Opinion
Civil No. 02-1979 (HL), Criminal No. 98-189 (HL).
April 14, 2004
REPORT AND RECOMMENDATION
Petitioner Mahendra Hayes (hereafter "petitioner") filed a motion for post-conviction relief under 28 U.S.C. § 2255 on June 24, 2002 ( Docket entry #1). Respondent, the United States of America (hereafter "the government"), filed its response and request for summary dismissal on September 20, 2002 ( Docket entry #6). Thereafter, pro-se petitioner's reply was tendered. The matter has been referred by the Honorable Court to the undersigned Magistrate Judge for a report and recommendation ( Docket entry #9).
A perusal of the criminal record shows petitioner was convicted after a change of plea and judgment upon conviction was entered in Criminal No. 98-189 (HL). He entered a guilty plea to Count Three, the only count where he was charged in a second superseding indictment, on March 6, 2000 (Docket entry #899). In accordance with a verbal plea agreement, the defendant accepted responsibility for a money laundering offense upon the government's recommendation at the time of sentence of a term of imprisonment of eighty seven (87) months, which was the lowest end that was estimated at the time to be the applicable Sentencing Guideline range. Defendant was represented at the time by his retained counsel Carlos Pérez-Olivo (Transcript C/O/P dated 3/6/2000, Docket Entry No. 899). Sentence was imposed thereafter on June 29, 2000, wherein defendant was represented by retained counsel Francisco López-Romo (Transcript Sentencing Hearing dated 6/29/2000, Docket entry #1078). There was no written plea agreement in this case nor a direct appeal to the conviction and/or sentence.
Title 18 U.S.C. § 1956(h) states a violation involving financial transactions that represented the proceeds of unlawful activity, in the instant case, drug trafficking.
Change of Plea Proceedings
Petitioner claims that he is entitled to post-conviction relief because of ineffectiveness of both of his retained counsel. Regarding the plea proceedings, petitioner now claims the government failed to timely notify him that counsel was under investigation, failed to review the evidence, and was thereafter subject to disbarment.
As to the alleged ineffectiveness of counsel claimed by petitioner, the Supreme Court of the United States has recognized that "the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441 (1970). So as to avoid a miscarriage of justice, evidence of innocence is a requisite, when not even the existence of a conceitedly meritorious constitutional violation is considered sufficient, to allow the court to reach the merits of a barred habeas claim, so that a petitioner can cross through the gateway and argue the merits of the underlying claims in his successive habeas petition. Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851 (1995).
Counsel can deprive a defendant of the right to effective assistance, simply by failing to render "adequate legal assistance" Cuyler v. Sullivan, 446 U.S. 335, 435-350, 100 S.Ct. 1708 (1980), (actual conflict of interest adversely affecting lawyer's performance renders assistance ineffective). There is a two-prong test for evaluating claims of ineffectiveness of counsel. First, the petitioner must show that his counsel's performance was deficient and secondly, must show that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). Unless a petitioner makes both showings, it cannot be said that the conviction or sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland, supra, at 687. The essence of an ineffective assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect. Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842 (1993); Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574 (1986).
Defendant was scheduled for trial on March 6, 2000, at which time he and his counsel notified the Court, after the jury had been selected, that they were willing to enter a plea. On the verbal plea agreement, which included a nine (9) level enhancement for the amount of money laundering involving $10.7 million, a supervisory role adjustment, and a sentence recommendation by the government of eighty seven (87) months, the presiding Judge Hon. Héctor M. Laffitte accepted the defendant's plea conducting the Rule 11 proceedings.
To determine that the plea was knowing, intelligent and voluntary, that the plea colloquy is well-done, clear, and through, and no challenge is made to its adequacy, that defendant was not misled, absent a claim of innocence, one must examine the record in a fashion similar to a request for withdrawal of a plea. United States v. Torres Rosa, 209 F.3d 4 (1st Cir. 2000); United States v. Santiago, 229 F.3d 313 (1st Cir. 2000); United States v. Gonzalez-Vazquez, 34 F.3d 19 (1st Cir. 1994). See United States v. Darnell A. Moore, slip op. No. 02-2373 (1st Cir. March 29, 2004).
