Opinion
Case No. 2:03-CV-842, Crim. No. 2:00-CR-00050(3).
August 29, 2006
ORDER and REPORT AND RECOMMENDATION
Petitioner, a federal prisoner, brings the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. On May 19, 2005, all of petitioner's claims, with the exception of his allegation in claim two that his attorney prevented him from pleading guilty to the indictment without providing substantial assistance to the government, were dismissed. Doc. No. 160. Counsel was appointed on petitioner's behalf, and on March 29, 2006, an evidentiary hearing was held. Post-hearing memoranda have been filed by both petitioner and respondent.
For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
I. PROCEDURAL HISTORY
The facts and procedural history are summarized in the prior Report and Recommendation, March 17, 2005, Doc. No. 156. The instant § 2255 petition involves petitioner's July 24, 2000 convictions after a jury trial on two Hobbs Act violations, in violation of 18 U.S.C. § 1951, and one count of brandishing a firearm during commission of those crimes, in violation of 18 U.S.C. § 924(c). Petitioner was sentenced to an aggregate term of 162 months imprisonment. On October 11, 2002, his convictions and sentence were affirmed by the United States Court of Appeals for the Sixth Circuit. United States v. Taniguchi, 49 Fed.Appx. 506, unpublished, 2002 WL 31371978 (6th Cir. October 11, 2002).II. MERITS
The sole claim remaining for this Court's consideration is petitioner's allegation in claim two that he wanted to plead guilty but that his attorney refused to permit him to do so. As previously discussed, see Report and Recommendation, March 17, 2005, Doc. No. 156, petitioner has attached his own affidavit in support of this claim, which indicates in relevant part:
[F]ollowing the review of the government's discovery materials, to include but not limited to the laundry list of the government's witnesses and their possible testimonies, while I may have disagree[d] with some of the witnesses' testimony, I was convinced nonetheless that the government had sufficient evidence to convict me.
I requested my counsel to negotiate a guilty plea on my behalf with the government. My counsel, Mr. Cooper, subsequently informed me that the government guilty plea required me to testify against my co-defendant, Mr. Taniguchi.
I asked my counsel [for] his assessment of the strength of the government's case. Counsel informed me that the government case is solid. Based on counsel's representation, I informed my counsel that I will not testify against Mr. Jay Taniguchi or anyone else. I instructed my counsel to disregard the plea agreement negotiation, [and] that I wanted to plead guilty straight up without any plea agreement. That I just wanted to go before the judge, plead guilty to the indictment and tell the judge the extent of my involvement in the charged crimes. Counsel informed me that the only way I can plead guilty was for me to testify against my codefendant, Mr. Taniguchi, that the court will not accept a straight up guilty plea.
Counsel's maladroit performance prevented petitioner from receiving a three point downward departure for acceptance of responsibility, prejudice that is quantifiable [sic].Affidavit of James White.
In response, respondent submitted the affidavit of Christopher M. Cooper, petitioner's trial counsel, which indicates in relevant part:
[P]rior to the beginning of trial, a debriefing was set up with the Assistant United States Attorney David Bosley. Affiant states that during the course of his representation of Mr. James Wesley White, the defendant made it clear that he would not provide information, or testify against the co-defendant Jay Taniguchi. That on the day of the debriefing, Mr. White changed his mind and did not want to proceed with a debriefing.
The right to counsel guaranteed by the Sixth Amendment is the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The standard for reviewing a claim of ineffective assistance of counsel is twofold:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689.
To establish prejudice, it must be shown that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id., at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., at 697. Because petitioner must satisfy both prongs of the Strickland test to demonstrate ineffective assistance of counsel, if the Court determines that petitioner has failed to satisfy one prong, it need not consider the other. Strickland, 466 U.S. at 697.
