Opinion
5:19-CR-506-FL 5:23-CV-245-FL
03-07-2024
GILBERTO ESPINAL ESCAMILLA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, United States Magistrate Judge
This matter comes before the court on Petitioner Gilberto Espinal Escamilla's (“Escamilla”) pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, [DE-81], and the Government's motion to dismiss, [DE-85]. Escamilla filed a response to the Government's motion, [DE-88], The matter is fully briefed and ripe for decision. For the reasons stated below, it is recommended that the motion to dismiss be allowed and the petition be dismissed.
I. Procedural History
A Grand Jury sitting in the Eastern District of North Carolina charged Escamilla in a singlecount indictment with knowingly and intentionally possessing with the intent to distribute fifty or more grams of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1). [DE-1]. Escamilla, represented by court-appointed counsel, pleaded guilty without a written plea agreement. [DE-43, -72], The court sentenced Escamilla to 120 months' imprisonment and five years' supervised release. [DE-76]. Escamilla, with the assistance of counsel, filed a notice of appeal. [DE-64]. The Court of Appeals affirmed the criminal judgment, finding that the district court did not clearly err in denying Escamilla safety valve relief. [DE-77].
Escamilla timely filed the instant § 2255 petition. [DE-81]. The Government then moved to dismiss Escamilla's petition. [DE-85].
II. Standard of Review
After conviction and exhaustion or waiver of any right to appeal, courts and the public can presume that a defendant stands fairly and finally convicted. See United States v. Frady, 456 U.S. 152, 164-65 (1982). However, prisoners in federal custody may attack the validity of their convictions pursuant to 28 U.S.C. § 2255. Section 2255 provides a means for a defendant convicted of a federal offense to collaterally attack a conviction or sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). “[T]hus § 2255 relief is not limited to constitutional error in a conviction or sentence.” United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999) (citations omitted). Where a petitioner seeks relief from a nonconstitutional error, “the scope of review ... is more limited than that of constitutional error; a nonconstitutional error does not provide a basis for collateral attack unless it involves a fundamental defect which inherently results in a complete miscarriage of justice, or is inconsistent with the rudimentary demands of fair procedure[.]” Id. (internal quotation marks and citations omitted). “In a § 2255 proceeding, the burden of proof is on petitioner to establish his claim by a preponderance of the evidence.” Toribio-Ascencio v. United States, No. 7:05-CR-97-FL, 2010 WL 4484447, at *1 (E.D. N.C. Oct. 25, 2010) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint, not to resolve conflicts of fact or to decide the merits of the action. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). This standard applies equally to a Rule 12(b)(6) motion challenging a § 2255 motion. See Rule 12, Rules Governing Section 2255 Proceedings (applying the Federal Rules of Civil Procedure to § 2255 proceedings to the extent such rules are not inconsistent with any statute or the § 2255 rules). However, the “‘[factual allegations must be enough to raise a right to relief above the speculative level' and have ‘enough facts to state a claim to relief that is plausible on its face.'” Wahi v. Charleston Area Med. Ctr, Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.” Twombly, 550 U.S. at 555 (citations omitted)., In considering a motion to dismiss, the court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Revene v. Charles Cnty. Comm 'rs, 882 F.2d 870, 872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Moreover, a court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
III. Analysis
Escamilla asserts his counsel was ineffective in several ways: leading Escamilla into making an open guilty plea when the Government had offered a plea agreement, knowing that Escamilla would not be able to benefit from the First Step Act's safety valve provision on an open plea (“Claim I”); “caus[ing] [Escamilla not] to meet the fifth criteria of the safety []valve” (“Claim II”); failing to question or object to Investigator Jay Creech's testimony at the sentencing hearing, or demand that the investigator be placed under oath (“Claim III”); advising Escamilla that he would be eligible for safety valve relief after making an open guilty plea (“Claim IV”); failing to demand that the Government produce notes taken by law enforcement officers during their postplea debrief with Escamilla (“Claim V”); failing to clarify in the record that Escamilla's offense conduct involved a man called “Chico” and a confidential informant called “Angela,” rather than “Felicia Sandy” as stated in the PSR (“Claim VI”); and failing to explain the difference between pleading guilty with a plea agreement versus an open guilty plea (“Claim VII”). [DE-81] at 14.
