Opinion
Civil Case No. 2:03-CV-1059 TS, Criminal Case No. 2:02-CR-229 TS.
June 24, 2004
ORDER DENYING AND DISMISSING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE 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 Sentence (hereinafter referred to as "Petitioner's § 2255 Motion"), filed December 1, 2003. The government filed its response on March 22, 2004. Petitioner is proceeding pro se in this matter.
The Court, having considered the motions and pleadings, having reviewed the file, and being otherwise fully informed, will DENY Petitioner's § 2255 Motion and dismiss this case, as set forth below.
DISCUSSION
The Court makes the initial finding that Petitioner's § 2255 Motion was timely filed; Petitioner's judgment was entered on February 19, 2003, and Petitioner's § 2255 Motion was filed on December 1, 2003, within the one-year limitations period set by 28 U.S.C. § 2255(1).In Petitioner's § 2255 Motion, four grounds are raised, all alleging ineffective assistance of counsel. Petitioner has divided his claims into four areas: 1) that Petitioner received a sentence seven months higher than the one "promised" by his trial counsel; 2) that trial counsel told Petitioner he would receive a certain sentence, was irresponsible, "suspend[ed]" the court, and apparently didn't properly emphasize that Petitioner had no prior criminal record; 3) that trial counsel failed to inform Petitioner of a supposed reduction due to being a deportable alien, having accepted a plea bargain, and due to the hardships arising from his status as a deportable alien; and 4) that Petitioner should have been given a downward departure in this case because of the allegedly harsher sentence he faced due to his deportable alien status, given his lack of a prior record.
The government responds that: 1) Petitioner, at the time of his guilty plea, expressly waived all rights to collateral appeal under § 2255; 2) Petitioner is procedurally barred from raising his claims regarding sentencing, guideline application, or departure because those issues were not raised by way of direct appeal; and 3) Petitioner has presented no evidence that his trial counsel was ineffective to a degree that would violate his rights under the Sixth Amendment.
Based upon the Court's ruling herein that Petitioner's waiver of his collateral appeal rights bars this suit, the Court will not address the government's further arguments.
I. APPEAL WAIVER
In the November 26, 2002, plea agreement, Petitioner waived both his direct and collateral appeal rights as follows:
Fully understanding my right to appeal my sentence . . ., and in consideration of the concessions and commitments made by the United States in this plea agreement, I knowingly and voluntarily waive my right to appeal any sentence imposed upon me, and the manner in which the sentence is determined, on any of the grounds in 18 U.S.C. § 3742 . . .
I also knowingly and voluntarily waive my right to challenge my sentence, and the manner in which the sentence was determined, in any collateral review motion, writ or other procedure, including but not limited to a motion brought under 28 U.S.C. § 2255.
Plea agreement at 3 (emphasis added). Under the plea agreement, Petitioner agreed to enter a plea of guilty to Count II, and waive his appeal rights. In consideration therefor, the government agreed to dismiss Count I, not contest application of the "safety valve," if applicable, recommend a three-step reduction for acceptance of responsibility, and recommend sentencing at the low end of the guideline range. Plea agreement at 4.
The plea agreement further sets forth that, if the government were to appeal the sentence, Petitioner would be released from his appeal waiver. The Court notes that the government has not filed an appeal, and the time for direct appeal has passed.
A. Legal Standard.
The Tenth Circuit has long recognized that a defendant should be held strictly to the terms of a lawful plea agreement. United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir. 1998) (internal citations omitted) ("This court will hold a defendant to the terms of a lawful plea agreement"). That includes instances when, as a part of the plea agreement, a defendant has waived his right to appeal. "A waiver of collateral attack rights brought under § 2255 is generally enforceable where the waiver is expressly stated in the plea agreement and where both the plea and the waiver are knowingly and voluntarily made." United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). Therefore, a collateral appeal waiver is enforceable if it is: 1) expressly stated in the plea agreement, and 2) both the plea and waiver are knowingly and voluntarily made.
1. "expressly stated"
The express language of the plea agreement, quoted above, provides that Petitioner "knowingly and voluntarily waive[d his] right to challenge [his] sentence, and the manner in which the sentence was determined, in any collateral review motion, writ or other procedure, including but not limited to a motion brought under 28 U.S.C. § 2255." Not only does this language provide for a clear, express waiver of collateral appeal rights, it also references the exact statutory provision under which this action is brought — § 2255. The Court detects no ambiguity whatsoever in the language. Therefore, the Court finds that the collateral appeal waiver is "expressly stated in the plea agreement." Id.