Petitioner's allegation that he would have pleaded guilty had he known that he could do so without testifying against co-defendant Taniguchi is belied by the record before this Court. On June 12, 2000, Assistant United States Attorney James Bosley ["AUSA Bosley"] wrote defense counsel asking whether petitioner would be interested in an "off the record" proffer. Exhibit B to Return of Writ. On June 14, 2000, AUSA Bosley sent a copy of a proposed plea agreement to trial counsel:
Please find enclosed a plea agreement, a proffer letter and a copy of the statement of Mark Blankenship. I do not normally give out the statements of co-defendants, but as you have indicated that this will assist you in speaking with your client I have enclosed Blankenship's 302.
. . . It is important that your client understand the longer he waits the less value he is to our case which would be reflected in any 5K1.1 motion we would file. I believe we have a very strong case against him.Id.
The proposed plea agreement provided that petitioner would testify concerning all matters pertaining to the Superseding Indictment returned herein and to any and all other bank robbery or Hobbs Act violations in which he may have been involved or as to which he may have knowledge. Defendant further agrees to provide a complete statement to authorities of the United States concerning such matters prior to the entry of his guilty plea pursuant to this agreement. Defendant agrees to submit to supplemental debriefings on such matters whenever requested by authorities of the United States. . . .
Exhibit B to Return of Writ.
However, defense attorney Cooper testified that, although petitioner initially expressed interest in a guilty plea, he thereafter changed his mind and wanted to proceed to trial.
Q. Did there come a time that Mr. White said, I want to plead guilty, I just don't want to go to trial with Taniguchi? Did that happen?
A. . . . I know that we talked about a plea. I know that there was a plea agreement. And I know — I am going to recall that we may even had it set up. We had a date and time to meet over here. Mr. White was brought here. He was housed upstairs and . . . they also brought Mr. Taniguchi over that day, too. And when I went up to speak with him, Mr. White said that he did not want to enter a plea, he wanted to go to trial.Transcript, Evidentiary Hearing, March 29, 2006, at 33.
. . . I . . . explained to him the sentencing guidelines and I explained to him how the whole process of a federal case worked. I explained to him his options and that was an option that he needed to explore. I then contacted Mr. Bosley and set it up.
. . . [B]y the time I went upstairs to talk to him . . . he said that he changed his mind, he wanted to go to trial.Id., at 34-35.
I went through the guidelines. I gave him my projection of what his criminal history would be, where he would possibly land. I gave him my estimation of if he started at a specific offense level, how he could get down with departures. I went through everything and all of the information that I had available at the that time.Id., at 42.
Q. [Y]ou are saying that he actually knew he would get about 13 years prior to trial? You said that to him?
A. Yes, he knew that was a possibility.
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I went through the different things that can increase his base level with — even from participation to minor role, supervisor roles, all different type[s] of things. Guns. All different type[s] of things that could affect what he ultimately came out in this case [sic], and James wanted to go to trial.Id., at 43-44.
Q. Did Mr. White tell you that he thought it catastrophic and he knew, regardless of what the truth was, that he wanted to plead guilty because it looked bad?
A. No. James White always told me that he wanted to go to trial.Id., at 48.
I explained to Mr. White what a plea and what a proffer was. At that time Mr. White indicated that he would be interested in doing that. I set up a meeting, and that's what I referred to before, about a time he could come down here, proffer and plea. And that's when he got down here and he declined to go forward. I told him, that's fine.
* * *
After that time Mr. White always wanted to go to trial.
* * *
I explained to him that he could enter into a plea.
And that then under the federal system, that if you save the government expense and work or whatever you want to call it, preparing for trial, that you would get a three-level reduction for that. And then, we would look at the statute to see if there were any other ways to get downward departures. And usually, the largest departure that he would get is if he does a proffer and testifies against the codefendants, and then he would be eligible for a 5K1 downward departure and that was controlled by the government as to how many levels that . . . they would recommend. And I can't tell you today if you did that how many levels you would get because I don't — we haven't talked to the government about it, and I don't know how much or how good your information would be that would warrant such a departure, but that's the other way to get a departure downwards.
* * *
I told him that I would talk to the U.S. Attorney, work out a plea, and then that plea would be, you know, a document that was — that they would forward to us. And you would have an opportunity [to] read it, to look it over . . . it spells out the elements and the plea agreement.Id., at 51-52.