Escamilla also seeks to challenge the district court's determination that he did not provide sufficient truthful information to aid the Government's investigation and therefore did not meet the fifth prong of the safety valve (“Claim VIII”), id. at 5,15; the district court's application of the statutory mandatory minimum sentence and two-level sentence reduction instead of the lesser guidelines range (“Claim IX”), id. at 15; and the district court's jurisdiction to adjudicate the case when Escamilla “did not commit portations [sic] of the offense conduct in criminal context” (“Claim X”), id. Finally, Escamilla asks whether his Fifth and Sixth Amendment rights were violated when he was “handed bill indictment with blank elements of offense, chanrge [sic]” (“Claim XI”), id. at 7; whether the Government suppressed and failed to “disclose notes of June 15, 2021” and “discovery on ‘Chico' missing person persumed [sic] to be dead” (“Claim XII”), id. at 8; and whether his “general advisement rights of entering plea were violated when DEA agent testified during sentence not under oath” (“Claim XIII”), id. at 16. The Government contends that Escamilla's claims must be dismissed because several were either previously litigated and resolved on direct review or were not raised on direct review and thus are procedurally defaulted without justification. Gov't's Mem. [DE-86] at 1-14. Additionally, the Government asserts that Escamilla's remaining ineffective assistance of counsel claims run contrary to his sworn statements made during his arraignment or sentencing hearing, or otherwise fail as a matter of law or fact. Id. at 221.
A. The court should dismiss Claims II, VIII and IX because of the law of the case doctrine.
Escamilla asserts several claims pertaining to the district court's decision to withhold safety valve relief and the Fourth Circuit's decision to affirm his ineligibility. See, e.g, Pl.'s Mot. [DE-81] at 15 (“whether petitioner met the fifth prong of the safety valve because the debriefing with government and attorney suppoert [sic] petitioner provided any and all truthful and complete proffer”). Additionally, at least one of Escamilla's ineffective assistance of counsel claims raises issues regarding his safety valve eligibility. See, e.g., id. at 14 (“whether ineffective assistance caused petitioner to [not] meet the fifth criteria of the safety valve”). The Government argues that Escamilla's safety valve claims are barred by the law of the case doctrine, and that to the extent Escamilla's ineffective assistance of counsel claims attempt to recast the issue of his safety valve eligibility as ineffective assistance of counsel claims, the law of the case doctrine still applies. Gov't's Mem. [DE-86] at 8-10.
Claim II provides the clearest example but Claims I and IV indirectly raise the issue of Escamilla's safety valve eligibility. There are other reasons to dismiss Claims I and IV, however, as discussed below.
The law of the case doctrine “forecloses relitigation of issues expressly or impliedly decided by the appellate court.” Cavillo-Rojas v. United States, Nos. 7:08-CR-l 39-FL, 7:13-CV-50-FL, 2013 WL 4461551, at *3 (E.D. N.C. Aug. 20, 2013) (quoting United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)). Issues previously decided on direct appeal cannot be recast in the form of a § 2255 motion in the absence of a favorable, intervening change in the law. Id. (citing Davis v. United States, 417 U.S. 333, 342 (1974); United States v. Walker, 299 Fed.Appx. 273, 276 (4th Cir. 2008) (“Absent a change in the law, a prisoner cannot relitigate in collateral proceedings an issue rejected on direct appeal.”); Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976) (“[O]nce a matter has been decided adversely to a defendant on direct appeal it cannot be relitigated in a collateral attack under Section 2255.”)). Similarly, issues previously decided on direct appeal cannot be recast under the guise of a section 2255 claim of ineffective assistance of counsel. Lewis v. UnitedStates, Nos. 5:ll-CR-229-F-8,5:14-CV-374-F, 2016 WL 3951087, at *11 (E.D. N.C. July 18, 2016) (citing United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993) (a habeas motion is not the appropriate forum to re-litigate issues previously addressed on direct appeal); United States V. Michaud, 925 F.2d 37, 41 (1st Cir. 1991) (“[I]ssues decided on direct appeal may not be relitigated under a different label on collateral review.” (citation omitted)); United States v. Johnson, 105 F.3d 670 (table), No. 96-6190, 1997 WL 2658, at *1 (10th Cir. Jan. 2, 1997) (“We cannot again review this claim simply because it has been recast in the clothing of an ineffective assistance of counsel claim.”).
