Opinion
No. SA-04-CA-0258-RF (SA-00-CR-429-EP).
April 19, 2005
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is the Memorandum and Recommendation of the United States Magistrate Judge, filed in the above-styled and numbered cause on September 24, 2004. The Magistrate Judge recommended that Petitioner's Motion to Vacate his Sentence (Docket No. 57) pursuant to 28 U.S.C. § 2255 be denied. Plaintiff filed Objections to the Memorandum and Recommendation on October 13, 2004. After due consideration, the Court is of the opinion that the Magistrate Judge's Memorandum and Recommendation should be ADOPTED IN ITS ENTIRETY.
BACKGROUND
On May 10, 2002 pursuant to a plea agreement, Movant pleaded guilty to possession with intent to distribute 5 grams or more but less than 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). On July 16, 2002, Movant sought to represent himself and filed a motion to dismiss his attorney. At a hearing on July 19, 2002, the district court granted counsel's oral motion to withdraw and referred the appointment of counsel to a magistrate judge. On July 23, 2002, Assistant Federal Public Defender Jack Carter was appointed to represent Movant.
Movant again requested that the court allow him to represent himself in motion to proceed pro se filed on August 19, 2002, and subsequently filed a motion to withdraw his guilty plea on September 4, 2002. On September 6, 2002, the district court denied Movant's motion to withdraw the guilty plea and sentenced him to serve 100 months of imprisonment on each count to run concurrently. The record reflects that then U.S. District Judge Prado did not explicitly rule on Movant's August 19, 2002 motion to proceed pro se. Contesting the constitutionality of the relevant statutes, Movant appealed to the Fifth Circuit through Public Defender Carter. On April 23, 2003, the Fifth Circuit affirmed his conviction.
On March 26, 2004, Movant filed his § 2255 Motion to Vacate Sentence and asserted four arguments: (1) his guilty plea was involuntarily entered due to ineffective assistance of counsel; (2) his conviction was obtained by the use of evidence obtained during an unconstitutional search and seizure; (3) his conviction was obtained by the use of evidence obtained during an unlawful traffic stop; and (4) the district court erred in denying his motion to withdraw his guilty plea and his request to represent himself.
After review of Movant's § 2255 Motion and the Government's Response, Magistrate Judge John Primomo recommended that Movant's Motion be denied.
STANDARD OF REVIEW
The Court reviews de novo a Magistrate Judge's Memorandum and Recommendation if a party files specific objections within ten days of service. The Court need not consider objections that are frivolous, conclusive, or general in nature. If there are no specific objections to a Magistrate Judge's Memorandum and Recommendation, the District Court is to review it for findings and conclusions that are either clearly erroneous or contrary to law. In the instant case, Movant timely filed specific objections to the Magistrate Judge's Memorandum and Recommendation, thus warranting de novo review by the Court.ANALYSIS
After de novo review, the Court first finds that Movant's guilty plea was not entered involuntarily or as a result of ineffective assistance of counsel. Movant's guilty plea was intelligent and voluntary and not produced by actual or threatened physical harm or mental coercion. The transcript of the guilty plea hearing reveals that Movant understood the possible penalty and the nature of the charges against him. The transcript also reflects that Movant stated that he entered the plea freely and voluntarily without threats or coercion.
See Bousely v. United States, 523 U.S. 614, 618 (1998); see Matthew v. Johnson, 201 F.3d 353, 365 (5th Cir. 2000).
Blackledge v. Allison, 431 U.S. 63, 74 (1977) ("Solemn declarations in open court carry a strong presumption of verity."); see Matthew, 201 F.3d at 365; see Montoya v. Johnson, 226 F.3d 399, 406 (5th Cir. 2000).
In addition, Movant has provided insufficient evidence to demonstrate ineffective assistance of counsel under the standard set forth by the U.S. Supreme Court in Strickland v. Washington. In Strickland, the U.S. Supreme Court held:
466 U.S. 668, 687 (1984).
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Evaluated under the proper standard of "reasonably effective assistance," the Court upholds the Magistrate Judge's finding that counsel's representation did not fall below an objective standard of reasonableness or prejudice the Defendant. Movant has offered no evidence to show that his attorney Maurer's decision not to file a motion to suppress was in any way deficient. Maurer's affidavit states that Movant understood his right to file a motion to dismiss but chose not to do so in order to receive a benefit for pleading guilty. Although Movant contests the veracity of Maurer's affidavit, Movant testified at the guilty plea hearing that he was satisfied with Maurer's representation and offers insufficient evidence to show that Maurer's conduct fell outside the range of reasonable professional conduct. Moreover, Movant has failed to establish that his attorney's conduct inflicted any prejudice.
Id.
Second, the Court finds that Movant's decision to plea guilty waived his complaints against non-jurisdictional defects such as the stop and the search and seizure.
United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000); See Town of Newtown v. Rumery, 480 U.S. 386 (1987); see United States v. Hoctel, 154 F.3d 506, 507 (5th Cir. 1998) ("As a general rule, a voluntary, unconditional guilty plea waives all nonjurisdictional defects in the proceedings against the defendant." Id. at 507); see United States v. Dees, 125 F.3d 261, 269 (5th Cir. 1997); see United States v. Wilkes, 20 F.3d 651 (5th Cir. 1994).