2. "knowingly and voluntarily made"
To be considered valid and enforceable, both the plea of guilty and the collateral attack waiver must also be "knowingly and voluntarily made." Id. Fed.R.Crim.P. Rule 11 establishes certain procedures for the entry of a plea of guilty, and requires the Court to conduct a colloquy directly with the defendant to ensure that, among other things, the plea agreement and resulting plea are entered into voluntarily and knowingly by a defendant.
In this case, Petitioner entered a plea of guilty on November 26, 2002, and the Court entered into the above-referenced Rule 11 colloquy with him at that time. The Court explained to Petitioner that it had the responsibility of ascertaining that any plea was entered into freely and voluntarily and not under duress. Petitioner affirmed that he was pleading guilty voluntarily and of his own free will. The Court inquired whether Petitioner had had the plea agreement read to him, discussed it with his attorney, and whether he understood it. Petitioner responded in the affirmative. Tr. at 14-15. After both counsel summarized the terms of the plea agreement for the record, Petitioner confirmed that he had no questions about it and that he understood it. Id.
Petitioner did ask of the Court: "If I sign it does this mean they are going to give me the five years? What does that mean?" The Court responded, "Well, Mr. Ledesma, as we'll discuss in a few minutes, what actual sentence you may receive cannot be determined today." Petitioner replied, "Okay." Tr. at 15.
Petitioner confirmed that no one had offered any inducements or made any threats or forced him to enter his guilty plea and, further, that no one offered him anything that is not contained in the plea agreement:
Court: Mr. Ledesma, has anyone offered you any inducements or threatened you or forced you to plead guilty or to enter into the plea agreement?
Petitioner: No, no one.
Court: Has anyone promised you anything that is not contained in the plea agreement?
Petitioner: How is that?
Court: Has someone promised you something, any kind of side deal, anything that is not already reflected in the plea agreement?
Petitioner: No.
Tr. at 6. The Court then made the finding that Petitioner was pleading guilty of his own free and voluntary will. The Court confirmed that Petitioner was satisfied with the performance of trial counsel. When the Court inquired of Petitioner: "Are you fully satisfied with the advice that Mr. Jardine has given you and his representation of you?" Petitioner responded, "Yes." Tr. at 7.
Most importantly, though, was the Court's explicit attention to the appeal waiver itself:
Court: . . . Did you mention there is a waiver of his appeal rights?
Prosecutor: There is, Your Honor. There is a waiver contained in this plea agreement.
Court: Mr. Ledesma, have you discussed the fact that you are waiving your rights to appeal in certain circumstances with Mr. Jardine?
Petitioner: Yes.
Court: Do you understand that this plea agreement provides that you will be waiving some of your rights to appeal your sentence?
Petitioner: Yes.
* * *
Court: Do you also understand that under some circumstances you will have the right to appeal your sentence, but you have severely limited your right to appeal in this plea agreement?
Petitioner: Yes.
Tr. at 16-17; 20. At the conclusion of the plea colloquy, both counsel stated for the record that they were satisfied that the Court had complied with all provisions of Fed.R.Crim.P. 11. Tr. at 21-22.
Finally, the Court concluded by finding that Petitioner knew his rights and waived them, that his plea was entered knowingly and voluntarily, and was supported by an independent basis in fact containing each of the essential elements of the offense. Petitioner then pleaded guilty to Count II and the Court accepted the guilty plea. Tr. at 22.
In the written plea agreement, Petitioner signed his name beneath the following statements, among others:
No threats or promises of any sort have been made to me to induce me or to persuade me to enter this plea. No one has told me that I would receive probation or any other form of leniency because of my plea. I have discussed this case and this plea with my lawyer as much as I wish to. I am satisfied with my lawyer. My decision to enter this plea was made after full and careful thought, with the advice of counsel, with a full understanding of my rights, with a full understanding of the facts and circumstances of the case and with a full understanding of the consequences of the plea. I was not under the influence of any drugs, medication, or intoxicants when the decision to enter the plea was made, and I am not now under the influence of drugs, medication or intoxicants. I have no mental reservations concerning the plea. I understand and agree to all of the above. I know that I am free to change or delete anything contained in this statement. I wish to make no changes because all of the statements are correct.