In the instant case, the Fourth Circuit's ruling in United States v. Escamilla, No. 21-4513, 2022 WL 3334621 (4th Cir. Aug. 12, 2022), directly addressed Escamilla's safety valve ineligibility. [DE-77], Specifically, in reviewing the district court's decision to withhold safety valve relief for clear error, the appellate court stated,
After reviewing the record, we conclude that the district could did not clearly err in its finding that Escamilla was not forthcoming with the information he provided to the Government. The Government provided testimony that Escamilla had downplayed his role in the offense and denied his involvement with drug distributors. And we will not second-guess the district court's credibility determinations.Id. at 3. The Fourth Circuit then affirmed the district court judgment, rendering the lower court's safety valve finding the “law of the case.” See Cavillo-Rojas, 2013 WL 4461551, at *3 (finding that the law of the case doctrine barred petitioner's argument that there was insufficient evidence to support his firearm conviction where the Fourth Circuit “ha[d] already determined that the government ‘presented ample evidence to support the convictions of [petitioner]' for these offenses.”). Escamilla does not contend there has been any favorable intervening change in law that would alter the Fourth Circuit's analysis. Accordingly, the court should deny Escamilla's petition to vacate on these grounds and grant the Government's motion to dismiss Claims II, VIII and IX.
B. The court should dismiss Claims X, XI, XII, and XIII because they have been procedurally defaulted.
Escamilla asserts that his rights were violated because he was “handed [a] bill of indictment with blank elements of offense” and “never served with a Superseding Indictment at all”; that, in violation of Brady v. Maryland, 373 U.S. 83 (1963), “the prosecutor suppressed and failed to disclose” certain evidence allegedly bearing on the applicability of the safety valve provision; that the “district court lacked jurisdiction to a[d]judicate the 21 U.S.C. § 841 case when petitioner did not commit port[]ions of the offense conduct in a criminal context”; and that “petitioner[']s general advisement of rights of entering [a] plea were violated when DEA agent testified during sentence not under oath.” Pl.'s Mot. [DE-81] at 7-9, 15-16. The Government argues that Escamilla never raised these claims on his direct appeal, and consequently, they have been procedurally defaulted. Gov't's Mem. [DE-86] at 10-14.
A claim is procedurally defaulted when a petitioner raises it on collateral review without having first raised it on direct review. Farrior v. United States, 826 F.Supp.2d 867, 870 (E.D. N.C. 2011) (citing Murray v. Carrier, 477 U.S. 478, 485 (1986)). Procedurally defaulted claims can nevertheless be raised on federal habeas review if the petitioner demonstrates “cause and prejudice” for the delay or shows that he is “actually innocent” of the charges against him. Id. (citing same). To show cause for a procedural default, the petitioner must demonstrate that some objective factor external to the record impeded his efforts to raise the claim. McKoy v. United States, Nos. 5:14-CR-87-FL-2, 5:16-CV-610-FL, 2017 WL 11510099, at *2 (E.D. N.C. July 12,2017) (citing Murray, 477 U.S. at 492; Turner v. Jabe, 58 F.3d 924, 927 (4th Cir. 1995)). To establish actual innocence, the petitioner must demonstrate that “it is more likely than not that no reasonable juror would have convicted him.” Id. (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
The Fourth Circuit heard Escamilla's appeal from the district court judgment, where Escamilla contended that the district court erred in denying his request for safety valve relief. United States v. Escamilla, No. 21-4513, 2022 WL 3334621, at *1-2 (4th Cir. 2022). Escamilla did not raise any claims related to his indictment, the Government's alleged failure to disclose evidence, the district court's jurisdiction, or Investigator Creech's testimony at sentencing. Id. Thus, these claims have been procedurally defaulted, and may only be decided on collateral review if Escamilla has demonstrated cause and prejudice for the delay or actual innocence. Farrior, 826 F.Supp. at 870 (citing Murray, 477 U.S. at 485).
