Opinion
No. 01 Civ. 3967 (MBM)
August 15, 2002
Attorney for Petitioner: (pro se) RAYMOND JACKSON No. 40276-054, USP Allenwood, from White Deer, PA.
Attorney for Respondent: JAMES F. COMEY, ESQ., United States Attorney for the Southern District of New York and SHARON L. MCCARTHY, ESQ., Assistant U.S. Attorney, from New York, NY.
OPINION AND ORDER
Petitioner Raymond Jackson pleaded guilty two days into his trial on numerous racketeering and murder charges that could have resulted in life imprisonment, to charges that could have resulted in a sentence of 54 years' imprisonment absent agreement to a lower term. He did so pursuant to an agreement that provided for a sentence of 35 years' imprisonment, but provided also that Jackson would give up the right to appeal or to challenge his conviction pursuant to 28 U.S.C. § 2255. Despite that agreement, entered into when he was facing life imprisonment, Jackson petitions under 28 U.S.C. § 2255 to set aside the judgment entered against him on two grounds. First, Jackson asserts that the lawyer who negotiated to obtain a 35-year sentence for him failed to provide effective assistance, and should have prosecuted an appeal arguing that Jackson's plea was invalid as to two of the three counts to which he pleaded guilty. Second, Jackson asserts that the court failed to explain the elements of the crimes to which he pleaded guilty and to assure that he was competent to enter a plea.
For the reasons set forth below, Jackson's application to set aside the judgment is denied, and his petition is dismissed.
I.
Jackson was indicted in December 1997 and charged, along with 11 codefendants, with participating in an enterprise known as the Preacher Crew that engaged in numerous acts of racketeering, including murder, robbery, extortion and narcotics trafficking. The charges against Jackson in the indictment, S11 96 Cr. 515, included participation in the enterprise in violation of 18 U.S.C. § 1962 (c) and (d); conspiracy to commit murder, attempted murder and murder in aid of racketeering, in violation of 18 U.S.C. § 1959 (a)(1) and (5); and using and carrying firearms in relation to crimes of violence, in violation of 18 U.S.C. § 924 (c). His trial started on April 5, 1999 and ended on April 7, 1999 when, during cross-examination of the government's second witness, Jackson, after a couple of false starts, pleaded guilty, pursuant to a written plea agreement, to three counts of the indictment: Count Twenty, which charged him with conspiring to murder George Ford in aid of the racketeering enterprise, in violation of 18 U.S.C. § 1959 (a)(5); and Counts Seventy-Seven and Eighty, which charged him with using and carrying a weapon in relation to the murders of Greg Hawkins and Sheila Berry, respectively, in violation of 18 U.S.C. § 924 (c).
The plea agreement, in the form of a letter dated April 7, 1999 ("4/7/99 Letter"), signed by Jackson and his attorney, stipulated a sentence, based on the crimes to which Jackson pleaded guilty and his criminal history, of 35 years' imprisonment. (4/7/99 Letter at 3) That agreement provided also that, "the defendant will neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, a sentence of thirty-five years' imprisonment. . . ." (Id. at 4)
Jackson was placed under oath before he entered his plea. (4/7/99 Tr. 400) The allocution included not only a determination following detailed questioning that Jackson was competent to enter the plea (id. at 400-02), and that, at the time he declared himself ready to plead guilty (id. at 400), he was satisfied with his lawyer's representation (Id. at 402), but also that he understood each of the charges to which he had announced an intention to plead guilty and the penalties that attached to each and to all in the aggregate (id. at 405-08). In addition, that allocution included Jackson's acknowledgment that he had signed and understood the plea agreement (id. at 409-10), in particular the provision that he could not appeal a sentence within the agreed-upon range (id. at 410-12). As to the murder of George Ford, Jackson acknowledged that he had aided and abetted that murder by pointing out Ford to other members of the enterprise so they could kill him. (Id. at 415) As to the weapons charges, Jackson responded that he had provided guns to be used to kill Greg Hawkins and Sheila Berry, knowing the purpose for which they were to be used, and had been present for that intended use. (Id. at 416-17)
On June 29, 1999, Jackson was duly sentenced to 35 years' imprisonment. That part of the transcript of Jackson's sentencing that records what happened after sentence was imposed, which plainly includes a mistranscription of what was said, as follows:
THE COURT: I believe — did the agreement include the right to appeal?