Q. Now, when you went to see Mr. White down at the courthouse and we had that meeting scheduled, what did he tell you when you went to see him in the lockup?
A. As best as I recall is that he did not want to do the proffer or the plea, that he wanted to go to trial. He wanted a trial. He would always tell me, I want to go to trial, when can I file my appeal? And I would say, you have got to have a trial before you can file an appeal, but he would always say that to me.
Id., at 72-73.
Q. Now, did you talk to Mr. White about this plea agreement . . .?
A. I really don't think we got that far. I don't remember us having a detailed discussion as to what counts he would have to plead to. I don't think that we got that far. I don't recall getting that far.
Q. Did he ever come to you and say, I want to plead guilty to the indictment, no cooperation, let's go and I'll take my 13 years and get it over with?
A. Never.Id., at 75.
Petitioner testified that Cooper told him that he "would be facing more time than the Oklahoma bomber" and that counsel tried to convince him that it was in his best interest to testify against co-defendant Jay Taniguchi. Id., at 84.
[H]e did bring a book and he opened the book up and he showed me some numbers where I could be or I couldn't be. But he wasn't for sure until he got the actual PSI to find out where I would be at and then we could object to the PSI which we did.Id., at 86.
Q. [Defense counsel] testified that he told you [that you would receive] a thirteen year sentence. Did he tell you that?
A. Never at all.Id., at 86.
[H]e said . . . that we either had to go to trial or we could take it home — I have to testify against Jay Taniguchi. And there was no other way that we could do it.Id., at 94. According to petitioner, he was afraid of Taniguchi and was unwilling to testify against him. Id., at 84-85; 94. Defense counsel, however, testified that petitioner said that he was not afraid of Taniguchi or anybody else. Id., at 34.
In any event, petitioner insists that he was not guilty of any of the charges against him.
[COURT]: Mr. White, were you guilty of the charges against you in the indictment?
A. No, ma'am.
Q. None of them?
A. There was [sic] isolated incidents that didn't have to do with what was actually in the indictment, but there was other things that you could consider a conspiracy that I would have said that I was guilty of.Id., at 93.
Q. [Counsel]: Did you tell Mr. Cooper that it wasn't you who drove the getaway car with Mr. Stevenson away from that Red Zone second robbery?
A. Yes, I did.
* * *
Q. . . . So, Shawn Booker is the guy that actually drives?
A. Yes, he is.
Q. But they are laying it on you, even though you weren't around?
A. Right.
Q. And you wanted cross on that point?
A. Right.Id., at 91-92. It therefore appears that petitioner wanted an opportunity to establish his innocence — an eventuality inconsistent with his allegation that he wanted to plead guilty.
Moreover, and contrary to the allegations raised in his § 2255 petition, petitioner testified at the evidentiary hearing that he was never willing to plead guilty to all the charges against him in any event:
Q. Mr. White, have you told the Court here that you wanted to plead guilty to the aspects of funneling money but you wouldn't plead guilty to the firearm; is that right?
A. Yes, sir.
Q. So, you were not willing to plead guilty to all of the counts in the indictment; is that right? You would never have pled guilty to a gun spec?
A. Yes, sir.
Q. . . . You didn't believe in your mind that you were guilty of pointing a firearm at somebody during a robbery of an armored car, Terry Hupp; isn't that right?
A. I never touched a gun, right.
Q. So, you would never have pled guilty to that?
A. Right.Id., at 104-105. Instead, petitioner wanted to explain to the District Judge that he was not guilty of at least some of the charges against him:
I wanted to go to the Judge and tell the Judge my involvement in it, to put a stipulation that I didn't have anything to do with no gun. All I know I did was funnel money for Jay and other people that is not involved in this case through my entertainment company.
Q. You are saying that you knew about the conspiracy, you knew about the monies, but you weren't what they thought you were?