Turning first to cause and prejudice, Escamilla does not provide a reason as to why his jurisdictional claim was not raised on direct appeal. However, Escamilla asserts that his claims concerning the indictment, the alleged Brady violations, and Investigator Creech's testimony were not raised on direct appeal due to the ineffective assistance of his trial and appellate counsel. Pl.'s Mot. [DE-81] at 17,23. The denial of effective assistance of counsel can constitute adequate cause for the court to consider a procedurally defaulted claim on collateral review, provided that the petitioner's ineffective assistance claim is credible. McClarin v. United States, Nos. 5:ll-CR-279-FL-2, 5:16-CV-795-FL, at *2 (E.D. N.C. May 20, 2021) (citing Mikalajunas, 186 F.3d at 493).
Here, Escamilla's ineffective assistance of counsel claims are not credible, as explained more fully below.
Even if Escamilla was able to show cause for each of his newly raised claims, though, he has not established the requisite prejudice. To show actual prejudice, a petitioner must demonstrate that errors in the proceedings “worked to his actual and substantial disadvantage” and were of constitutional dimension. United States v. Worthington, Nos. 4:17-CR-00049-M, 4.49-CV-00063-M, 2021 WL 4428199, at *5 (E.D. N.C. Sep. 23, 2021) (citing Frady, 456 U.S. at 170). Escamilla has not met this burden. First, Escamilla asserts that his Fifth and Sixth Amendment rights were violated because he was “never served with a Superseding Indictment at all.” Pl.'s Mot. [DE-81] at 7. However, no superseding indictment was ever issued, and the Government's failure to serve him with a non-existent document hardly placed Escamilla at an actual and substantial disadvantage.
Second, Escamilla posits that the Government withheld exculpatory evidence in violation of Brady v. Maryland, but mere speculation is insufficient for Brady purposes. See Bartko v. United States, Nos. 5:09-CR-321-D, 5:15-CV-42-D, 2018 WL 5780838, at *15 (E.D. N.C. Nov. 2, 2018) (citing United States v. Caro, 597 F.3d 608, 619 (4th Cir. 2010) (“Because [defendant] can only speculate as to what the requested information might reveal, he cannot satisfy Brady's requirement of showing that the requested evidence would be ‘favorable to [the] accused.'”)). Furthermore, Escamilla's Brady claim is particularly tenuous given that he asserts that the Government withheld notes and recordings taken by law enforcement officers during their June 15, 2021 meeting with Escamilla. Pl.'s Mot. [DE-81] at 8, 14, 18, 23. Both Escamilla and his counsel attended this meeting, Id. Ex. 3 [DE-81-3] at 7-8, and presumably, if material exculpatory evidence from the debrief existed for the Government to withhold, Escamilla's claims would be more concrete, i.e., he would be able to identify the exact information being withheld.
Third, Escamilla's claim that his “general advisement rights of entering plea were violated when DEA Agent testified at sentence[ing] not under oath,” Id. [DE-81] at 16, fails to establish actual prejudice because by the time Investigator Creech testified at sentencing, Escamilla had already pleaded guilty. Therefore, Creech's testimony could not have impacted Escamilla's decision to plead guilty, and to the extent that Escamilla contends that he was prejudiced by Creech's statements against Escamilla's safety valve eligibility, that argument is barred by the law of the case doctrine, see supra § 111(A). Finally, while Escamilla has not alleged adequate cause for his failure to assert his jurisdictional claim on direct review, even if he had done so, he cannot demonstrate that the alleged error was prejudicial. The federal courts' authority to adjudicate controlled substances offenses under 21 U.S.C. § 841(a) is well-established. See Lovell v. United States, Nos. 5:11-CR-148-D, 5:14-CV-654-D, 2015 WL 1808945, at *3 (E.D. N.C. Apr. 20,2015) (rejecting §2255 petitioner's claim that his federal prosecution for drug possession with the intent to distribute in violation of 21 U.S.C. § 841(a) violated the Tenth Amendment) (citing Gonzales v. Raich, 545 U.S. 1,19 (2005) and other cases).