During the change of plea proceedings counsel for defendant at the time, Mr. Pérez-Olivo, made reference to prior negotiations with the government which defendant had rejected. Counsel indicated that defendant did not want to plea at that time. Defendant Hayes, who was present in the Court and did not need the services of an interpreter, came forward shortly after counsel's explanations and proceeded to make his plea (Tr. 3/6/2000, pp. 5-7). During the Rule 11 proceedings, the Court asked defendant whether he was satisfied with the way Mr. Pérez-Olivo was representing him and he answered in the affirmative without a doubt (Tr. 3/6/2000, p. 9). The Court also appraised defendant that his counsel, Mr. Pérez-Olivo, was under investigation for disciplinary proceedings. Defendant Hayes was adamant in retaining Mr. Pérez-Olivo as his counsel, indicating that he was satisfied with his services, and that he had no objection to the admonishments provided by the presiding judge (Tr. 3/6/2000, pp. 8-9). After this preamble, the Court then proceeded to take the defendant's plea. Defendant was further advised that the Court need not follow the recommendations as to the sentence to be imposed and that the specific guideline range in his case would be determined after the presentence report (Tr. 3/6/2000, pp. 16-17). Upon conclusion of the Rule 11 colloquy, the Court once more inquired if defendant was satisfied with his counsel, which he once more responded in the affirmative (Tr. 3/6/2000, p. 18).
Petitioner herein has not made at any point in time any claim of legal or factual innocence, except for the clarification he made after the government expressed its version of the facts during the change of plea hearing that he was not the employee of one of the main codefendants charged in the conspiracy related to the drug trafficking activities or the money laundering offense for which petitioner was convicted. The criminal record also shows there were recordings of wiretap evidence against the defendant (Docket entry #434, attachment to the government's designation of evidence), in addition to surveillance for a period of at least a year. During the time span of 21 to 24 months, monies deposited in the money laundering scheme were at least 40 million dollars. Defendant's clarification to the government's version of facts was that he was not an employee of the codefendant and that basically he was not being paid. Still, he admitted to having assisted, helped, and conspired to launder money from illegal drug proceeds, thus pleading guilty to Count Three of the second superseding indictment that charged him with a violation to 18 U.S.C. § 1956(h) (Tr. 3/6/2000, p. 21).
Title III, 18 U.S.C. § 2510-2522.
The government's reply draws attention to the fact that above petitioner had also retained the services of an out of state counsel, Rayfield M. McGhee, Esq., in the southern district of Florida, to negotiate his plea, although said counsel did not formally appear on his behalf in this district. Therefore, Petitioner entered his plea under the advise of two separate counsel. If anything, petitioner showed having ample opportunity and resources to receive legal counseling before and after he entered his plea.
In view of the foregoing, defendant's guilty plea was knowingly made under the advise of competent counsel. Accordingly, petitioner's claims of ineffective assistance of counsel at the change of plea stage fail.
Initial Plea Negotiations
Petitioner asserts that he was prejudiced because he tendered a plea which was substantially higher to the initial communications between his counsel and the government.
As explained above, Petitioner's guilty plea was knowingly made under the advise of competent counsel. During the change of plea proceedings counsel for defendant at the time, Mr. Pérez-Olivo, made reference to prior negotiations with the government through AUSA Miguel Pereira for two years, which he then informed defendant had rejected. Counsel indicated that the defendant did not want to plea at that time. Defendant Hayes, who was present in the Court and did not need the services of an interpreter, came forward shortly after counsel's explanations and proceeded to make his plea (Tr. 3/6/2000, pp. 5-7). Accordingly, the record clearly shows that defendant rejected the government's initial plea conversations. Therefore, his claims that he tendered a plea that was substantially higher to the initial communications between his counsel and the government have been waived and should be denied.