Third, the Court holds that District Judge Prado's denial of both Movant's request to represent himself and his motion to withdraw his guilty plea was not in error. Movant objects to the Magistrate Judge's finding that Defendant voiced no objections to an appointed counselor and stresses that he filed motions to exercise his right to self-representation before and after counselor Carter was appointed.
In Faretta v. California, the U.S. Supreme Court recognized a defendant's constitutional right to conduct his own defense. The Faretta decision held that the Sixth Amendment guarantees that a defendant in a criminal trial has an independent constitutional right to self-representation and that he may elect to defend himself without counsel when he voluntarily and intelligently elects to do so. The request to proceed pro se, however, must be clear and unequivocal, and a defendant's right to select his own counsel cannot be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. "In determining whether a defendant's Faretta rights have been respected, the primary focus must be on whether the defendant had a fair chance to present his case in his own way."
422 U.S. 806 (1975).
Faretta, 422 U.S. at 807.
United States v. Majors, 328 F.3d 791, 794 (5th Cir. 2003).
Worstell v. State, 2005 WL 708427 (Tex.App. — San Antonio); see United States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998); see Martinez v. State, 640 S.W.2d 317, 320 (Tex.App.-San Antonio 1982, pet. ref'd).
McKaskle v. Wiggins, 465 U.S. 168, 177 (1984).
In the matter at hand, Defendant voluntarily entered a plea agreement and plead guilty to possession with intent to distribute cocaine and to being a felon in a possession of a firearm. After filing his plea agreement and before his sentencing hearing scheduled for July 19, 2002, Movant filed a July 16, 2002 motion requesting that his attorney Robert Maurer be withdrawn. During the July 19, 2002 hearing, U.S. District Judge Prado excused Maurer from the case and counseled Movant of the risk of receiving a longer sentence if he withdrew his guilty plea. District Judge Prado advised Movant to consult with an attorney about whether to withdraw his plea and ordered him to go before a magistrate judge to see if he qualified for a court-appointed lawyer. Judge Prado advised Movant that he would reset the matter for a couple of weeks to afford Movant the opportunity to consult with his new lawyer, and Defendant expressed agreement and satisfaction with the Judge's order. At this time, Movant did not reiterate that he wanted to represent him self, and the Court went into recess.
Judge Prado reset the sentencing hearing for August 13, 2002 and then granted Movant's motion to continue the hearing until the first week of September, 2002. On August 19, 2002, Movant filed motions to proceed pro se and to withdraw his guilty plea. The sentencing hearing occurred on September 6, 2002, and Movant's new attorney, Assistant Federal Public Defender Carter, announced that Movant moved to withdraw his guilty plea. After a brief discussion on the motion, the Judge Prado took a brief recess to make sure that Movant understood his decision and the associated risks.
After the recess, Carter stated that Movant still wished to withdraw his guilty plea. Carter stated that he discussed the risks of the decision with Movant the night before the hearing as well as on the hearing day and stated that he believed Movant was making a rational decision based on all the facts and risks involved. Carter then called Movant to the witness stand and conducted a direct examination. Respondent's attorney cross-examined Movant.
The examination concluded, and Carter argued on Movant's behalf to allow Movant to withdraw his guilty plea. The Court then denied Movant's motion to withdraw his guilty plea. Judge Prado announced that he would proceed with the sentencing, and Movant personally raised several issues that concerned him. Movant challenged the accuracy of details of his indictment, asked Judge Prado if he had any grounds for appeal, requested to hold his infant daughter, inquired about the meaning of "the hard-time clause," and requested time for self-surrender so that he could complete his schooling in barber college. Judge Prado addressed each of these inquiries and asked Movant on multiple occasions if he had anything else he wanted to say.
The record reflects that although Movant was afforded ample opportunities, he at no time verbally expressed a desire to proceed pro se. The record reflects that Movant acceded to the district court's decision to refer him to a magistrate judge for court-appointed counsel and did not object to Carter's continued rep resentation of him. Moreover, the Judge Prado's decision to deny Movant's motion to withdraw his guilty plea served to moot Movant's motion to represent himself. The Court finds that Movant's request to proceed pro se was not made in a clear and unequivocal manner and that Defendant enjoyed fair chance to present his case in his own way because he was afforded the opportunity to move for a withdrawal of his guilty plea. The Court holds that Movant's Sixth Amendment rights were not violated.
CONCLUSION
Accordingly, the Court ORDERS that the Memorandum and Recommendation be ADOPTED IN ITS ENTIRETY and Petitioner's 28 U.S.C. § 2255 Motion to Vacate his sentence be DENIED.
It is SO ORDERED.
FINAL JUDGMENT
On this day the Court entered an order adopting the Memorandum and Recommendation of the United States Magistrate Judge and denying Petitioner's Motion to Vacate (Docket No. 57). The Court now enters its Final Judgment in accordance with Rule 58 of the Federal Rules of Civil Procedure.It is ORDERED that the Memorandum and Recommendation of the Magistrate Judge be ADOPTED IN ITS ENTIRETY.
It is ORDERED that Defendant's Motion to Vacate be DENIED.
It is ORDERED that each party bear its own costs.