Opinion
Criminal No. 01-00250-03, Civil Action No. 03-5839
February 3, 2004
MEMORANDUM AND ORDER
I. INTRODUCTION
Presently before the Court is Claudia Gomez-Martinez's ("Movant") pro se Motion To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody, filed pursuant to 28 U.S.C. § 2255. On July 19, 2001, Movant was convicted by a jury of conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846, and of possession with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1). This Court sentenced Movant on December 19, 2001. We imposed a 150 month term of imprisonment, five years of supervised release, and ordered a special assessment of $200.00. The Third Circuit Court of Appeals affirmed this Court's judgment on October 22, 2002. United States v. Gomez-Martinez, No. 01-4522, 2002 WL 31160111 (3d Cir. Oct. 22, 2002). Movant thereafter filed a petition for certiorari. The Supreme Court rejected the petition on March 24, 2003.
Movant's present habeas motion challenges the effectiveness of her court-appointed attorney at trial and sentencing, Benjamin B. Cooper, Esq. Specifically, Movant contends that her attorney failed to advise her of her eligibility for a sentence reduction under the "safety-valve" provision of the Sentencing Guidelines, as set forth in U.S.S.G. §§ 2D1.1(b)(6) and 5C1.2, and in 18 U.S.C. § 3553(f). Had she been so advised, she claims, she would have exercised that option and received a reduction in sentence.
The safety valve provision enables defendants who meet specified qualifications to avoid mandatory minimum sentences in certain drug cases. The statutes that Movant has been found guilty of violating, 21 U.S.C. § 841 and 846, carry mandatory minimum sentences of ten years. 18 U.S.C. § 3553(f) provides relief from the ten year mandatory minimum so long as the following five factors are satisfied:
(1) the defendant does not have more than one criminal history point . . .;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon . . . in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, . . .; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.18 U.S.C. § 3553(f). These factors are reiterated in U.S.S.G. § 5C1.2, and § 2D1.1(b)(6) mandates a two-level downward adjustment for defendants who meet the requisite criteria of § 5C1.2.
Had she provided a complete and truthful proffer to the government, the government concedes that Movant would have met all of the safety-valve qualifications, and thus would have obtained a two-level reduction in her sentence. Movant claims in her pro se § 2255 Motion, filed on November 24, 2003 that, had Mr. Cooper advised her of this option, she would have furnished a complete and truthful proffer, and accordingly would have received the reduction. The government's response, filed on December 18, 2003, disputes Movant's factual assertion that Mr. Cooper failed to inform her of the safety valve provision. To resolve this factual dispute, we scheduled a hearing to give Movant an opportunity to prove that her former counsel failed to apprise her of the availability of the safety valve. This hearing was held on January 26, 2004 in Easton, Pennsylvania. Movant and her former counsel, Mr. Cooper, were present and offered testimony. IQ addition, Movant's present lawyer, Mr. Mark Refowich, Esq., and the AUSA were present as well.
II. JURISDICTION
We have jurisdiction to adjudicate motions brought pursuant to 28 U.S.C. § 2255. 28 U.S.C. § 2241.
III. STANDARD OF REVIEW
A prisoner in federal custody may move to vacate, set aside, or correct his sentence upon the ground that the sentence was imposed in violation of the laws or Constitution of the United States, that the court was without jurisdiction to impose such a sentence, that the sentence was in excess of the maximum allowed by law or is otherwise subject to collateral attack. 28 U.S.C. § 2255. As a collateral challenge, a motion pursuant to 28 U.S.C. § 2255 is reviewed much less favorably than would be a direct appeal of the sentence. United States v. Frady, 456 U.S. 152, 164-67, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Indeed, absent a violation of constitutional rights, relief under § 2255 is available only when "the claimed error of law was a `fundamental defect which inherently results in a complete miscarriage of justice,' and `presents exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'" Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (quotingHill v. United States, 368 U.S. 424, 428, 82 S.Ct 468 (1962)); United States v. Woods, 986 F.2d 669, 676 (3d Cir. 1992).
When a federal prisoner did not present her claims in the trial and appellate courts, she must clear a significantly higher hurdle on collateral attack than on direct appeal and show cause for her procedural default and actual prejudice resulting therefrom. United States v. Frady, 456 U.S. at 166-68, 102 S.Ct. 1584, 71 L.Ed, 2d 816. Frady applies to sentencing proceedings, United States v. Essig, 10 F.3d 968, 978 (3d Cir. 1993), but does not apply to claims of ineffective assistance of counsel. United States v. DeRewal, 10 F.3d 100, 103 (3d Cir. 1993),cert. denied, 511 U.S. 1033, 114 S.Ct. 1544, 128 L.Ed.2d 196 (1994).
