Opinion
No. 99 Civ. 1916 (MGC).
October 8, 2004
LAW OFFICE OF SAM A. SCHMIDT, New York, NY, Sam A. Schmidt, Attorney for Petitioner Juan Jairo Carbajal.
DAVID N. KELLEY, United States Attorney, Southern District of New York, New York, NY, Brian Michael, Timothy Treanor, Assistant United States Attorneys, Attorney for the Government.
OPINION
John Jairo Carbajal, a federal prisoner, petitions to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, his petition is denied.
BACKGROUND
Carbajal and four others were charged with conspiring to distribute and possess with the intent to distribute cocaine, in violation of 21 U.S.C. § 846. Two defendants pleaded guilty, and three stood trial. The trial began October 10, 1995 and ended with the conviction of all three defendants on November 16, 1995. On August 8, 1996, Carbajal was sentenced to 235 months' imprisonment. The Court of Appeals affirmed Carbajal's conviction and sentence on January 30, 1998. See United States v. Zapata, 164 F.3d 620 (2d Cir. 1998); United States v. Zapata, 135 F.3d 844 (2d Cir. 1998).DISCUSSION
I. Ineffective Assistance of Counsel
Carbajal argues that his trial lawyer, Thomas Dunn, refused to engage in plea negotiations and to counsel him regarding the strength of the Government's case, failed to object to witness testimony procured in violation of 18 U.S.C. § 201, failed to object to violations of his rights under international treaties, and failed to mount a meaningful defense. Carbajal contends that his appellate lawyer's failure to raise the trial lawyer's deficient performance was also ineffective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel, a petitioner must show that his lawyer's representation was unreasonable under the "prevailing professional norms," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Trial counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. TheStrickland test, which addressed the constitutional requirements of trial counsel, applies equally in the appellate context. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992).
A. Legal Advice Relating to Plea Negotiations
In his petition, Carbajal argues that his lawyer provided him with ineffective assistance of counsel by refusing to negotiate a plea, insisting on going to trial, and failing to counsel Carbajal regarding the strength of the Government's case and the wisdom of pleading guilty. According to Carbajal's papers, his lawyer told him that he risked adding only one year to his potential sentence by going to trial. Had Carbajal known that he faced a high probability of conviction and a sentence of nearly twenty years in prison, he contends, he would have pleaded guilty and received a significantly lighter sentence.
Unquestionably, criminal defense attorneys must render professional assistance when their clients are deciding how to plead. "The decision whether to plead guilty or contest a criminal charge is ordinarily the most important single decision in any criminal case. This decision must ultimately be left to the client's wishes. . . . But counsel may and must give the client the benefit of counsel's professional advice on this crucial decision." Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir. 1996) (quoting Anthony G. Amsterdam, Trial Manual 5 for the Defense of Criminal Cases, § 201 at 339 (1988)) (emphasis in original). Counsel "must always communicate to the defendant the terms of any plea bargain offered by the prosecution," Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999), and should also accurately inform his client of the potential difference in sentence between pleading and standing trial, United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998), and of the strength of the Government's case, Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000). Counsel must also offer the defendant advice regarding the wisdom of pleading. See Cullen, 194 F.3d at 404.
A petitioner who establishes that his lawyer failed to advise him adequately regarding plea negotiations must still satisfyStrickland's prejudice prong; that is, he must show that if the lawyer had properly advised him, there is a reasonable probability that the petitioner would have pleaded guilty. This usually requires some "objective evidence" in addition to the petitioner's post hoc declaration that, had he been fully informed, he would have pleaded guilty and accepted the proffered sentence. See Gordon, 156 F.3d at 381; see also Purdy v. Zeldes, 337 F.3d 253, 259 (2d Cir. 2003). A significant sentencing disparity "provides sufficient objective evidence — when combined with a petitioner's statement concerning his intentions — to support a finding of prejudice underStrickland." Gordon, 156 F.3d at 381.
The trial record in this case belies Carbajal's claim that his lawyer refused to engage in plea negotiations. Several times in the course of the trial, counsel for the defendants discussed the status of plea negotiations on the record, describing meetings in which they discussed with their clients the possibility of pleading. At one point, a defense lawyer requested a draft plea agreement. Counsel subsequently informed the court that defendants rejected the Government's offer. Although Carbajal's lawyer did not address the court regarding the negotiations, nothing in the record indicates that Carbajal or his lawyer were absent from the plea meetings or objected to the characterization of the meetings as involving all defendants.
