Opinion
3:21-cr-16-KRG-KAP-2
08-14-2023
UNITED STATES OF AMERICA, v. DARREN ALSTON, Defendant/Movant
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge.
Recommendation
Defendant/Movant Alston's pro se “Motion for Production of Documents” at ECF no. 1345, was referred to me under 28 U.S.C.§ 636(b)(3). It should be denied.
Report
As the Court recalls, Alston pleaded guilty in October 2022 pursuant to a plea agreement that called for imposition of the statutory minimum sentence of 60 months to a lesser included offense of the charge in the superseding indictment of conspiracy to possess controlled substances with intent to distribute, 21 U.S.C.§ 846, and the Court sentenced Alston on May 23, 2023 in accordance with that plea agreement. There was no direct appeal.
Alston, now arrived at a Bureau of Prisons facility, says “the local rules” entitle him to a “first time free copy of the needed documents in order to appropriately challenge [his] current conviction,” and accordingly he wants a copy of the docket sheet, his plea agreement, and the sentencing transcript “so that he can properly prepare a challenge to his conviction.”
First, Alston is represented by counsel. The motion should be denied as a violation of the rule against hybrid representation.
Second, There is no local rule that gives Alston free copies of anything, much less free copies of the open-ended “needed documents” that Alston claims to need. If Alston writes to counsel, tells counsel that Alston wants him to withdraw, and then files the motion again, there is no sentencing transcript at this point because there was no direct appeal. Typically a transcript is ordered after the filing of an appeal, and assuming Alston is indigent, 28 U.S.C.§ 753(f) gives the Court power to order the transcript to be provided without a fee if the appeal “presents a substantial question.” In other words, Alston or the person who provided him with this motion has it backwards: he has to have an issue on appeal first - in fact he has to have a substantial issue - to get a transcript. He does not get a transcript first so that someone can tell him he has an issue. If Alston wants to buy a copy of his sentencing transcript he can write to the court reporter to make arrangements.
If Alston wants a copy of the docket sheet he can pay for it at the $.10/page rate available to anyone. The same goes for the plea agreement, which is an exhibit not under seal attached to the minute entry for the guilty plea hearing on October 5, 2022, ECF no. 1049.
Third, there is no substance to the motion. There are two sorts of document request expeditions that inmates newly arrived at BOP facilities go on. One is dangerous to them: there is a concerted effort to identify and retaliate against persons who may have cooperated in some way with the government, so courts look at document requests with at least half an eye on the possibility that the movant is being duped or coerced to ask for documents that can get him hurt or killed. The other is a fishing expedition: some inmate with more time in custody convinces the new kid that he can leverage a better result by patronizing the cottage industry of inmate litigation, part of which consists in combing over whatever documents can be obtained to spot an issue. This motion appears to be the latter.
The issues open to Alston are few. The Court of Appeals for the Second Circuit explained it succinctly in Hayle v. United States, 815 F.2d 879, 881 (2d Cir.1987): in the absence of an agreement to reserve issues for appeal, a guilty plea made pursuant to Fed.R.Crim.P. 11 waives all non-jurisdictional challenges to the prosecution. As the Court of Appeals for the Second Circuit also has observed:
A defendant who “pleads guilty unconditionally while represented by counsel may not assert independent claims relating to [the deprivation of constitutional rights that occurred] prior to the entry of the guilty plea.” United States v. Coffin, 76 F.3d 494, 497 (2d Cir.1996). Rather, a defendant “may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within [acceptable] standards ... ” Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973).United States v. Torres, 129 F.3d 710, 715-16 (2d Cir. 1997). Or, as the Supreme Court has stated:
A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack. There are exceptions where on the face of the record the court had no power to enter the conviction or impose the sentence.United States v. Broce, 488 U.S. 563, 569 (1989). In Tollett v. Henderson, 411 U.S. 258, 268 (1973), even before explicitly defining the elements of a Sixth Amendment claim of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court held that to obtain relief a defendant who pleaded guilty while represented by counsel must establish that his attorney's advice to plead guilty was outside the range of competence demanded of attorneys in criminal cases. Alston presents no allegations under either prong of Strickland v. Washington: he does not allege that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment, and he does not allege how that unalleged deficient performance prejudiced the plea negotiations in this case.
A movant who rejects a plea agreement and regrets going to trial must show that but for counsel's deficient performance there is a reasonable probability he and the trial court would have accepted the guilty plea. Lafler v. Cooper, 566 U.S. 156, 174 (2012). A movant who accepts a plea agreement and regrets it must show 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. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Alston, or whoever is responsible for this motion, does not claim that Alston wants to withdraw his plea and go to trial, much less how counsel erred, and still less how the documents sought could be relevant those questions. If future permutations of this motion correct Alston's formal errors, they should be rejected as substantively meritless.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written objections to my recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).