Opinion
Civil Action No. 02-8258, Criminal Action No. 99-428-2.
June 17, 2004
MEMORANDUM
Before the Court is petitioner Milagros Cardona's request for writ of habeas corpus, pursuant to 28 U.S.C. § 2255. Petitioner pleaded guilty to conspiring and possessing with the intent to distribute 500 grams of cocaine. Petitioner was sentenced within the appropriate sentencing range to 87-months imprisonment. Petitioner appealed her sentence to the Third Circuit Court of Appeals, arguing only that the two point sentencing enhancement for possession of a firearm was erroneously applied. The Third Circuit affirmed. The petitioner now argues that her guilty plea was not informed or voluntary and that her conviction was obtained in violation of her right against self-incrimination. Petitioner also contends that her attorney at sentencing rendered her ineffective assistance of counsel.
Petitioner did not contend that firearms were not present in her apartment, but rather that the firearms were not related to the drug trafficking crime. The Court affirmed the sentencing adjustment because it was not "clearly improbable that the handgun was connected to the petitioner's offense." Cardona v. U.S., 27 F.3d 580 (3d Cir. 2001) (quoting 28 U.S.C. § 2D1.1(b) (1), cmt. n. 3) The record indicated that a handgun was found loaded and unlocked on a dresser in the petitioner's bedroom.
I. ANALYSIS
A. Procedurally Defaulted Claims.
Petitioner's claim that her plea was uninformed and involuntarily proffered and that her conviction was obtained in violation of her right against self-incrimination are procedurally defaulted because she failed to raise them on appeal or as contemporaneous objections during her plea or sentencing.Wainright v. Sykes, 433 U.S. 72, 84 (1977). When a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in the habeas proceedings only if "the defendant can demonstrate either `cause' and `prejudice' or that she is `actually innocent.'" Bousley v. U.S., 523 U.S. 614, 622 (1998) (citations omitted). Petitioner must therefore show cause excusing her procedural default and actual prejudice resulting from her errors. Frady 456 U.S. at 168. Even if the petitioner can show cause, she must also prove that "but for the alleged error, the petitioner's case would have a different result." Strickland v. Washington, 466 U.S. 688, 694-695 (1984); U.S. v. Bagley, 473 U.S. 667, 682 (1985).
The same "cause and actual prejudice" standard that applies to procedurally defaulted claims in habeas petitions pursuant to 28 U.S.C. § 2254 also applies to procedurally defaulted claims in habeas petitions pursuant to 28 U.S.C. § 2255. Reed v. Farley, 512 U.S. 339, 354 n. 13 (1994) (citing U.S. v. Frady, 456 U.S. 152, 167-168 (1982)); see also Cristin v. Brennan, 281 F.3d 404, 416 n. 14 (3d Cir. 2002) (citing Frady, 456 U.S. at 167).
The petitioner has not met the "cause" requirement because she fails to demonstrate "some objective factor external to the defense impeded counsel's efforts to raise the claim." U.S. v. Essig, 10 F.3d 968, 979 (3d Cir. 1994). Both the involuntary plea and self-incrimination claims are based on evidence contained in the record. This evidence is not newly discovered but was available to petitioner at both the sentencing hearing and on appeal. Therefore, petitioner fails to show cause why the procedural default should be excused.
The petitioner has also failed to show actual prejudice in regards to either claim. The record indicates that the Court addressed the defendant in an open proceeding, explained to the defendant the nature of the charges against her and the consequences of the plea, informed the defendant of the rights she was surrendering by pleading guilty in the case and determined that the plea was voluntary and not the result of force, threats, or promises (apart from those contained in the plea agreement). See Gov't Resp. to Def. Motion, Ex. "A." The Court's colloquy with petitioner at the change of plea hearing adhered faithfully to the provisions of Rule 11 of the Federal Rules of Criminal Procedure. Given petitioner's response to the Court's questions at the sentencing hearing, the Court concludes that petitioner's plea was entered into voluntarily and with knowledge of the consequences. See McCarthy v. U.S., 394 U.S. 459, 460 (1969).
