receive a sentence reduction for participating in the program.
The Court finds that Goodwin and Hankins did not recklessly promise defendant a specific amount of time in prison. Their testimony on this point was unequivocal. They swore that although they might have told defendant that they would seek a sentence of three or four years, they did not promise that he would receive such a sentence if he pled guilty, or that he would receive time off for participation in a prison drug rehabilitation program. The testimony by Goodwin and Hankins that they did not promise defendant a specific sentence is credible. Hankins' testimony that he did not guarantee defendant a reduced sentence for participation in a drug treatment program is also credible. In his plea petition, defendant swore that he had received no promises aside from those in the petition itself. See Petition To Enter Plea Of Guilty And Order Entering Plea (Doc. #17) filed August 30, 1999. Counsel did tell defendant that they would seek a certain sentence and they may have said that based on their experience, as far as they knew, defendant would receive that sentence. That is a far cry, however, from guaranteeing that defendant would receive a specific sentence. The representation by Goodwin and Hankins did not fall below an objective standard of reasonableness; they did not recklessly promise defendant that if he pled guilty he would receive a specific sentence or time off for participation in a drug treatment program.
The exact language of the plea petition is:
(23) I offer my plea of "GUILTY" freely and voluntarily, and further state that my plea of guilty is not the result of any force or threats against me, or of any promises made to me other than those noted in this petition. I further offer my plea of `GUILTY' with full understanding of all the matters set forth in the Indictment and in this petition, and in the certificate of my attorney which is attached to this petition.
. . .
(25) I swear that I have read, understood, and discussed with my attorney, each and every part of the Petition to Plead Guilty, and that the answers which appear in every part of this petition are true and correct.
Petition To Enter Plea Of Guilty And Order Entering Plea (Doc. #17) at 6.
The Court does not disbelieve defendant's allegation that his attorneys predicted a sentence from three to five years. An erroneous sentence estimate by counsel, however, does not render a plea involuntary. See Wellnitz, 420 F.2d at 936 (plea voluntary even though counsel told defendant he would receive 25 years and he received sentence of 100 years); see also Fields v. Gibson, 277 F.3d 1203, 1213-14 (10th Cir. 2002) (attorney's advice that acceptance of blind guilty plea would lessen chance of death penalty not ineffective assistance even though defendant received death penalty); United States v. Estrada, 849 F.2d 1304, 1307 (10th Cir. 1988) (not ineffective assistance when counsel told defendant he would not get much of a sentence and he received 12 years in prison). Goodwin and Hankins correctly informed defendant that his crime carried a mandatory minimum of ten years imprisonment, and that they would seek a downward departure for substantial assistance that would reduce his sentence to three to five years. Defendant did receive a downward departure, although not to that extent. The Court's failure to depart downward to three to five years does not render the representation of defense counsel constitutionally defective. The mere fact that the ultimate amount of the downward departure was not as great as counsel had predicted does not rise to the level of ineffective assistance of counsel. See Figueroa v. United States, No. 91-1047-PKL, 1993 WL 88213 (S.D.N.Y. Mar. 24, 1993) (counsel's prediction of 60-120 month sentence based on downward departure not ineffective assistance when sentence was ultimately 210 months); see also United States v. Walton, No. 95-20086-JWL, 2000 WL 1278487 (D.Kan. July 5, 2000) (counsel not ineffective when government failed to move for downward departure as counsel had predicted). The fact that counsel's sentence prediction was off by roughly three years is not a basis to vacate defendant's guilty plea. See United States v. Cruce, No. 97-3167-DES, 1997 WL 557382 (D.Kan. Aug. 14, 1997) (counsel not ineffective for predicting sentence of 36-47 months when defendant actually sentenced to 168); United States v. Marsh, 733 F. Supp. 90 (D.Kan. 1990) (possibility that counsel told defendant his sentences would run concurrently instead of consecutively not ineffective assistance; sentence was nine years instead of three); Kendrix v. Carter, No. 88-3079-S, 1989 WL 145785 (D.Kan. Oct. 30, 1989) (attorney's prediction of probation not ineffective when defendant was actually sentenced to five to 20 years imprisonment).
In addition, defendant has not shown that he would have gone to trial if he had known that he was going to receive a 97 month sentence. While defendant claims that counsel represented that he would receive only 60 months at the most, and that he was unaware that he could receive a 97 month sentence, he signed a plea agreement which clearly states in paragraph 10, "My lawyer informed me that the plea of "GUILTY" could subject me to a mandatory minimum sentence of not less then 10 years imprisonment . . ." Petition To Enter Plea Of Guilty And Order Entering Plea (Doc. #17) filed August 30, 1999. In addition, during the plea colloquy, the Court made it crystal clear that the mandatory minimum was 10 years and that any downward departure rested within the discretion of the Court. See Transcript (Doc. #51) filed July 23, 2001 at 4:19 to 5:23. At the hearing, defendant admitted that he heard the Court's discussion and that he remembered it "quite clearly." Essentially, however, defendant discounted what the Court told him in favor of his attorneys' predictions — even when the Court and his attorneys both told him that discretion in sentencing lay with the Court alone. The record supports a finding that defendant knew the consequences of his plea and the minimum imprisonment time. See Fields, 277 F.3d at 1214 (death row inmate's plea voluntary even though attorney advised him of slim chance of death penalty when court made possibility of death penalty clear during plea colloquy); United States v. Gigley, 213 F.3d 509, 517 (10th Cir. 2000) (guilty plea voluntary when agreement and plea discussion clearly stated minimum imprisonment time). Defendant cannot show that counsel's erroneous sentence predictions were prejudicial and prevented him from making a knowing and voluntary plea.
