Opinion
Case No. 2:04-CV-900 DB, Related to 2:03-CR-286 DB.
June 15, 2005
OPINION ORDER
Before the Court is petitioner Augustin Molina Urena's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Having considered the parties' briefs, record, and the relevant law, the Court issues the following Order.
BACKGROUND
On July 15, 2003, petitioner pled guilty to one count of possession with intent to distribute fifty grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1). (Doc. No. 32). The Statement by Defendant in Advance of Plea of Guilty included a waiver of appeal rights. ( Id. At ¶ 7). At sentencing on September 23, 2003, the Court granted a three point reduction for acceptance of responsibility, resulting in a total offense level of 27. (Doc. No. 40). Finding petitioner's youth and lack of criminal history as grounds for a downward departure, the Court then reduced the required minimum sentence by four months, resulting in a sentence of sixty-six (66) months. ( Id.). Petitioner filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on September 23, 2004. (Pet., p. 1).
ANALYSIS
Petitioner alleges, among other things, that his counsel rendered ineffective assistance and that his sentence violated his Sixth Amendment rights under Blakely v. Washington, 124 S. Ct. 2531 (2004). (Pet., p. 3-12). Before reaching the merits of petitioner's claims, the Court will address the government's argument that petitioner's motion should be denied pursuant to the appeals waiver in the plea agreement. The petitioner's plea agreement states that he agreed to waive his rights to appeal 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." See Statement by Def. in Advance of Plea of Guilty, at ¶ 7. (Resp., p. 3). "[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 were knowingly and voluntarily made." United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). A review of the petitioner's plea colloquy demonstrates he knowingly and voluntarily entered into the plea agreement:
The Court: Now, a plea agreement has been worked out between you and the government, and a written document has been prepared to assist you in connection with this hearing today. Have you reviewed this written document in front of you there on the lectern? Have you reviewed that with your attorney, Mr. Galvez?The Witness (Petitioner): Yes
The Court: Do you feel that you know what it says?
The Witness: Yes. . . .
The Court: The Court finds the defendant to be competent and capable of entering an informed plea. I find that his plea is voluntarily and knowingly entered, and that it is supported by an independent basis in fact containing each of the essential elements of the crime charged in the sole count of the indictment.
(Transcript of Petitioner's Change of Plea, July 15, 2003, ("Tr.") at 6:11-19, 10:21-25, 11:1). The Court finds that the waiver was expressly stated in the plea agreement, and both the plea and the waiver were knowingly and voluntarily made. Cockerham, 237 F.3d at 1183. Therefore, the waiver is valid and petitioner's claims fail.
Even if the Court found the waiver in petitioner's plea agreement invalid, petitioner's motion is without merit because he fails to establish that his counsel rendered ineffective assistance of counsel and Blakely is not applicable to the instant case. The Court will address each of petitioner's arguments in turn.
INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner's first claim alleges that he received ineffective assistance of counsel. In order to establish ineffective assistance of counsel under the two-prong test enunciated by the Supreme Court in Strickland v. Washington, the petitioner "must show that his counsel's performance was constitutionally deficient, and that this deficient performance prejudiced him." U.S. v. Harfst, 168 F.3d 398, 402 (10th Cir. 1999) (citing Strickland, 466 U.S. 668, 687 (1984)). The first prong of the test requires petitioner to demonstrate that his "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. The second prong requires that petitioner "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In determining a claim of ineffective assistance of counsel there is "a strong presumption that counsel provided effective assistance, and a section 2255 defendant has the burden of proof to overcome that presumption." U.S. v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000) (internal quotations and citation omitted).
Petitioner alleges that his counsel rendered ineffective assistance for three reasons. First, counsel failed to accurately advise him as to the weight of the evidence against him; second, counsel failed to make police reports available to him; and finally, counsel misinformed him as to the length of the prison sentence and the possibility of deportation if petitioner pled guilty. (Pet., p. 3-11). Petitioner claims that if not for ineffective counsel, he would have pled not guilty and gone to trial. (Pet., p. 5). The Court will address each of petitioner's arguments in turn.
A. Petitioner has failed to demonstrate that counsel's investigations and subsequent decisions were unreasonable under the circumstances
Petitioner's first claim is that his counsel failed to accurately inform him of the weight of the evidence against him. (Pet., 5-8). Petitioner alleges that counsel failed to make "reasonable investigations" as required by Wiggins v. Smith, 539 U.S. 510 (2003). (Pet., 7). In Wiggins, the Court stated that "counsel has a duty . . . to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Wiggins, 539 U.S. at 521 (quoting Strickland). Petitioner maintains that he never admitted his guilt to a police officer, and his attorney failed to inform him that the police report indicated that he admitted guilt. However, the petitioner could have provided counsel with this information — he did not need the police report in order to give counsel this information. It is not clear that petitioner provided counsel with enough information to demonstrate that counsel's investigations and subsequent decisions were unreasonable under the circumstances. Therefore, the Court must apply a "heavy measure of deference to counsel's judgments," and petitioner's first argument fails. Id.