Because the trial record could not establish the validity of Carbajal's claims that Dunn insisted on going to trial, did not advise him of the strength of the Government's case, and informed him that he faced only one additional year if he stood trial, an evidentiary hearing was held on June 16, 2004. Petitioner was appointed counsel pursuant to 28 U.S.C. § 2255.
Thomas Dunn, Carbajal's trial counsel, testified that within the first few months of being assigned to represent Carbajal, he met with him to discuss the Sentencing Guidelines and the option of cooperating with the Government in exchange for a more lenient sentence. Carbajal was unwilling to cooperate at that time. Dunn renewed the discussion on several occasions because he felt that cooperation was Carbajal's best option. Dunn testified that his recollection of the first plea offer, made before trial, was in the range of 151 to 181 months, although his recollection was hazy. He recalled that the calculation was based on the drug weight which the Government was confident that it could prove. Dunn testified that he advised Carbajal that the evidence against him was very strong, and advised him several times to accept the plea offer. Carbajal insisted on going to trial. Dunn testified credibly that he, Dunn, never insisted on going to trial. Dunn also testified that he recalled discussing with his client the sentence he faced upon conviction after trial, which would have been significantly higher than the sentence offered in the plea agreement because of additional drug weight the Government could prove. Dunn recalled that the difference was more than five years. Dunn did not inform Carbajal that he faced only one additional year in prison if he stood trial and lost. Dunn testified that a second plea offer was made during trial, and that it was also significantly lower, by a magnitude of years, than the sentence Carbajal faced if convicted after trial.
Dunn also testified that he was certain that he discussed with Carbajal a possible post-trial adjustment for role, but noted that the evidence at trial showed that Carbajal was "more than a minor player" in the conspiracy. (Transcript at 15.) Dunn also stated that he understood that the "safety valve" provision of the Sentencing Guidelines was not in effect at the time of Carbajal's trial; therefore, he did not advise Carbajal of the applicability of that provision to his sentence.
Carbajal also testified. He conceded that he was not willing to cooperate before trial. He stated that the original plea offer carried a sentence of fifteen years, which he felt was too high, and he asked Dunn to negotiate a lower sentence. He testified that Dunn informed him that if he stood trial and lost, depending on the drug quantity which was proved he could face a twenty-year sentence. Carbajal also testified that the plea offer made during trial carried a sentence of sixteen years, and that Dunn informed him that sixteen years was the same sentence he would receive if convicted after trial. Carbajal stated that Dunn did not inform him of the safety valve provision.
I found Dunn to be a credible witness. Carbajal did not contradict Dunn's testimony that he did not insist on Carbajal's going to trial, that he did advise Carbajal that the Government's evidence was very strong, counseled his client to accept the plea agreement, and advised him that he faced a twenty-year sentence if convicted after trial. Carbajal's claims of ineffective assistance of counsel based on these contentions are denied.
In addition, it became clear during Carbajal's testimony that he was retracting his claim that Dunn told him he faced only one year above the plea offer if he stood trial and lost. Carbajal's attorney argued during the hearing that this claim was simply incorrectly phrased in Carbajal's papers, and that Carbajal was attempting to argue that Dunn had informed him that if he lost at trial, other factors could reduce the sentence he would face as a consequence, such as a possible reduction for playing a minor role in the crime. That reduction would put him at essentially the same level as the offer of sixteen years made during trial. Carbajal appears to argue that on the basis of these representations, he did not accept that plea offer, and that the provision of this advice constituted ineffective assistance of counsel.
This argument is entirely different from the claim Carbajal raised in his papers. It is also without merit. First, Dunn testified that while he was certain that he discussed the issue of a potential role reduction with his client, Dunn was aware that the evidence in the Government's possession indicated that Carbajal was unlikely to receive such a reduction. Dunn also testified that he did not advise Carbajal at any time that he would only receive a sentence of one year longer by going to trial, and advised him to plead guilty several times. Carbajal has offered no basis to doubt Dunn's credible testimony or to believe that in spite of Dunn's knowledge that his client was unlikely to receive a role reduction, he would have urged him to continue with the trial because the possibility of such a reduction would have made little or no difference in sentence. Second, Carbajal himself testified that he was unwilling to plead guilty before trial in exchange for a fifteen-year sentence. He has not offered any reason to credit his present statement that he would subsequently have accepted a sixteen-year sentence.