Sentencing
Insofar as the sentencing stage, petitioner claims ineffectiveness because of sentencing counsel not challenging the stipulation (verbal plea agreement) and the enhancement to the role in the offense, not correctly calculating the offense level base of the plea, and not filing a direct appeal.
A defendant who accepts responsibility for the offense of conviction receives a basic two-level decrease in his offense level. See USSG § 3E1.1(a); United States v. Royer, 895 F.2d 28, 29 (1st Cir. 1990). Under certain circumstances, however, a defendant who qualifies for a two-level decrease under section 3E1.1(a) may receive an additional one-level decrease if he "timely notif[ies] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently."
At the sentencing proceedings, defendant was represented by another retained counsel, Francisco López-Romo, Esq. Counsel López-Romo's letter to the Court to enter his appearance on behalf of the defendant for purposes of sentencing reinstates the defendant's willingness to submit to the government, for purposes of the plea offering, the true nature of his involvement in the offense charged. During defendant's sentencing proceedings, he waived the time period to review the presentence report to avoid delays in the preparation of same. Counsel López-Romo further indicated that since assuming defendant's legal representation, they had been in contact at least four times a week. After the presiding judge personally addressed the defendant in regard to the waiver of the presentence report prior-notice of 35 days, he affirmatively confirmed the waiver (Tr. 6/29/2000, pp. 5-6).
The sentencing court made a further inquiry as to the change of plea hearing and directly propounded to defendant if he wished to withdraw his plea. Even if the defendant was not totally satisfied with his former counsel, he was clear that he did not want to withdraw the plea, although given an opportunity then to do so (Tr. 6/29/2000, p. 7). There were several corrections requested by counsel and granted by the Court as to the presentence report. The sentencing court requested that a motion be filed by the Probation Office informing that said corrections were made. Counsel vehemently argued at sentencing as to the nine (9) level increase for the amount of monies involved of $10.7 million. As a result, the offense level computation was finally made on the basis of funds in excess of $6 million but less than $10 millions. Thus, the sentencing court granted a one (1) level reduction in the enhancement to be applied on the laundering of monetary instruments, that is, defendant received an eight (8) level enhancement instead of a nine (9) level enhancement (Tr. Id. pp. 17-18 and 27).
Counsel also successfully argued and obtained a one (1) level reduction in the role adjustment, from managerial to supervisory under U.S.S.G. § 3B1.1(c). (Tr. Id. pp. 18-19 and 30). In addition, counsel argued and obtained a three (3) point reduction for acceptance of responsibility. (Tr. Id. pp. 17 and 27). Therefore, notwithstanding the delay in defendant informing the Court and the government at the eve of trial that he would be entering a plea, the sentencing court subsequently gave petitioner the extra level and considered a three level reduction for his acceptance of responsibility. United States v. Martinez-Vargas, 321 F.3d at 248 (1st Cir. 2003).
Accordingly, the total offense level was established at twenty seven (27) with a Criminal History category of One. The applicable guideline range provided a term of imprisonment of seventy (70) to eighty seven (87) months, as mentioned during plea proceedings. Petitioner was sentenced at the lowest end of the guideline to a term of imprisonment of seventy (70) months, which was substantially lower to petitioner's plea. Therefore, there were no sentencing error computations.
In sum, through his guilty plea colloquy, petitioner waived his rights and on more than one occasion indicated that he was satisfied with the services of his counsel. Additionally, at the time of imposition of sentence and while represented by Counsel López-Romo, petitioner was questioned as to whether he was satisfied with the services of his previous counsel during the change of plea and Rule 11 proceedings and petitioner answered in the affirmative (Tr. 6/29/000, p. 7).
Consequently, petitioner was represented by a duly licensed attorney at all critical stages of his representation. United States v. Davis, 239 F.3d 283, 285 (2nd Cir. 2001). Appeal
Petitioner claims that his counsel was ineffective inasmuch he was instructed to file an appeal and his counsel failed to do so.