II. Ineffective Assistance Of Counsel A. Failure To File Suppression Motion
Defendant alleges that counsel's failure to challenge the legality of the warrantless search of his home constitutes ineffective assistance of counsel. As an initial matter, the government argues that defendant's guilty plea waives constitutional challenges to his arrest and the evidence procured by the government against him.
A voluntary guilty plea waives all non-jurisdictional defenses and challenges to an inmate's conviction. See United States v. Davis, 900 F.2d 1524, 1525-26 (10th Cir. 1990). As the Tenth Circuit previously noted:
The reason for this rule is well-established. A guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.
Id. at 1526 (citing Tollett v. Henderson, 411 U.S. 258, 267 (1973)).
Since defendant has entered a plea of guilty, "the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary." See United States v. Cockerham, 237 F.3d 1179, (10th Cir. 2001) (citing United States v. Broce, 488 U.S. 563, 569 (1989)). As stated above, defendant's guilty plea was counseled, knowing and voluntary. Defendant has therefore waived this challenge.
Furthermore, defendant admitted at the hearing that he wanted to get the best deal possible in his plea and that he left the filing of a suppression motion to the discretion of his attorneys. Defense counsel testified that they believed defendant would get a better deal if they did not pursue pretrial motions-particularly in light of the fact that they did not consider them to be potentially meritorious. Decisions concerning trial strategy, such as the filing of motions, only constitute ineffective assistance of counsel if they are completely unreasonable, not merely wrong, so that they bear no relationship to a possible defense strategy. See Hatch v. State of Okla., 58 F.3d 1447, 1459 (10th Cir. 1995). Counsel's failure to file a motion to suppress is not de facto ineffective assistance of counsel. See Berrien v. Shanks, 149 F.3d 1190, 1998 WL 327857, at *1 (10th Cir. June 18, 1998) (habeas relief not granted on claim that failure to file suppression motion was unreasonable trial strategy); see also Smith v. Smith, 166 F.3d 1215, 1998 WL 764761, at *3 (6th Cir. Oct. 19, 1998) (failure to file suppression motion not ineffective assistance of counsel when part of trial strategy); Walker v. McGinnis, No. 99-3490-RWS, 2000 WL 298916, at *7 (S.D.N.Y. Mar. 21, 2000) (decision to not file motion to suppress reasonable in light of factual record). In this case, counsel's decision to forego filing a motion to suppress, in order to ensure the best possible plea agreement, was not an unreasonable strategy. Defendant cannot establish deficient performance under Strickland and the Court declines to vacate his sentence on this ground.
B. Failure To Timely File Notice Of Appeal
Defendant next asserts that counsel's failure to timely appeal his sentence constitutes ineffective assistance. Defendant alleges that based on the illegal search and the fact that the Court had imposed a sentence longer than five years, he told his attorneys that he wanted to appeal. "An ineffective assistance claim based upon counsel's failure to file a notice of appeal, like any other ineffective assistance claim, must be judged in accordance with the two-pronged test described in Strickland, 466 U.S. at 687-88, 694, which requires the defendant to show that counsel's representation fell below an objective standard of reasonableness and that the defendant was prejudiced by counsel's deficient performance." United States v. Crowell, ___ F.3d ___, 2001 WL 845242, at *2 (10th Cir. July 26, 2001) (citing Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000)). It is well established that "a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Roe, 528 U.S. at 477 (citing Rodriquez v. United States, 395 U.S. 327 (1969)); cf. Peguero v. United States, 526 U.S. 23, 28 (1999)).
Defendant actually states that he wanted to appeal the fact that the Court sentenced him to more than ten years of imprisonment, but his sentence was only 97 months imprisonment followed by five years of supervised release.
The government submits a letter from defense counsel which states that defendant never asked him to file a notice of appeal. Defendant disagrees. At the hearing, defendant gave credible testimony that immediately following his sentencing, he told his attorneys he wanted to appeal his sentence. Even so, defendant cannot establish prejudice under the second prong of Strickland, because he would not have won either of his two arguments on appeal. The general rule is that "[w]hen an attorney fails to file a direct appeal without defendant's express waiver or abandonment of his right to appeal, defendant is entitled to relief without consideration of the issues he seeks to raise because prejudice is presumed." United States v. Brown, 68 F. Supp.2d 1246, 1248 (D.Kan. 1999) (citing Rodriquez v. United States, 395 U.S. 327, 329-30 (1969); Romero v. Tansy, 46 F.3d 1024, 1030-31 (10th Cir. 1995)). In this case, however, the presumption of prejudice is defeated because defendant's present attorney admitted that an appeal on either issue would have been futile.
III. Warrantless Search
Defendant also seeks to establish the merit of his suppression argument, by asserting that the warrantless search of June 2, 1999 was illegal and that the Court should grant an evidentiary hearing to determine whether the narcotics and drug paraphernalia seized during the search should be suppressed. As stated above, however, defendant's decision to plead guilty waived this argument. See Davis, 900 F.2d at 1525-26. Defendant's argument is without merit.
IT IS THEREFORE ORDERED that defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. # 37) filed March 2, 2001 be and hereby is OVERRULED.