Most significantly, at his arraignment, Escamilla pled guilty after being advised of his rights, the nature of the offense with which he was charged, the punishments he faced, and the factual basis supporting the charge. [DE-72] at 14-16. Escamilla also specifically acknowledged that he was pleading guilty of his own free will because he was, in fact, guilty. Id. at 15. Escamilla does not now claim that he is not guilty of the offense for which he was convicted-he simply asserts that he should have been able to plead guilty via plea agreement versus an open plea. Pl.'s Mot. [DE-81] at 25. However, Escamilla's sentence is within the statutory range of punishment of which he was advised prior to pleading guilty. Even though Escamilla contends he should have been eligible for safety valve relief and that such relief could have been negotiated into a written plea agreement, Pl.'s Resp. [DE-88] at 7, Escamilla's safety valve eligibility has already been decided by the Fourth Circuit and cannot be relitigated on collateral review. See supra § 111(A). Thus, Escamilla cannot establish both cause and actual prejudice for any of his procedurally defaulted claims. See Kerr v. United States, Nos. 5:08-CR-302-F-l, 5:14-CV-262-F, 2016 WL 958202, at *5 (E.D. N.C. Mar. 8, 2016) (no actual prejudice where petitioner did not contest his participation in the robberies for which he was convicted); Samuels v. United States, Nos. 3:16-cv-453-GCM, 3:91-cr-33-GCM-l, 2017 WL 4583902, at *5 (W.D. N.C. Oct. 13, 2017) (no actual prejudice where petitioner's total sentence fell within the statutory range for his convictions).
Critically, because Escamilla admitted his factual guilt under oath at his Rule 11 hearing- and does not now claim otherwise-he also cannot overcome his procedural default by asserting actual innocence. See McKoy, 2017 WL 11510099, at *2 (stating that actual innocence hinges on factual, not legal, innocence) (citing Bousley v. United States, 523 U.S. 614, 623 (1998)). Accordingly, Claims X, XI, XII, and XIII have been procedurally defaulted. The court should deny Escamilla's request to vacate on these grounds and grant the Government's motion to dismiss Claims X, XI, XII, and XIII.
C. The court should dismiss Claims I, III, IV, V, VI, and VII because they contradict his statements at his Rule 11 hearing, are contradicted by other record evidence, or fail to establish prejudice.
Escamilla's final and largest set of claims concern the allegedly ineffective assistance of his trial and appellate counsel. Pl.'s Mot. [DE-81] at 4, 14. As previously discussed, at least one of these claims (Claim II) attempts to recast the issue of Escamilla's safety valve eligibility, and it is recommended that the claim be dismissed. See supra § III(A). However, most of Escamilla's ineffective assistance claims remain unresolved, including whether counsel led Escamilla into an open plea despite knowing about the plea agreement and the fact that Escamilla would not qualify for safety valve relief with an open plea; whether counsel failed to question or object to Investigator Creech's testimony at sentencing and demand that he be placed under oath; whether counsel erroneously advised Escamilla that he would be eligible for safety valve relief with an open plea; whether counsel failed to demand production of the alleged Brady material discussed above; whether counsel failed to ensure that the Government's factual information related to the charged offense reflected that Escamilla was involved with “Chico” and CI “Angela,” not “Felicia Sandy” as stated in PSR; and whether counsel failed to explain the difference between pleading guilty with a plea agreement versus an open plea. Pl.'s Mot. [DE-81] at 4, 14. The Government argues that many of Escamilla's ineffective assistance claims either contradict his statements at his Rule 11 hearing or are contradicted by other evidence in the record. Gov't's Mot. [DE-86] at 14-20. Moreover, the Government contends that Escamilla has not established that he was prejudiced by his counsel's allegedly deficient performance. Id. at 20-21.
The Sixth Amendment guarantees criminal defendants effective assistance of counsel. United States v. Murillo, 927 F.3d 808, 815 (4th Cir. 2019) (citing Strickland v. Washington, 466 U.S. 668, 685-86 (1984)). To demonstrate ineffective assistance of counsel, a petitioner must show that counsel's representation was deficient, and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. To establish deficient performance, the petitioner must overcome a ‘“strong presumption' that counsel's strategy and tactics fall ‘within the wide range of reasonable professional assistance.'” Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). As to the prejudice component, a petitioner must show “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.” Strickland, 466 U.S. at 694. It is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697 (explaining “a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies” or “to address both components of the inquiry if the defendant makes an .insufficient showing on one”).