A. Right.Id., at 102.
Defendants have a constitutional right to effective assistance of counsel during plea negotiations. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The two-prong ineffective assistance of counsel analysis that the Supreme Court announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to claims that counsel's performance was constitutionally deficient during plea negotiations. Hill, 474 U.S. at 58, 106 S.Ct. 366. A petitioner who claims that he was denied effective assistance of counsel with regard to whether or not to plead guilty must prove that (1) counsel rendered constitutionally deficient performance, and (2) there is a reasonable probability that but for counsel's deficient performance, the petitioner would have pled guilty. Magana v. Hofbauer, 263 F.3d 542, 547-48 (6th Cir. 2001) (citing Turner v. Tennessee, 858 F.2d 1201, 1206 (6th Cir. 1988)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.Humphress v. United States, 398 F.3d 855, 859 (6th Cir. 2005). Petitioner has failed to meet this standard. Petitioner argues that a "communication breakdown between counsel and client is a reasonable interpretation of the events surrounding the debriefing and the testimony given" at the evidentiary hearing. Petitioner's Post Hearing Brief, at 5. This Court disagrees. By his own admission, petitioner was never willing to plead guilty to all the charges against him; he wanted to explain to the District Judge that he was not guilty of any firearm offense. Further, the Constitution does not require that an attorney insist that his client accept a proffered plea agreement in view of overwhelming evidence of guilt. Smith v. United States, 348 F.3d 545, 552 (6th Cir. 2003).
The decision to plead guilty — first, last, and always — rests with the defendant, not his lawyer. Although the attorney may provide an opinion on the strength of the government's case, the likelihood of a successful defense, and the wisdom of a chosen course of action, the ultimate decision of whether to go to trial must be made by the person who will bear the ultimate consequence of a conviction.Id. Any failure by defense counsel to further pursue plea negotiations or to further discuss or clarify with petitioner the terms of a possible guilty plea did not constitute the ineffective assistance of counsel in view of petitioner's persistent refusal to discuss a guilty plea after the initial debriefing was cancelled at petitioner's request. See Humphrey v. United States, unpublished, 2005 WL 2002361 (N.D. Ohio August 19, 2005) (No ineffective assistance of counsel for failure to discuss sentencing guidelines due to defendant's "staunch refusal to consider a plea").
The United States Court of Appeals for the Sixth Circuit has explained the obligations of defense counsel as it relates to advice during the plea negotiations stage:
A criminal defendant has a right to expect at least that his attorney will review the charges with him by explaining the elements necessary for the government to secure a conviction, discuss the evidence as it bears on those elements, and explain the sentencing exposure the defendant will face as a consequence of exercising each of the options available. In a system dominated by sentencing guidelines, we do not see how sentence exposure can be fully explained without completely exploring the ranges of penalties under likely guideline scoring scenarios, given the information available to the defendant and his lawyer at the time.Smith v. United States, supra, 348 F.3d at 553, citing United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992). The record reflects that defense counsel met this obligation. Petitioner refused to consider a plea and insisted on going to trial. The fact that petitioner may now regret his decision will not provide a basis for relief. Further, petitioner's allegation in this habeas corpus petition that he would have pleaded guilty had he known that he could do so without testifying against co-defendant Taniguchi, in order to obtain a reduction of sentence for acceptance of responsibility, is simply unworthy of credit in view of the record before this Court.
For all the foregoing reasons, the Magistrate Judge concludes that petitioner's remaining claim of ineffective assistance of counsel is without merit, and RECOMMENDS that this action be DISMISSED. Petitioner's request for an evidentiary hearing to further develop his claim that he was denied the right to testify at trial which claim was previously dismissed, Order Adopting Report and Recommendation, May 19, 2005, Doc. No. 160, is DENIED.
To the extent that petitioner attempts to utilize his April 24, 2006, post hearing brief to assert additional claims of ineffective assistance of counsel that were not raised by the § 2255 petition, such claims are not properly before the Court and will not be considered.
If any party seeks review by the District Judge of this Report and Recommendation, that party may, within ten (10) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); F.R. Civ. P. 72(b). Response to objections must be filed within ten (10) days after being served with a copy thereof. F.R. Civ. P. 72(b).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).