Opinion
01-CV-7329 (RR).
March 28, 2002
JUAN DAVILA-BAJANA, No. 47580-053, FCI McKean, Bradford, Pennsylvania, Petitioner, pro se.
THE HONORABLE ALAN VINEGRAD UNITED STATES ATTORNEY FOR THE EASTERN DISTRICT OF NEW YORK, Kelly A. Moore, Assistant U.S. Attorney, Brooklyn, New York, Attorney for Respondent.
ORDER
By letter dated February 18, 2002. Juan Davila-Bajana inquires as to the status of his motion for a writ of error coram nobis regarding his 1991 conviction for conspiracy to distribute an amount in excess of five grams of cocaine base in United States v. Andres Reyes, a.k.a. Juan Davila, No. CR 90-929. That letter informs the court that the United States Court of Appeals for the Second Circuit had recently remanded this case to the district court for further proceedings. See Davila-Bajana v. United States, No. 01-3841 (2d Cir. Feb. 8, 2002). Unfortunately, the mandate in this case was never forwarded to this chambers, and was misfiled by the clerk's office.
Pursuant to the mandate, this court hereby orders that the Clerk of the Court reopen Davila-Bajana v. United States, No. CV 01-7329. It is further ORDERED that:
1. Petitioner is granted leave to proceed in forma pauperis.
2. The United States is to respond to the petition on or before April 30, 2002, providing copies of relevant transcripts of proceedings, as well as petitioner's and the United States Attorney's briefs on appeal.
3. The court further notes that petitioner challenges the effectiveness of counsel, a claim that generally waives the attorney-client privilege. See, e.g, Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974),cert. denied, 419 U.S. 1125 (1975); United States v. Ternullo, 413 F. Supp. 801, 803 n. 8 (S.D.N.Y. 1976) (Weinfeld, J.). If petitioner wishes to withdraw this claim rather than waive his attorney-client privilege, he should so advise the court in writing on or before April 30, 2002. If the court does not hear from petitioner, it will deem the attorney-client privilege waived and proceed to consider his claim.
4. Petitioner is granted until May 30, 2002, to file a reply, if any.
5. Service of a copy of this Order shall be made by the Clerk of the Court, together with a copy of the petition, to the United States Attorney for the Eastern District of New York, One Pierrepont Plaza, Brooklyn, New York 11201, and by mailing a copy of the Order to petitioner.
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICAN, RESPONDENT
-VS.- CASE NO. CR90:929. JUDGE RAGGI JUAN DAVILA-BAJANA, PETITIONER.
MOTION FOR A WRIT OF CORAM NOBIS
NOW COMES the defendant, in the above-captioned cause, and moves this Honorable Court for Relief from Judgement pursuant to the Writ of Coram Nobis, which permits a Petitioner to collaterally attack his conviction on constitutional or jurisdictional errors or defects in the [proceeding] either not correctable on direct appeal or where exceptional circumstances justify the failure to appeal on other grounds. United States v. Sobell, 314 F.2d 314 (2nd Cir. 1963); Kaufman v. United States, 394, U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969); Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.E.d. 1982, (1947).
[I] PETITIONER WAS DEPRIVED OF THE RIGHT TO APPEAL IN THE PRESENT CASE .
It is well settled that individuals sentenced in the Federal District Courts have a constitutional right to appeal there conviction. Coppedge v. United States, 369 U.S. 438, 62 S.Ct. 917, 8 L.Ed.2d 21 (1969). In the context of a guilty plea, absent an expressed waiver of the right to appeal his sentence, a defendant who pleads guilty and is sentenced in the Federal Court has a right to a direct appeal of his sentence. United States v. Bushert, 997, F.2d 1343 (11th Cir. 1993). In the case at bar, the Petitioner had ample cause to appeal the within sentence. Specifically, Rule (11) (c) of the Federal Rules of Criminal Procedure sets forth the procedure the Court must follow before it can accept a plea of guilty. A defendant's written submission of a guilty plea Petition (contract) is insufficient, even if the form (or contract) is completed with the assistance of counsel and sets forth the rights the defendant is waiving and the consequences of the plea United States v. Meding-Silverio, 30 F.3d 1 (1st Cir. 1994). In taking a guilty plea, the Court typically goes through the following process:
[1] [I] After ascertaining that the defendant is competent to enter a guilty plea, Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), the Court ask the defendant if the defendant wishes to change his plea. Rule (11) (a).
[II] The Court advises the defendant of the following rights and consequences of pleading guilty (Rule (11) [c]):
(A) Nature of the charges to which the defendant is pleading guilty to. United States v. Ruiz-del Valle, 8 F.3d 98 (1st Cir. 1993).
