Opinion
Criminal Action No. 02-80163 Civil Action No. 03-70710
July 23, 2003
AMENDED OPINION AND ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255
This matter is before the court on petitioner's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. This pro se federal prisoner argues: 1) that his Rule 11 guilty plea was involuntary because he made it while under medical duress; 2) that he received ineffective assistance of counsel because he pled guilty after his attorney promised him a guilty plea would lead to medical care; and 3) that prison officials have shown reckless indifference to his deteriorating medical condition in violation of the Eighth Amendment to the United States Constitution.
I. BACKGROUND
Petitioner's § 2255 motion is timely, arising within the one-year limitations period. Petitioner's case is currently on direct appeal to the Sixth Circuit Court of Appeals under Case No. 03-1266
On February 12, 2003, petitioner Andrew Gross was sentenced to 120 months in prison for use of counterfeit checks in violation of 18 U.S.C. § 513, and ordered to pay $347,527.26 in restitution. He pled guilty without a Rule 11 plea agreement on the day his trial was to commence, after the government flew in numerous witnesses. According to the Presentence Investigation Report, petitioner's sentence recommendation was adjusted for acceptance of responsibility because he supplied the government with an explanation of the Count on which he was sentenced.
The Pretrial Report noted a scar and large growth of excessive scar tissue on petitioner's left ear. It also noted a tumor growth on the same ear, present since the early 1990's. At the time of trial, petitioner complained that his current custody had inhibited his ability to receive the necessary medical treatment for his ear.
II. PETITIONER'S § 2255 MOTION
A. Petitioner's involuntary guilty plea claim
Petitioner alleges that he entered into a guilty plea under medical duress, due to a painful tumor on his left ear for which he had not received proper medical attention. He attempts to bring this claim under § 2255 despite a pending direct appeal.
Application under § 2255 is an extraordinary remedy and should not be considered a substitute for direct appeal. See Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998) citing United States v. Davis, 604 F.2d 474, 484-85 (7th Cir. 1979). Absent extraordinary circumstances, a district court is precluded from considering a § 2255 motion during the pendency of the applicant's direct appeal, Id. at 1123, because a determination of the direct appeal may render a collateral attack unnecessary. See Davis, 604 F.2d at 484-85. A determination of "extraordinary circumstances" depends on a balancing of the need for speedy relief against the need for conservation of judicial resources. See id.
Petitioner presents no extraordinary circumstances warranting an exception to the general rule in this case, and none are otherwise apparent.
B. Petitioner's ineffective assistance of counsel claim
Petitioner alleges ineffective assistance of counsel because his court-appointed lawyer promised him that a guilty plea would ensure him adequate medical treatment for his ear.
The government attempts to make petitioner's ineffective assistance of counsel claim a component of petitioner's involuntary guilty plea claim. Thus, the government alleges that § 2255 may not properly be brought in this case during the pendency of a direct appeal. However, petitioner clearly states in his Memorandum in Support of his § 2255 Motion that his attorney "falsely advised" him, "deceived" him, and provided him with ineffective assistance.
A claim of ineffective assistance of counsel is best brought in a post-conviction proceeding under 28 U.S.C. § 2255, where the parties can develop an adequate record on the issue. See Harton v. United States, 173 F.3d 428 (6th Cir. 1999) citing United States v. Pruitt, 156 F.3d 638, 646 (6th Cir. 1998). Generally, when an applicant raises ineffective assistance of counsel claims for the first time on direct appeal, there has not been an opportunity to develop and include in the record evidence bearing on the merits of the allegations. See United States v. Tucker, 90 F.3d 1135, 1143 (6th Cir. 1996). The customary procedure followed by the various circuits where the issue of ineffective assistance of counsel was not raised in the district court is to permit the applicant to raise such a claim in a proper post-conviction proceeding under § 2255. See United States v. Hill, 688 F.2d 18, 21 (6th Cir. 1982).
In order to prevail on a claim of ineffective assistance of counsel, petitioner must 1) show that his counsel's performance was deficient, and 2) show that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). There is a strong presumption that counsel is effective, therefore petitioner has a heavy burden to prove otherwise. See Kimmelmann v. Morrison, 477 U.S. 365, 381 (1986).
At his Guilty Plea Hearing, petitioner clearly indicated that he was not pleading guilty just because he wanted to get medical attention. (Guilty Plea Hearing Transcript, p. 10, # 10-17). At the same Hearing, petitioner's attorney asked the court to recommend to the Marshal's Service that they pay particular attention to his client's medical condition, specifically his ear. (Guilty Plea Hearing transcript, p. 18, # 10-14). The Court indicated in response that a letter had been sent to the Marshal and the detention center regarding petitioner's medical condition. (Guilty Plea Hearing transcript, p. 18, # 18-20).
The record further shows that petitioner's attorney also advocated for his client at the Sentencing, advising the Court that on the morning of sentencing petitioner seemed to be having difficulty hearing. (Feb. 13, 2003 Sentencing transcript, p. 5, #18-25; p. 6, #1-3). Petitioner's attorney also asked the Court to consider his plea to designate petitioner to a medical facility prior to prison, although the Court recommended a maximum security prison facility. (Feb. 13, 2003 Sentencing transcript, p. 41, # 9-10).
The record further shows that on a number of occasions petitioner acted contrary to the advice of his attorney. During petitioner's Guilty Plea Hearing, petitioner was prepared to waive his objections to the Presentence Report, in the hope of obtaining immediate medical treatment for his ear. (Guilty Plea Hearing transcript, p. 3, # 23-25). This action would have been contrary to his attorney's advice. Petitioner's attorney had wanted to "error on the side of caution," recommending that petitioner take advantage of the Judge's offer to adjourn the matter in order for petitioner and his attorney to meet regarding possible objections. (Guilty Plea Hearing transcript, p. 4, # 11-15; p. 6, # 14-17). Petitioner did eventually avail himself of the adjournment and his objections were filed. At the Sentencing, petitioner signed a document affirming his objections to the Presentence Report, contrary to his attorney's advice. (Feb. 13, 2003 Sentencing Report, p. 19, # 7-9).
Petitioner failed to provide this Court with additional evidence that he was deceived or falsely advised, as he alleged. There is no evidence that petitioner's attorney acted inappropriately, as judged by prevailing professional norms. See Kimmelmann v. Morrison, 477 U.S. 365, 381 (1986) (setting forth the standard for deficiency). Petitioner also failed to demonstrate the reasonable probability that, but for unprofessional errors of his counsel, the result of the proceeding would have been different. See id. (setting forth the standard for prejudice to the defendant). Petitioner has not met his burden under Strickland or Kimmelmann. Therefore, his ineffective assistance of counsel claim must fail.
Petitioner's 8th Amendment Cruel and Unusual Punishment Claim
Petitioner alleges that state and federal prison officials have shown deliberate indifference to his deteriorating medical condition and the resulting pain and suffering. Allegations of inadequate medical conditions are not cognizable under § 2255, which provides relief from an unconstitutional or otherwise unlawful sentence. 28 U.S.C. § 2255. Civil rights actions are the proper remedies for state prisoners challenging unconstitutional conditions of prison life.See Bivons v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Therefore, petitioner's cruel and unusual punishment claim must fail.
For the reasons set forth above,
IT IS ORDERED that the petitioner's motion to vacate his sentence pursuant to 28 U.S.C § 2255 is denied.