The Sixth Amendment right to effective assistance of counsel “extends to the plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012). Counsel has a duty to communicate formal offers from the prosecution to the defendant, Missouri v. Frye, 566 U.S. 134, 145 (2012), and “to inform a defendant of the advantages and disadvantages of a plea agreement and the attendant statutory and constitutional rights that a guilty plea would forego,” Libretti v. United States, 516 U.S. 29, 50-51 (1995). The Fourth Circuit has found that counsel may be ineffective where counsel's erroneous advice impacts the defendant's plea decision. See United States v. Mayhew, 995' F.3d 17f, 177 (4th Cir. 2021) (grossly erroneous advice regarding sentencing exposure that caused a defendant to forgo a plea and take the case to trial was ineffective); O'Tuel v. Osborne, 706 F.2d 498, 499-501 (4th Cir. 1983) (holding that “gross misinformation” from counsel about parole eligibility, which caused defendant to accept a guilty plea, constituted ineffective assistance of counsel).
1. The court should dismiss Claims V and VII because they are contradicted by statements Escamilla made at his Rule 11 hearing.
Escamilla's assertions that his trial counsel “failed to explain the difference between pleading guilty with a plea agreement and an open plea” and failed to investigate “to determine the truth and scope of the prosecution's case against [him],” Pl.'s Mot. [DE-81] at 14, 17, are contradicted by statements he made at his Rule 11 plea hearing. Escamilla's arraignment and Rule 11 hearing were conducted on January 11, 2021 by United States Magistrate Judge Kimberly Swank. [DE-72] at 1. Escamilla was placed under oath and confirmed that he was able to understand the proceedings through the court interpreter. Id. at 9-10. He was then asked a series of questions aimed at ensuring he was competent and that his plea was made knowingly and voluntarily. Escamilla affirmed that he had been provided with a copy of the charges against him and that his attorney had fully discussed those charges and his case in general with him, he understood the charges against him and what was happening in court at the hearing, and he was satisfied with his attorney's advice and counsel in the case. Id. at 11-13. Escamilla was also advised of the minimum and maximum possible penalties for each count he faced, and he acknowledged that he understood the minimum and maximum punishment he faced if found guilty of the charges against him. Id. at 13-14. Finally, Escamilla was advised that if the court accepted his guilty plea that he would waive his right to a jury trial and that he may not be able to withdraw his plea and have a trial in his case. Id. at 15.
Escamilla affirmed that he intended to plead guilty and that he was pleading guilty of his own free will because he was, in fact, guilty. Id. at 14-15. Escamilla declined more time to think about his plea or to further discuss his case with his attorney, and he entered a guilty plea. Id. at 15-16. Escamilla then admitted to the conduct alleged in the charges. Id. at 16.
[A] defendant's solemn declarations in open court. . . carry a strong presumption of verity ... because courts must be able to rely on the defendant's statements made under oath during a properly conducted Rule 11 plea colloquy.... Indeed, because they do carry such a presumption, they present a formidable barrier in any subsequent collateral proceedings. Thus, in the absence of extraordinary circumstances ... allegations in a § 2255 motion that directly contradict the petitioner's sworn statements made during a properly conducted Rule 11 colloquy are always palpably incredible and patently frivolous or false. Thus, in the absence of extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established, and a district court should, without holding an evidentiary hearing, dismiss any § 2255 motion that necessarily relies on allegations that contradict the sworn statements. Otherwise, a primary virtue of Rule 11 colloquies would be eliminated-permitting quick disposition of baseless collateral attacks.United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005) (internal citations and quotation marks omitted).
Escamilla's claims that his trial counsel failed to explain the difference between pleading guilty with a plea agreement versus an open plea and failed to investigate the Government's case against him are contradicted by his sworn statements at the plea hearing that he had discussed his case with counsel, understood the charges and penalties he faced, was satisfied with counsel's advice, and wanted to plead guilty even though he would be giving up his right to trial. Additionally, at Escamilla's sentencing hearing, after the court noted Escamilla was facing a minimum of 120 months' imprisonment and stated that he would not qualify for safety valve relief, Escamilla did not indicate that he was unaware of his sentencing exposure or that he wanted to withdraw his guilty plea and proceed to trial; instead, he thanked the court and apologized to both the court and the State of North Carolina for the actions he committed as an addict. [DE-76] at 10. Escamilla's claims that his trial counsel's performance in advance of the plea hearing was deficient are baseless because they are contradicted by Escamilla's statements to the court at his plea hearing and at his sentencing. See Beale v. United States, Nos. 4:10-CR-49-FL-3, 4:12-CV-176-FL, 2013 WL 1209620, at *5-6 (E.D. N.C. Jan. 8, 2013) (finding a petitioner's claims of ineffective assistance warranted dismissal because the claims contradicted statements made at the Rule 11 hearing), adopted by 2013 WL 1209939 (E.D. N.C. Mar. 25, 2013); see also Sierro-Pineda v. United States, No. 5:ll-CR-22-RLV-l, 2014 WL 5147566, at *4 (W.D. N.C. Oct. 14, 2014) (rejecting claims that counsel was ineffective for failing to explain the alternatives to pleading guilty, advise him of the statutory maximum sentence, discuss the plea agreement, explain the operation of the sentencing guidelines, and discuss the possibility of sentencing enhancements, among other things, where the petitioner's statements at the Rule 11 hearing contradicted the allegations underlying his claims). Accordingly, Claims V and VII should be dismissed.