Carbajal also sought to raise a new issue at the evidentiary hearing: that Dunn's failure to advise Carbajal of the availability of a two-point reduction through the "safety valve" provision of the Sentencing Guidelines constituted ineffective assistance of counsel. One provision of the United States Code and two provisions of the United States Sentencing Guidelines Manual relate to what has come to be called the "safety valve." The statutory provision, 18 U.S.C. § 3553(f), is captioned "Limitation on applicability of statutory minimums in certain cases." It authorizes a sentencing court, in cases involving certain violations of the narcotics laws, to impose a sentence pursuant to the Sentencing Guidelines without regard to any mandatory statutory minimum, if several conditions are met. Among other things, the defendant must not have a significant criminal history, he must not have been "an organizer, leader, manager, or supervisor of others in the offense," and, no later than the sentencing hearing, he must have "truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan." 18 U.S.C. § 3553(f).
Section § 5C1.2 of the Sentencing Guidelines incorporates § 3553(f). Neither of these provisions establishes a specific point reduction in a defendant's sentence. Only the third "safety valve" provision, U.S.S.G. § 2D1.1(b)(6), permits the judge to reduce a sentence where a defendant has met the criteria specified in U.S.S.G. § 5C1.2(a). Because Carbajal is arguing that his lawyer did not inform him of a two-point safety-valve reduction, it is clear that he is referring to § 2D1.1(b)(6).
According to Carbajal, had he pleaded guilty before trial, he would have received a three-point reduction for acceptance of responsibility, which would have placed his sentence in the 15-year range contemplated by the Government's plea offer. The two-point safety-valve reduction would have further reduced the sentence offered in the plea agreement from fifteen years to approximately thirteen years. Carbajal claims that had he been aware of the possibility that he could have received such a reduction, he would have pleaded guilty before trial. Noting that the safety valve is also available after a jury conviction, Carbajal further claims that had he been aware of the provision, he would have fulfilled the conditions of § 2D1.1(b)(6) after trial, thus reducing his sentencing exposure to 188 to 235 months from the 235 to 293 month range within which he was sentenced.
Carbajal's safety valve arguments fail under both prongs ofStrickland. Carbajal has not shown that Dunn's failure to inform him of the safety valve constituted deficient performance. U.S.S.G. § 2D1.1(b)(6) did not come into effect until November 1, 1995, which was approximately the midpoint of Carbajal's trial. Notice of the amendment was published on May 10, 1995 in theFederal Register. But such publication is only notice of proposed amendments to the Guidelines, which may be modified or stricken by Congress before the effective date. See 28 U.S.C. § 994(p). It cannot be said that by failing to anticipate the enactment of this provision and to inform Carbajal of its possible applicability to his case, Dunn's representation of his client fell below an "objective standard of reasonableness" according to "prevailing professional norms." Strickland, 466 U.S. at 688. "The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight." Yarborough v. Gentry, 124 S. Ct. 1, 6 (2003).
Furthermore, Carbajal cannot show a reasonable probability that, but for Dunn's omission, the outcome would have been different. Carbajal's lack of candor in his petition, in which he asserted a claim which he then retracted during the hearing, and his inconsistent testimony on the witness stand, diminish the credibility of his claim that he would have pleaded guilty had he been informed of the safety valve.
In addition, the disparity between the Government's pre-trial plea offer and the sentence which Carbajal believes he could have received does not provide objective evidence to support his statement that while he was not willing to plead to the former, he would have pleaded to the latter. The difference a reduction of two years would make to a sentence of fifteen years is not significant. Similarly, the reduction which Carbajal claims he could have received after trial is minor compared to the twenty to twenty-four year sentence he faced. Courts which have treated sentence disparities as objective evidence of prejudice in similar situations have consistently required much greater discrepancies. See, e.g., Mask v. McGinnis, 233 F.3d 132, 141-42 (2d Cir. 2000) (finding objective evidence of prejudice in the disparity between the erroneously calculated plea offer of ten years to life in prison and the actual sentence of twenty to forty years defendant received upon conviction after trial);Gordon, 156 F.3d at 381 (finding objective evidence of prejudice where the defendant's counsel erroneously informed him that he faced a maximum sentence after trial of 120 months, and the actual sentencing range was 210 to 262 months).