Plea agreement at 4-5 (paragraph numbers and tabs omitted). Finally, at sentencing, the Court advised Petitioner of his right to appeal "consistent with the written plea agreement that you entered into in this case." Tr. at 17.
Considering the above, the Court finds that both Petitioner's plea of guilty and his collateral appeal waiver were "knowingly and voluntarily made." Id. Having found that the collateral appeal waiver was expressly stated in the plea agreement, and was knowingly and voluntarily made, the Court finds that the waiver is valid and enforceable.
B. Claims Which May Survive Waiver.
The Tenth Circuit has outlined several exceptions that may render an otherwise enforceable waiver inapplicable. Those exceptions are "where the district court relied on an impermissible factor such as race, where ineffective assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid, where the sentence exceeds the statutory maximum, or where the waiver is otherwise unlawful."United States v. Elliot, 264 F.3d 1171, 1173 (10th Cir. 2001) (emphasis added). Once it has been established that Petitioner entered into the express waiver both knowingly and voluntarily, the appeal must be dismissed unless Petitioner can demonstrate that one of those exceptions apply. Atterberry, 144 F.3d at 1300.
The Court finds that Petitioner's arguments that he received ineffective assistance of counsel for trial counsel's alleged failures, outlined above, are potential exceptions to an enforceable waiver. Elliot, 264 F.3d at 1173. The Court will proceed with its analysis of Petitioner's claims as they relate to ineffective assistance of counsel.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
The Tenth Circuit has ruled that, under some circumstances, a claim of ineffective assistance of counsel brought in the context of a § 2255 Motion may survive a valid collateral appeal waiver. "[A] claim of ineffective assistance of counsel in connection with the negotiation of a [plea] agreement cannot be barred by the agreement itself." Cockerham, 237 F.3d at 1184 (quotingJones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1998)) (emphasis added). See Jones, 167 F.3d at 1145 ("the right to mount a collateral attack pursuant to § 2255 survives [a waiver] only with respect to those discrete [ineffective assistance] claims which relate directly to the negotiation of the waiver." (emphasis added)).
The Cockerham court identified two critical components that must exist for a § 2255 ineffective assistance of counsel claim to survive a valid waiver. "The first is whether there is any basis for a claim of ineffective assistance of counsel, and the second is whether that ineffectiveness claim pertains to the validity of the plea." Id. at 1187. The Tenth Circuit further held that "a plea agreement waiver of postconviction rights does not waive the right to bring a § 2255 petition based on ineffective assistance of counsel claims challenging the validity of the plea or the waiver." Id. In United States v. Clingman, the Tenth Circuit has provided further direction:
To prevail on his ineffective assistance claim, [Petitioner] must show that he was prejudiced by his trial counsel's allegedly deficient performance. In the context of a guilty plea, this requires [Petitioner] to show that counsel's deficient performance "affected the outcome of the plea process" and "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."288 F.3d 1183, 1186 (10th Cir. 2002) (emphasis in original).
In this case, Petitioner raises four grounds under ineffective assistance of counsel. The Court, liberally construing Petitioner's arguments as a pro se litigant, considers the following arguments — that trial counsel: "lied" when he "promised" Petitioner a 30-month sentence; was "irresponsible" and caused undue delay; failed to inform Petitioner of his alleged right to a reduction due to being a deportable alien; and failed to adequately argue for a downward departure based upon the allegedly harsher sentence Petitioner received as a deportable alien with, even with no prior record.
The Court notes that trial counsel made extensive argument for further downward departure, both written in the form of a Motion for Downward Departure, and as lengthy oral argument at the sentencing hearing.
The Court notes that Defendant was facing a minimum mandatory sentence of 60 months, but was sentenced to a much lower sentence — 37 — months — by virtue of cooperation and lack of criminal history, pursuant to the "safety valve" found at USSG § 5C1.2.