2. The court should dismiss Claims I, IV, and VI because they are contradicted by record evidence.
Several of Escamilla's ineffective assistance of counsel claims are belied by information in the record. First, Escamilla contends that his trial counsel failed to clarify in the record that his offense conduct involved a man called “Chico” and a confidential informant called “Angela,” rather than “Felicia Sandy” as stated in the PSR. Pl.'s Mot. [DE-81] at 14. However, Escamilla's trial counsel specifically objected to the PSR's reference to “Felicia Sandy” and clarified that Escamilla had dealt with a woman named “Angela” instead. Pl.'s Mot. Ex. 6 [DE-81-6]. Escamilla's trial counsel also informed Escamilla at numerous points that she had made such objections. Pl.'s Mot. Ex. 5 [DE-81-5] at 5, 7-9.
Second, Escamilla asserts that his trial counsel advised him that he would be eligible for safety valve relief under an open plea, Pl.'s Mot. [DE-81] at 14, but the record clearly reflects that Escamilla's trial counsel merely informed him that the trial court had the authority to grant or deny safety valve relief, Pl.'s Mot. Ex. 5 [DE-81-5] at 6-9. In fact, the record also shows that Escamilla's trial counsel informed Escamilla that he had to fully cooperate with law enforcement to obtain safety valve relief; that the PSR did not find that Escamilla was eligible for safety valve relief; that Escamilla's decision not to cooperate with the Government was a barrier to him obtaining safety valve relief; and that if Escamilla continued to deny involvement in drug dealing activities reflected in evidence produced in discovery, he was at risk of not receiving safety valve relief. Id. Furthermore, Escamilla's counsel specifically objected to Escamilla “not receiving benefit of the safety valve provision” in the PSR and advocated for him to receive that relief at sentencing. Pl.'s Mot. Ex. 6 [DE-81-6] at 2; [DE-76] at 4 (“What is at issue, though, is the application of the safety valve provision, which we believe my client has met the criteria of, and we are asking this Court to apply it.”).
Finally, Escamilla alleges that his counsel advised him to make an open plea, even though she knew that the Government had offered a plea agreement and that Escamilla would not be able to benefit from safety valve relief making an open plea. Pl.'s Mot. [DE-81] at 14. However, the record indicates that Escamilla's counsel did not know about the draft plea agreement that the Government had offered prior to Escamilla's arraignment and Rule 11 hearing, and that Escamilla had informed his counsel that he was not interested in such an agreement. [DE-72] at 14. Additionally, as previously detailed, the evidence shows that Escamilla's counsel did not definitively state whether Escamilla would qualify for safety valve relief. Pl.'s Mot. Ex. 5 [DE-81 -5] at 6-9.
Notably, even if Escamilla had alleged that his counsel's performance was deficient in these respects, he has not demonstrated the requisite prejudice. As Escamilla's counsel conceded at sentencing, Escamilla's PSR objections were “factual” and “d[id] not affect the base offense level.” [DE-76] at 4. In other words, he would have been subject to the same sentencing range with or without the requested PSR corrections. With respect to Escamilla's safety valve eligibility, as discussed above, that issue has already been decided by the Fourth Circuit, and Escamilla has not contested that he is factually guilty of the offense conduct. See supra §§ III(A), (B).