Carbajal has also offered no credible evidence that he would have received the safety-valve reduction had he sought it. It is difficult to believe that Carbajal would have been willing to provide the Government with information about his crimes in accordance with U.S.S.G. § 2D1.1(b)(6), in exchange for a reduction of only a few years, when he had previously refused to cooperate for what would have been a significantly reduced sentence.
Carbajal also attempts to show a reasonable probability of a different result by arguing that he would have pleaded guilty if his lawyer had informed him of the possible effects of a combination of the safety valve and the role reduction. Carbajal argues that before trial, the safety valve reduction would have assured him of a likelihood of a guideline range of 135 to 168 months, and a role reduction would have given him a "hope" of a further reduction to 108 to 135 months. This argument turnsStrickland on its head. Dunn testified that he did inform Carbajal of the potential for a role reduction, but also that he believed that such a reduction was unlikely. Dunn's assessment proved accurate when Carbajal sought and was denied the reduction after trial. Carbajal appears to suggest that Dunn should have urged his client to plead by holding before him the slight prospect of a role reduction, despite the attorney's professional opinion that a motion for that reduction would be futile. It is not the law that an attorney should suppress his professional judgment to induce his client to plead guilty.
Carbajal has not shown that Dunn's advice concerning pleading guilty constituted ineffective assistance of counsel.
B. Violations of 18 U.S.C. § 201
Carbajal also raises several claims related to the testimony of cooperating witness Luis Zapata. First, Carbajal contends that the Government violated 18 U.S.C. § 201(c) by promising Zapata a lighter sentence in exchange for his testimony. Section 201(c) provides, in relevant part, that "[w]hoever . . . gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial . . . before any court . . . shall be fined under this title or imprisoned for not more than two years, or both." Counsel's failure to object to this violation, petitioner contends, constituted ineffective assistance of counsel.
This argument is without merit. Section 201(c)(2) does not apply to Assistant United States Attorneys acting in their official capacity. United States v. Stephenson, 183 F.3d 110, 118 (2d Cir. 1999). Because the Government's offer of leniency to Zapata in exchange for his testimony was not illegal, counsel's failure to object to it was not ineffective assistance.
Carbajal also argues that the disparity between his sentence of 235 months and Zapata's sentence of 37 months violated Carbajal's due process rights, and that Dunn was deficient in failing to object to that violation. There is no constitutional violation where a sentence is within the range prescribed by statute. Furthermore, "[t]here is no requirement under the due process clause or any other clause of the Constitution which imposes a mandate upon the Court to render uniform sentences against criminal defendants." United States v. Vita, 209 F. Supp. 172, 174 (E.D.N.Y. 1962); cf. Zada v. Scully, 847 F. Supp. 325, 328 (S.D.N.Y. 1994) ("Having gone to trial, petitioner necessarily placed the full details of the crime squarely before the sentencing judge, who acted on the facts before him."). Again, counsel did not render ineffective assistance by failing to raise this meritless claim.
C. Violations of Treaty Obligations
Carbajal next asserts that his trial counsel failed to object to the Government's violations of the Vienna Convention. Article 36 of the Vienna Convention provides that law enforcement officials who arrest a foreign national shall inform that individual's consulate of the arrest and shall inform the national of his right to such notification "without delay." Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, art. 36, para. 1. The article also provides that consular officials have the right to visit, correspond with, and arrange for the legal representation of detainees from their countries. See id.; see also 28 C.F.R. § 50.5(a)(1) (establishing a uniform procedure for consular notification: "In every case in which a foreign national is arrested the arresting officer shall inform the foreign national that his consul will be advised of his arrest unless he does not wish such notification to be given"). The Government concedes that Carbajal was not informed of his right to consular access and that the Consulate of Colombia was not informed of his arrest. Carbajal contends that his counsel's failure to inform him of his right of consular access constituted deficient performance. Had he been properly informed, Carbajal argues, he would have contacted his consulate, learned that he had no chance of acquittal, pleaded guilty, and received a lesser sentence.