In Roe v. Flores-Ortega, 528 U.S. 470, 476-77, 120 S.Ct. 1029 (2000) (quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984)), the Supreme Court applied the standard for claims of ineffective assistance of counsel when a defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken. In Peguero v. United States, 526 U.S. 23, 119 S.Ct. 961 (1999), the Highest Court held that, "petitioner is not entitled to habeas relief based on a Rule 32(a)(2) violation when he had independent knowledge of the right to appeal and so was not prejudiced by the trial court's omission." Id. 119 S.Ct. at 965. See also United States v. Torres-Otero 192 F.3d 12, (1st Cir. 1999).
Fed.R.Crim.P. 32(j) states: Defendant's Right to Appeal.
(1) Advice of a Right to Appeal.
(A) Appealing a Conviction. If the defendant pleaded not guilty and was convicted, after sentencing the court must advise the defendant of the right to appeal the conviction.
(B) Appealing a Sentence. After sentencing — regardless of the defendant's plea — the court must advise the defendant of any right to appeal the sentence.
(C) Appeals Cost. The court must advise a defendant who is unable to pay appeal costs of the right to ask for permission to appeal in forma pauperis.
(2) Clerk's Filing of Notice. If the defendant so requests, the clerk must immediately prepare and file a notice of appeal on the defendant's behalf.
Still, even a violation to above Rule 32 would not entitle a petitioner to § 2255 relief in all circumstances. In general, a court's failure to give a defendant the advice required by the Federal Rules is a sufficient basis for collateral relief only when the defendant is prejudiced by the court's error. United States v. Torres-Otero, supra at 13.
The record shows that petitioner was fully aware of his right to appeal. Evidence of this is the fact that the sentencing court appraised petitioner of his right to file an appeal within ten (10) days (Tr. 6/29/000, p. 29). Nonetheless, petitioner chose to waive his right to appeal. Furthermore, petitioner has made no showing that he instructed counsel to file a direct appeal to his conviction. As such, he would not be entitled to relief.
Pre-Sentence Report
Petitioner has also raised claims that the presentence report was not amended or corrections made as ordered by the Court. The record shows that petitioner has attempted to benefit from the Bureau of Prison's residential abuse program and made a written request to the sentencing court. The matter was referred to the Probation Office for recommendation (Docket entry #1101). Previously, Probation Officer Torres-Baerga, had informed the Court that all the corrections to the presentence report had been made and were made available, together with amended page 13, to all parties (Docket entry #1055). All corrections to the presentence report required by the Court at the time of sentencing were duly prepared and incorporated. Accordingly, this claim is also without merit.
Indictment
Finally, petitioner's argument that his counsel failed to challenge the Indictment is also without merit. As the government submits, petitioner's time to raise challenges to his plea have passed upon having made an admission of all elements of the charges by means of a valid, knowing, and voluntary plea. A valid plea serves as waiver of all challenges to the factual and legal foundations of the charges.United States v. Martinez-Martinez, 69 F.3d 1215, 1223-1224 (1st Cir. 1995); United States v. Chantal, 902 F.2d 1018, 1020 (1st Cir. 1990).
Summary dismissal of a § 2255 motion is appropriate when the petition is inadequate on its face or is conclusively refuted as to the alleged facts by the files and record of the case, or where the alleged grounds for relief are based on bald allegations without sufficiently key particular and supportive factual allegations. Barrett v. United States, 965 F.2d 1184, 1186 (1st Cir. 1992). Dismissal of the post-conviction motion is appropriate when key factual averments are contradicted by the record. United States v. LaBonte, 70 F.3d 1396, 1413 (1st Cir. 1995); United States v. McGill, 11 F.3d 223, 226 (1st Cir. 1993).
Thus, and in view of the foregoing, it is recommended that the petition, being without merits, BE DISMISSED.
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").