Only claims that "challeng[e] the validity of the plea or the waiver" itself may survive collateral appeal waiver. Id. "Collateral attacks based on ineffective assistance of counsel claims that are characterized as falling outside that category are waivable." Id. The Court finds that, with the exception of Petitioner's argument that trial counsel "lied" to him, none of Petitioner's ineffective assistance arguments pertain to the validity of the plea or waiver. Petitioner's remaining arguments relate only to his general dissatisfaction with trial counsel, or to sentencing issues, which are not permissible, given the Court's previous ruling and the caselaw just cited. Those claims do not assert that the appeal waiver or the plea itself was anything other than knowing and voluntary, nor is it argued that the alleged ineffective assistance of counsel "pertains to the validity of the plea." Rather, Petitioner's arguments center on issues as they relate to sentencing. "[G]arden variety attacks" on sentencing raised in the guise of a claim of ineffective assistance of counsel are just the type of issues Petitioner may effectively waive. Cockerham, 237 F.3d at 1185. As these allegations do not touch on the plea or the waiver, the Court finds that they were waived by the valid collateral appeal waiver, and Petitioner is barred from raising them here.
The Court will address Petitioner's arguments contained in ground one — that trial counsel "lied" when he "promised" Petitioner a 30-month sentence — because it could conceivably question the validity of the plea itself.
As noted above, the Court confirmed at the change of plea hearing that Petitioner had not been made any promises or "side deals" that are not contained in the plea agreement itself. Tr. at 6-7. The plea agreement promises no specific sentence, but only that Petitioner may qualify for the "safety valve," acceptance of responsibility, a low-end sentence, and that Count I would be dismissed at sentencing. Petitioner received all of these benefits.
While Petitioner claims that his resulting guideline range is higher than he initially expected or was allegedly told or "promised" by trial counsel, that fact alone does not render the guilty plea invalid. The record demonstrates that Petitioner understood this. At the change of plea hearing, the Court advised Petitioner: "Well, Mr. Ledesma, as we'll discuss in a few minutes, what actual sentence you may receive cannot be determined today." Petitioner responded, "Okay." Tr. at 15. The Court continued an extended colloquy regarding this precise issue:
Court: . . . the Court will not be able to determine what guideline range, therefore what sentence applies to you, until after a presentence report has been compiled by the probation office and you and the United States have had a chance to review that report and to challenge any of the facts that [are] contained in it. Do you understand that?
Petitioner: Yes.
Court: Do you understand also, Mr. Ledesma, that the sentence that may be imposed upon you at the end of the day may be different from that which you believe it to be or what Mr. Jardine may have represented to you it could be?
Petitioner: Yes.
Court: Do you understand, Mr. Ledesma, that if the sentence does turn out to be different from what you expect, that once I have accepted your guilty plea, you will be bound by it and you will not be allowed to withdraw the guilty plea?
Petitioner: Yes.
Court: It's important, Mr. Ledesma, that you understand that if the sentence is more severe than you expected, but is still within the Sentencing Guidelines, that once I have accepted your plea, you will be bound by it? Do you understand that?
Petitioner: Yes.
Court: Do you also understand that once the guideline range has been determined for you, that I have the authority in some circumstances to impose a sentence that is either higher or lower than that called for by the guideline range?
Petitioner: Yes.
Tr. at 19-20 (emphasis added). The Court finds that Petitioner's guilty plea was valid, and that Petitioner understood the possibility of variance between what trial counsel advised the sentence could be and the time to which he would ultimately be sentenced. Further, Petitioner has failed to demonstrate ineffective assistance of counsel; specifically, that he was prejudiced by trial counsel's actions. To the contrary, trial counsel argued vigorously and competently and secured for his client a sentence far lower than the one Petitioner was facing (and indicated to the Court that he knew he was facing) at the time of the change of plea hearing. Therefore, the Court finds that there is no "basis for a claim of ineffective assistance of counsel," and no "ineffectiveness [as it] pertains to the validity of the plea." Cockerham at 1187. Thus, Petitioner's claims do not survive the legitimate and binding waiver of Petitioner's collateral appeal rights.
As the Court has found that Petitioner has effectively and enforceably waived his right to appeal all of the issues raised in his § 2255 Motion, the Court will not engage in the traditional Strickland analysis, nor will it address the remaining sentencing issues. However, the Court would note that it does not believe that trial counsel was ineffective, or that Petitioner was prejudiced by trial counsel's performance.
CONCLUSION
Based upon the above, it is hereby
ORDERED that Petitioner's § 2255 Motion is DENIED; It is further
ORDERED that, pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an evidentiary hearing is not required.
The Clerk of Court is directed to close this case forthwith.
SO ORDERED.