B. Petitioner's claim that counsel's failed to provide him with a copy of the police report is insufficient to establish prejudice
Petitioner's second claim is somewhat related to his first claim. Specifically, petitioner asserts that he would not have pled guilty if he had been given the opportunity to review the police investigative reports, because it would have allowed him to provide critical information to counsel challenging his alleged admission of guilt. (Pet., 9). Petitioner alleges under U.S. v. Gordon, 4 F.3d 1567 (10th Cir. 1993), that he was prejudiced as a result of counsel's error in failing to provide him with the police report, thus preventing him from taking his case to trial. In Gordon, however, the court held that a defendant's "mere allegation that, but for original counsel's failure to inform him about the use of relevant conduct in sentencing, he would have insisted on going to trial, is insufficient to establish prejudice." Id. at 1571. Because petitioner has merely alleged that he would have gone to trial but for counsel's failed to provide him with a copy of the police report, he has failed to demonstrate prejudice. Furthermore, as discussed above, petitioner should have been able to provide this information to counsel regardless of whether he had access to the police investigative report.
C. Petitioner cannot establish ineffective assistance based on counsel's inaccurate prediction of petitioner's sentence
Finally, petitioner alleges that counsel rendered ineffective assistance when he misinformed him as to the length of the possible prison sentence and the possibility of deportation if petitioner pled guilty. (Pet., 10-11). However, the Court finds that counsel's predicted sentence was "a mere inaccurate prediction," which "standing alone, would not constitute ineffective assistance." Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986). The Tenth Circuit has also held that "a miscalculation or erroneous sentence estimation by defense counsel is not a constitutionally deficient performance rising to the level of ineffective assistance of counsel." Gordon, 4 F.3d at 1570.
Petitioner attempts to rely on United States v. Gonzales, 2004 U.S. App. LEXIS 10946 (10th Cir. 2004), to support his claim that counsel's prediction of a sentence of 18-24 months was a "gross mischaracterization." (Pet., 10). However, the "gross mischaracterization" in Gonzales occurred when counsel represented that defendant would only receive a sentence of nine to fifteen years, when the facts strongly supported — and defendant received — a life sentence. Id. The instant case is distinguishable from Gonzales because the difference between counsel's prediction of 18-24 months and petitioner's sentence of 66 months does not rise to the level of a "gross mischaracterization." Id.
Moreover, petitioner acknowledged that he could receive a maximum sentence of 40 years during his plea colloquy:
The Court: You're charged with the crime of possession with intent to distribute over 50 grams of a mixture or substance containing a detectable amount of methamphetamine. That crime that you're charged with carries a maximum penalty of 40 years in prison and a maximum fine of $2 million. It also requires a minimum sentence of five years. . . . Do you understand that?The Witness (Petitioner): Yes.
(Tr. at 3:20-25, 4:1, 10-11).
Petitioner also claims that counsel's failure to inform him that he may be deported following his sentence. However, the Tenth Circuit has stated that "deportation is a collateral consequence of the criminal proceeding and therefore the failure to advise does not amount to ineffective assistance of counsel." Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992). Therefore, petitioner's claim for ineffective assistance of counsel fails.
APPLICATION OF BLAKELY
Petitioner's final argument is that his sentence was in violation of the Sixth Amendment because it was enhanced by facts not submitted to a jury pursuant to Blakely v. Washington, 124 S.Ct. 2531 (2004). In Blakely, the Court held that courts may not use facts "neither admitted by [a defendant] nor found by a jury" to enhance sentences beyond prescribed maximums. Id. at 2537. The Court later applies its holding in Blakely to The Federal Sentencing Guidelines in United States v. Booker, 125 S.Ct. 738 (2005).
Contrary to petitioner's arguments, this Court's findings of fact with respect to the sentence were admitted by the petitioner. This Court's finding that the petitioner was not a minor participant is supported by the petitioner's own admission in the Plea Agreement. Petitioner admitted that he "drove another person to 1100 East 3900 South, Salt Lake City, Utah, with the understanding that [another individual] would be delivering over fifty (50) grams of a mixture or substance containing a detectable amount of methamphetamine to a buyer and collecting money for the drugs," and that petitioner "was to receive money for driving." See Statement by Def. in Advance of Plea of Guilty, at ¶ 7; (Tr. at 8:9-25, 9:1-7). Therefore, the Court did not find facts "neither admitted by [a defendant] nor found by a jury" and petitioner's Blakely argument fails.
CONCLUSION
For the foregoing reasons, petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED.IT IS SO ORDERED.