MS. McCARTHY: Yes, the right to appeal the sentence of 35 years, yes.
THE COURT: What about otherwise?
MS. McCARTHY: No, not otherwise, your Honor.
THE COURT: Then I will tell Mr. Jackson that he has a right to appeal if he believes there's any irregularity either with his prosecution or, I guess, his plea and if he cannot afford counsel, one will be appointed for him at public expense.
(6/29/99 Tr. 8) Quite plainly, my inquiry was, "did the agreement include a waiver of the right to appeal?" The underscored phrase was omitted. That is the obvious sense of the discussion that occurred during that portion of the proceedings, which makes no sense whatever without insertion of the underscored phrase. Jackson claims that he pressed counsel to file an appeal, and was advised by counsel that he had no right to appeal. (Petition Exs. A-E) Notably, the first objectively verifiable bit of evidence that Jackson did seek to appeal is a copy of a note to his lawyer dated February 1, 2001 (id. Ex. B); the time to appeal ran ten days after the sentencing date, June 29, 1999, or more than 18 months before the date of that note. See Fed.R.App.P. 4(b).
II.
Jackson cannot show that his lawyer was ineffective for failure to file an appeal that was barred by the terms of the agreement Jackson signed and acknowledged. Knowing and voluntary waiver of a defendant's right to appeal a sentence within an agreed Guidelines range is enforceable. See United States v. Rivera, 971 F.2d 876, 896 (2d Cir. 1992). A lawyer cannot be faulted for failure to pursue an appeal that is legally barred. To the extent that Jackson relies on what he claims is my statement to him after he was sentenced that he had the right to appeal, that reliance is misplaced for two reasons. First, as shown at pages 3-4 above, the transcript is obviously incorrect. Further, even if the transcript were to be accepted as accurate, the statement in question — made after sentence was imposed — necessarily cannot have been relied on by Jackson at the time he entered his plea, and therefore cannot change the clear terms of the plea agreement he signed, which — again — contained a waiver of the right to appeal or to file this petition.
Further, a defendant who pleads guilty "may not raise nonjurisdictional challenges either on direct appeal or by collateral attack." Hayle v. United States, 815 F.2d 879, 881 (2d Cir. 1987) (citations omitted). Here, Jackson does not challenge the jurisdiction of the court to try or sentence him in connection with any of the counts to which he pleaded guilty.
Finally, to the extent that Jackson has provided a preview of the arguments to be presented on his proposed appeal, they lack merit. As the transcript pages cited at page 3 above reflect, Jackson was questioned in detail to establish his competence to enter the plea, and that he understood the charges against him. Those charges, in any event, are not complicated: murder and use of weapons in the commission of two other murders are readily understood, and were well understood by Jackson. (4/7/99 Tr. at 405-08) Particularly, as to the murder, Jackson acknowledged that he had aided and abetted it by pointing out the victim so that he could be killed (id. at 415), and as to the firearms charges, Jackson responded that he had provided the guns for the two murders in question, knowing the purpose for which they were to be used. (Id. at 416-17) As regards both his competence to enter a plea and his understanding of the charges and the consequences of his plea, Jackson's declarations under oath in court "carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977). See also United States v. Napolitano, 212 F. Supp. 743, 747 (S.D.N.Y. 1963) (Weinfeld, J.) (defendant's statements during guilty plea allocution are "solemn declarations; they are not to be lightly disregarded in favor of his present self-serving assertion"). Jackson's suggestion that his guilty plea to the firearms charges is somehow invalid because there is no corresponding plea or finding of guilt as to the murders themselves is without substance. The statute he pleaded guilty to violating, 18 U.S.C. § 924 (c), charges an independent crime — use of a firearm in connection with a crime of violence. That statute does not require conviction on another charge before a defendant can be found to have violated it. Jackson's conduct as he described it could also have resulted in conviction for either conspiracy to commit murder, or — on an aiding and abetting theory — murder. That there was no such conviction means only that he was fortunate, not that he did not violate 18 U.S.C. § 924 (c).
* * *
For the above reasons, Jackson's application to set aside the judgment of conviction is denied, and the petition is dismissed.