Turning to Escamilla's assertion that his counsel advised him to make an open plea despite the existence of the draft plea agreement, even if his counsel had known about the written agreement, the draft Escamilla attached to the instant motion would have subjected him to the same minimum sentence that he ultimately received. Pl.'s Mot. Ex. 1 [DE-81-1]. Moreover, the draft plea agreement makes no mention of the safety valve provision, which Escamilla believes that he was entitled to receive. Id. While Escamilla contends that he did not learn about the draft plea agreement until after his arraignment, and had he known, he could have attempted to negotiate safety valve relief into the formal agreement, Pl.'s Resp. [DE-88] at 7, Escamilla's safety valve eligibility has already been decided by the Fourth Circuit, he has admitted he is factually guilty of the offense conduct, and his sentence is within the statutory range of punishment of which he was advised prior to pleading guilty. Defense counsel has a duty to communicate to a client a formal, favorable plea agreement from the Government, Frye, 566 U.S. at 145; however, for a petitioner to prove that he was prejudiced by his counsel's failure to do so, he must show that he would have accepted a plea offered by the Government and that the sentence under the plea offer was less than the sentence ultimately imposed. United States v. Brannon, 48 Fed.Appx. 51, 53-54 (4th Cir. 2002). Escamilla never disputed his counsel's statement that he was not interested in a plea offer, [DE-72] at 14, nor can he credibly argue that the sentence that he would have received under the plea offer would have been less than the sentence ultimately imposed.
Given the foregoing, even if Escamilla had successfully asserted that his counsel's performance was deficient under Strickland, he has not demonstrated that there is a reasonable probability that, but for counsel's allegedly deficient performance, he would have received a more lenient sentence. Mendoza-Miguel v. United States, Nos. 7:08-CR-l 27-BO-l, 7:10-CV-205-BO, 2010 WL 5353970, at *3 (E.D. N.C. Dec. 21, 2010) (citing Glover v. United States, 531 U.S. 198, 202-04 (2001)). Consequently, the court should grant the Government's motion to dismiss Claims I, IV, and VI.
3. The court should dismiss Claim III because Escamilla has not demonstrated the requisite prejudice.
Escamilla's final ineffective assistance of counsel claim is that his counsel failed to question or object to Investigator Creech's testimony at sentencing and failed to request that Creech be placed under oath. Pl.'s Mot. [DE-81] at 14. The Government contends that Escamilla has failed to allege, much less establish, the requisite prejudice for this claim. Gov't's Mem. [DE-86] at 20.
As an initial matter, Escamilla has not plausibly alleged that his trial counsel's performance was deficient in this respect. The court was permitted to consider law enforcement's testimony at sentencing, and the Sixth Amendment does not require counsel to make frivolous objections or requests. See Ellis v. United States, Nos. 5:12-CR-208-D, 5:15-CV-268-D, 2016 WL 3064079, at *4 (E.D. N.C. May 27,2016) (citing Alleyne v. UnitedStates, 570 U.S. 99,116-17 (2013); Knowles v. Mirzayance, 556 U.S. Ill. 126-27 (2009); Strickland, 466 U.S. at 689). However, even if Escamilla had plausibly alleged that his trial counsel erred by not questioning Investigator Creech or requesting that he be placed under oath, he has not demonstrated that the error was prejudicial.
By the time Investigator Creech testified about the Government's investigation and Escamilla's cooperation, Escamilla had already pled guilty and admitted his factual guilt. As noted above, Escamilla does not now argue that he is not guilty, or that he would not have pled guilty but for counsel's allegedly deficient performance. See supra § 111(B). Escamilla also does not explain how counsel's alleged errors regarding Investigator Creech prejudiced his case or final sentence. To the extent that Escamilla contends that Creech's testimony impacted his final sentence via his safety valve eligibility, that issue has already been decided by the Fourth Circuit and cannot be relitigated on collateral review. See supra § III(A). Thus, Escamilla has not established that, but for this alleged error, he would have received a lesser sentence, Mendoza-Miguel, 2010 WL 5353970, at *3 (citing Glover, 531 U.S. at 202-04), and the court should dismiss Claim III on this basis.
IV. Conclusion
For the reasons stated above, it is recommended that that the motion to dismiss, [DE-85], be allowed, and Escamilla's petition, [DE-81], be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until March 21, 2024 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the (natter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).