Even assuming that Dunn's failure to inform Carbajal of his right to consular notification rises to the level of deficient performance, Carbajal's explanation of how this failure prejudiced him is unpersuasive. The Government points out that Carbajal's right to consular notification arose after his arrest and before discovery. Thus, even if the Colombian Consulate would have provided Carbajal with legal advice, it would not necessarily have been in a position to evaluate the strength of the Government's case or the sentence Carbajal faced under the Sentencing Guidelines. Furthermore, Dunn testified credibly that he urged his client to plead guilty more than once. Carbajal offers no reason to credit his current claim that he would have accepted advice from the Colombian consulate which he repeatedly rejected from his lawyer.
Insofar as Carbajal is also raising Dunn's failure to object to the Government's failure to notify Carbajal of his Vienna Convention rights, that claim is unsuccessful. The Second Circuit has held that the consular notification provision of the Vienna Convention does not create a "fundamental right" for foreign nationals, and is therefore not an appropriate basis for dismissing an indictment. See United States v. De La Pava, 268 F.3d 157, 165-66 (2d Cir. 2001); see also Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1993).
Carbajal also argues that the Drug Enforcement Agency ("DEA") violated the Vienna Convention by running a "reverse sting" operation in Colombia without notifying or obtaining the consent of that country's government. The Government suggests that Carbajal is actually referring to the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 20, 1988, 28 I.L.M. 493 (1989). The Government contends that neither treaty requires the DEA to obtain Colombia's approval before investigating drug trafficking within that country's borders. Regardless of the merits of Carbajal's claim, it is clear that he has no standing to object to violations of the Convention. Because the Convention is not self-executing, but depends instead on the enactment of laws in signatory nations to give it effect, it creates no individual rights. See Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003). Thus, even if Carbajal could demonstrate that the DEA violated the Convention, he has no standing to object. His attorney was therefore not deficient in failing to raise the claim.
D. Failure to Mount a Defense
Finally, Carbajal contends that his lawyer was ineffective because he did not make an opening argument or otherwise mount a meaningful defense at trial. This claim is meritless. "[T]he decision whether to make an opening statement and when to make it is ordinarily a matter of trial tactics and strategy which will not constitute the incompetence basis for a claim of ineffective assistance of counsel." United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987). The record reveals that Dunn represented Carbajal ably. Although he usually cross-examined witnesses after counsel for the other defendants, he often found new avenues for questioning. He presented a brief but forceful summation. He was the only defense lawyer who called a witness on his client's behalf. His representation did not deprive petitioner of his constitutional right to adequate counsel.
E. Ineffective Assistance of Appellate Counsel
Because all of Carbajal's ineffective assistance of trial counsel claims are without merit, his appellate counsel's failure to raise them does not constitute deficient performance. See, e.g., Aparicio v. Artuz, 269 F.3d 78, 99 n. 10 (2d Cir. 2001).
II. Blakely v. Washington
In his most recent submission, Carbajal's attorney notes that he will seek to amend Carbajal's petition if the Supreme Court determines that Blakely v. Washington, 124 S. Ct. 2531 (2004), invalidates the federal Sentencing Guidelines. This is essentially the same claim Carbajal raised himself in a letter dated July 3, 2000, in which he argued that his sentence violatesApprendi v. New Jersey 530 U.S. 466 (2000), because it relies on a fact — that the crime involved more than five kilograms of cocaine — not found by a jury beyond a reasonable doubt. See id. at 490 ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."). This claim is not cognizable, because bothBlakely and Apprendi were decided after Carbajal's conviction and sentence, and the Second Circuit has held that the new constitutional rule created by Apprendi does not apply retroactively to initial petitions under 28 U.S.C. § 2255. See Coleman v. United States, 329 F.3d 77, 90 (2d Cir. 2003); see also Schriro v. Summerlin, 124 S. Ct. 2519, 2526 (2004) (holding that Ring v. Arizona, 536 U.S. 584 (2002), a case applying Apprendi to Arizona's death penalty scheme, announced a procedural rule not applicable to cases final on direct review). Because Blakely, like Ring, is based on the reasoning of Apprendi, there is no reason to believe that the Second Circuit or the Supreme Court will view its retroactivity any differently.
CONCLUSION
For the foregoing reasons, Carbajal's petition is denied.
SO ORDERED.