(B) Mandatory Minimum penalty for each charge, including the effect of special parole or supervised release and revocation of each of it occurs, and mandatory assessments. United States v. Still 102, F.3d 118 (5th Cir. 1997); United States v. Osment, 13 F.3d 1240 (8th Cir. 1994) (failure to inform defendant of ramifications of supervised release is not harmless error); Bargas v. Burns, 179 F.3d 1207 (9th Cir. 1999) Torrey v. Estelle, 842 F.2d (9th Cir. 1988);
(C) The Courts obligation to consider the applicable sentencing guidelines in deciding on a sentence, even if the Court ultimately decides to depart from the guidelines. United States v. Good, 25 F.3d 218 (4th Cir. 1994);
(D) That the defendant has a right to counsel at every stage of the proceedings;
(E) That by pleading guilty the defendant is waiving his rignts essentially concluding the case for all purposes, but sentencing;
(F) That the answers the defendant gives under oath in the plea colloquy could be used against him later in prosecution for perjury or false statement.
[III] The Court ascertains whether the plea is voluntary by asking the defendant (Rule (11) [d]):
(A) Whether the defendant was subject to any threats apart from the plea agreement. United States v. Caro, 997, F.2d 657 (9th Cir. 1993) (Failure to investigate whether Co-defendants pressured defendant into signing an agreement is not harmless error):
(B) What if any promises have been made in exchange for the defendants plea;
(C) The terms of the agreement;
(D) Whether there have been any promises outside of the formal plea agreement. Peavy v. United States, 31 F.3d 1341 (6th Cir. 1994).
[IV] The Court ascertains whether there is a factual basis for the plea. See United States v. Andrades, 169 F.3d 131 (2nd Cir. 1999).
In the case at bar, Petitioner submits the within Writ of Error Coram Nobis based on several grounds, all of which are rooted in constitutional defects in the initial proceeding. First, it is self-evident that the Petitioner was deprived of the constitutional right to file a direct appeal. Because of the opportunity to file a direct appeal, a defendant does not have a right to raise guideline sentencing issues in a 28 U.S.C. § 2255 proceeding. Cross v. United States, 893 F.2d 1287 (11th Cir. 1990) (holding that a prisoner may not litigate claims in a 2255 proceeding that were not raised on direct appeal).
In addition, the Sixth Amendment provides the right to effective assistance of counsel on direct appeal. Douglas v. California, 372, U.S. 353, 83 S.Ct. 814 9 L.Ed.2d 811 (1963) and it obligates an attorney to file the appeal and identify possible issues for the Court even if, in the attorney's opinion those issues are not meritorious. Anders v. California, 386 U.S. 738, 87 S.Ct. 1398 18 L.Ed.2d 493 (1967). In Rodriguez v. United States, 395 U.S. 327 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969). The Suprene Court stated in relevant part:
"Those whose right to appeal [which have] been frustrated should be treated exactly like any other appellant; they should not be given an additional hurdle to clear just because there rights were violated at some earlier stage in the proceedings."
Also see Becton v. Barnett, 920 F.2d 1190 (4th Cir. 1990) Turner v. North Carolina, 412 F.2d 486 (4th Cir. 1969). In Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967) the Supreme Court stated:
"It is now settled that where the assistance of counsel is a constitutional requisite, the right to be — furnished counsel does not depend on request. When a defendant whose indigency and desire to appeal are manifest does not have the service of his trial counsel on appeal, it simply can not be inferred from the defendant s failure to specifically request appointment of counsel that he has knowingly and intelligently waived his right to the appointment of appellate counsel."
In the case at bar, the Petitioner plead guilty to conspiracy to Distribute Cocaine Base in excess of (5) grams. Although counsel deprived the defendant of his constitutional right to appeal his conviction thereby warranting Coram Nobis relief. Petitioner's conviction to the within charges is predicated on a violation of his constitutional right to due process as illustrated in the Supreme Courts holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi the United States Supreme Court ruled that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the proscribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. 120 S.Ct. at p. 2362-63. The Court also stated that the relevant inquiry is not one of form but effect: does the required finding expose the defendant to a greater punishment than authorized by the jurys verdict 120 S.Ct. at p. 2365. The "Petitioner plead guilty to Conspiracy to Possess with Intent to Distribute in excess of (5) grams of Cocaine Base. The relevant statutory maximum penalties for violations of Title 21 U.S.C. § 841(a) (distribution of a controlled substance are set forth in the penal code). At the onset Petitioner's plea to a specific drug amount i.e. (5) grams or more, is equal to a verdict by a jury to said amount. United States v. Broce, 488 U.S. 563, 570, 109 S.Ct 757, 102 L.Ed. 927 (1989).
In United States v. Rebmann, 226 F.3d 52 (6th Cir. 2000) the Sixth Circuit applied Apprendi to the drug statute. The issue was whether the defendant's sentence should be enhanced on the grounds that her heroin distribution caused her husbands death. Without an enhancement, Rebmann's sentence would have been 24-30 months. The District Court sentenced Rebmann to 292 months. On appeal, the Court of appeals determined that the death enhancement was a fact which should have been determined using a beyond the reasonable doubt standard. In United States v. Harper, 246 F.3d 520 (6th Cir. 2001). the Court concluded that a stipulation by the defendant can substitute for a finding as to quantity by a jury. In the case at bar the defendant stipulated to a (5) gram or more finding, but in so doing set forth a specific Statutory Maximum under Section 841. The five gram threshold ends at a (20) gram level and a offense level of 22 before a new guideline range takes over. In United States v. Norris, 128 F. Supp.2d 739 (E.D.N.Y. 2001) the Court noted:
"Defendant's constitutional right to jury determination of every element of the charged crime beyond reasonable doubt prohibited Court from increasing defendant's sentence beyond the maximum fixed by the sentencing guidelines for the elements of the crime alleged in the indictment, for which he pleaded guilty.