Petitioner argues that her guilty plea was not knowing or voluntary because she was not advised of the possibility of a sentencing enhancement. Rule 11 does not require that the defendant be put on notice of applicable sentencing enhancement provisions prior to accepting a guilty plea. See Fed.R.Crim.P. 11(c)(1). Moreover, petitioner was specifically advised that "the Court will not be able to determine how the sentencing guidelines will be applied in [her] case, until a presentence report is completed." Hearing Tr., at 17. Petitioner was also informed of the maximum possible penalty and the mandatory minimum. Id. at 16. Given the clear and unambiguous nature of the plea colloquy in this case, petitioner's claim that her plea was involuntary and not in compliance with Rule 11 fails. Therefore, petitioner cannot show actual prejudice in this case.
Petitioner's claim that her conviction was obtained in violation of her right against self-incrimination also fails to show actual prejudice. Once a plea has been knowingly and voluntarily made, antecedent non-jurisdictional constitutional violations are waived. Broce v. U.S., 488 U.S. 563, 573-74 (1989). In addition, petitioner consented to a waiver of her trial rights prior to entering her guilty plea. Hearing Tr., at 18. Because petitioner's right against self incrimination was waived once she pleaded guilty, the self-incrimination claim fails to show actual prejudice.
B. Ineffective Assistance of Counsel Claim.
The Government concedes that petitioner's ineffective assistance of counsel claim is not procedurally defaulted. Petitioner argues that her attorney at sentencing, Joseph Santaguida, Esq., rendered her ineffective assistance of counsel. To determine if counsel was ineffective, the Supreme Court has directed the courts to apply a two part test. Strickland, 466 U.S. at 668. One, petitioner must show that counsel's performance fell below an objective standard of reasonableness. Two, petitioner must show that the deficient performance prejudiced the defendant. Id. at 687-688. To prevail petitioner must satisfy both prongs.
The failure to raise an ineffective assistance of counsel claim on direct appeal is not treated as a procedural default.U.S. v. Derewal, 10 F.3d 100, 103 (3d Cir. 1993).
In support of the ineffectiveness claim, petitioner alleges that Mr. Santaguida's brother had been sentenced on the date of her sentencing hearing, and that as a result, Mr. Santaguida was distracted and unable to render effective counsel. The petitioner additionally alleges that Mr. Santaguida should have requested a continuance during the sentencing hearing to discover the true source of the cocaine involved in her offense.
The petitioner's allegations are speculative and do not show that counsel's performance fell bellow an objective standard of reasonableness. Inquiries as to reasonableness of counsel involve deference towards the attorney, as "he is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."Strickland, 466 U.S. at 689-90. Not only does the record indicate that Mr. Santaguida raised appropriate and reasonable objections during sentencing, but there is no evidence to indicate that counsel's performance was rendered ineffective by his brother's circumstances at the time of petitioner's sentencing.
The transcript shows Mr. Santaguida extensively cross examined Government witnesses as to the applicability of the firearms enhancement. Mr. Santaguido also argued to the Court that Ms. Cardona should not have been subject to the firearms enhancement and that Ms. Cardona should be eligible for safety valve relief.
Petitioner's ineffective counsel claim also fails because she cannot show that, but for the deficiencies of counsel, "the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Petitioner's argument requires the Court to assume that her request for a continuance of sentencing would have been granted, that the continuance would have resulted in new evidence being presented to identify the true source of the cocaine, and that the new evidence would have resulted in a different outcome at sentencing. Even assuming the continuance were requested and granted, there is nothing to suggest that the Court would have reached a different outcome in sentencing Ms. Cardona.
The petitioner also believes she should have been entitled to a downward departure for her cooperation with the Government. However, absent a promise in the plea agreement requiring the Government to do so or an unconstitutional motive or bad faith, the Government has no obligation to file a downward departure motion. U.S. v. Abuhouran, 161 F.3d 206, 217 (3d Cir. 1998). None of these conditions exist here. Rather, the Government's decision not to file a motion for a downward departure rests solely on its good faith belief, supported by the record, that the petitioner lied during her proffers concerning the source of the drugs and the firearm in the case. Because petitioner cannot demonstrate actual prejudice, her claim of ineffective assistance of counsel fails.
II. CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2255, is denied.