The defendant plead guilty to Possession with Intent to Distribute (5) grams or more of Cocaine Base, which under the Guidelines sets an offense level of 22. In United States v. Stravhorn, 2001 U.S. App. Lexis, 10513 (6th Cir. 5/22/01) the defendant plead guilty to being involved with 50 Kilograms of Marijuana. The Maximum sentence for such a crime is 10 years with no mandatory Minimum sentence. The judge, using a preponderance of evidence standard, determined that there was more than 100 Kilograms involved. This finding triggered a Mandatory Minimum sentence of 10 years to life. The defendant received the Mandatory minimum sentence. On Appeal the Court ruled that Apprendi was applicable because each penalty provision in Section 841 constitutes a different crime with different elements, and weight must be proven beyond a reasonable doubt. In the case at bar, the specific quantity of drugs to which the defendant plead guilty to was undermined by the Courts use of the preponderance of evidence standard. Which subjected the defendant to an increase in punishment in violation of his constitutional right to due process.
In addition, as previous illustrated, the defendant plead guilty to "Conspiracy to Possess with Intent to Distribute in excess of five grams or more of cocaine base" at no time did the District Court inquire as to whether the defendant understood what it meant to be part of a conspiracy and whether he acted in furtherance of said conspiracy. United States v. Van Buren, 804 F.2d 888 (6th Cir. 1986). Thus, on this score alone, the defendant's conviction on the with charge must be vacated.
In retrospect, the deprivation of the Petitioner's right to appeal in this matter can not be ignored. Especially, in light of the fact that the Petitioner lacked a material understanding as to the nature of the charge of conspiracy. United States v. Van Buren, 804 F.2d 888 (6th Cir. 1986); United States v. Ruiz del Valle, 8 F.3d 98 (1st Cir. 1993). It is also equally clear that the defendant lacked a material understanding as to the consequences of his plea, including but not limited to the ramification of supervised release. Bargas v. Burns, 179 F.3d 1207 (9th Cir. 1999); Torres v. Estelle, 842 F.2d 234 (9th Cir. 1988).
In addition, the Court failed to investigate whether the defendants co-defendant influenced his plea to the with charge. United States v. Caro, 997 F.2d 657 (9th Cir. 1993).
Lastly, the record is clear that the defendant entered into a cooperation agreement with the Government. The Government promised to utilize good faith in determining whether or not to submit a Section 5K1.1 Motion and a Motion under Rule 35(b). While the Government ultimately submitted a Section 5K1.1 Motion the Government violated the expressed terms of the Rule (11) contract by failing to submit the Rule 35(b) Motion after the defendant continued to assist authorities after sentencing. The Governments delay in the Rule 35(b) submission was a root cause in the deprivation of the defendant's right to appeal. Accordingly, the within matter must be reopened in order to permit facts in mitigation of punishment and/or the defendants innocence to be fully developed. Specifically, that the defendant should have only been held to the drug quantity to which he plead guilty and all departures should have commenced from an offense level of 22.
Furthermore, this matter must be reopened in order to permit facts in mitigation to the defendants cooperation to be fully and freely developed. As it is the position of the Petitioner that the Governments failure to submit the proposed Rule 35(b) Motion violated the terms of the Rule (11) Contract, thus warranting its termination.
RELIEF SOUGHT
Wherefore, the Petitioner prays that this Honorable Court will:
(1) Grant the within Writ of Coram Nobis, and
(A) Set-Aside the defendants conviction to the charge of conspiracy;
(B) Resentence the defendant utilizing an offense Guideline Range of 22 and depart downward from said range;
(C) Direct the Government to file a Rule 35(b) Motion or show good cause as to why such a Motion should not be filed;
(D) In light of the Rule (11) violation(s) outlined in the within Writ of Coram Nobis, Set-Aside the defendant's conviction;
(E) Dismiss the charges in this matter in light of the violation of the defendants right to due process; or
(F) Reinstate the defendant's right to direct appeal.
Respectfully Submitted,
Juan Davila-Bajana U.S.M.S.# 47580-053 P.O. BOX 5000 Bradford, PA 16701
PROOF OF SERVICE
I Juan Davila-Bajana hereby certify that I mailed a copy of the within Writ to:
Kelly Moore Assistant U.S. Attorney 225 Cadman Plaza East Brooklyn, N Y 11201
By United States Mail on this 18th day of October, 2001, postage fully prepaid.
Respectfully,
Juan Davila-Bajana U.S.M.S. # 47580-053 P.O. Box 5000 Bradford, PA 16701