IV. DISCUSSION
A. Defendant's Trial Counsel Was Not Constitutionally Ineffective
As noted above, we held a hearing on January 26, 2004 for the purpose of allowing Movant to present her habeas corpus claim regarding the alleged ineffectiveness of her former counsel, Mr. Cooper. Having heard testimony from Movant and Mr. Cooper, it is clear to us that Movant's assertion is utterly without merit.
1. Ineffective Assistance of Counsel Standard
The right to assistance of counsel is guaranteed by the Sixth Amendment of the United States Constitution. This right has been deemed fundamental by the Supreme Court; it cannot be denied to a defendant absent intentional and actual waiver. Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The Supreme Court has set forth a two-prong test to establish a claim of ineffectiveness of counsel.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct 2052, 80 L.Ed.2d 674 (1984). A defendant must show both that: (1) his counsel's conduct was deficient and "fell outside the wide range of professionally competent assistance" and (2) the defendant was prejudiced as a result of that deficient conduct. Id.: United States v. DeRewal, 10 F.3d 100, 104 (3d Cir. 1993). cert. denied, 511 U.S. 1033, 114 S.Ct. 1544, 128 L.Ed, 2d 196 (1994).
To prove deficiency, a defendant must show that his lawyer's conduct fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. 2052, 80 L.Ed.2d 674. In evaluating such a claim, we "must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. We may not use the benefit of hindsight to second-guess tactical decisions made by an attorney unless they are unreasonable. See id. at 690, 104 S.Ct. 2052, 80 L.Ed.2d 674; Diggs v. Owens, 833 F.2d 439, 444-45 (3d Cir. 1987), cert. denied, 485 U.S. 979, 108 S.Ct. 1277, 99 L.Ed.2d 488 (1988) ("An attorney is presumed to possess skill and knowledge in sufficient degree to preserve the reliability of the adversarial process and afford his client the benefit of a fair trial. Consequently, judicial scrutiny of an attorney's competence is highly deferential").
To satisfy the prejudice prong, a defendant must show that there is a reasonable probability that, had counsel's performance not been deficient, there would have been a different outcome. Strickland, 466 U.S. at 690, 104 S.Ct. 2052, 80 L.Ed.2d 674. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052, 80 L.Ed, 2d 674. Failure to make the requisite showing of either deficient performance or prejudice defeats a claim for ineffective assistance of counsel. Id. at 700, 104 S.Ct. 2052, 80 L.Ed.2d 674.
2. Application
As described below, it is apparent that Mr. Cooper fully informed and explained the safety-valve feature to Movant both before Movant's trial, and before her sentencing proceeding. Consequently, we find that Mr. Cooper rendered effective assistance of counsel to Movant.
Movant's testimony was not believable and she did not appear to be a credible witness. Mr. Cooper represented Movant from the time of her arrest through to an appeal of our judgment to the Third Circuit. Movant testified that she and her attorney fully understood one another through the use of an interpreter. She freely admitted that she and her attorney met in preparation for trial, and met approximately two or three times between her conviction and sentencing proceeding. Movant claimed, however, that Mr. Cooper never discussed with her possibilities for obtaining a lighter sentence or relief from the mandatory minimum, including the safety valve feature. Yet Movant also testified that she and Mr. Cooper spoke about the sentencing guidelines, and specifically discussed the impact of the guidelines on her sentencing range, including the minimum and maximum sentences that she could receive.
In direct contrast to Movant's testimony, Mr. Cooper's testimony was entirely credible and completely comports with Movant's admissions. Mr. Cooper confirmed that he and Movant understood one another through the use of an interpreter, and that they met approximately ten or eleven times before trial, and three times after trial prior to sentencing. At these meetings, Mr. Cooper discussed with his client the gamut of options available to her, including whether to plead guilty and whether to cooperate, In addition, Mr. Cooper explained the sentencing ramifications of each of these options, and notified Movant of the safety-valve feature. Indeed, Mr. Cooper determined in the pre-trial phase that Movant was eligible for the safety-valve provision so long as she agreed to provide truthful information to the government. In particular, Mr. Cooper explained to Movant the requirements and benefits of the safety valve provision in the context of an extended conversation regarding whether she should plead guilty. Movant elected to proceed to trial. As Mr. Cooper ascertained that Movant would be eligible for the safety-valve sentencing reduction whether she pled guilty or was convicted after trial, so long as she agreed to supply truthful information to the government, he advised her of the safety-valve alternative post-trial as well. Mr. Cooper's testimony sheds light on Movant's motivation for refusing to relay the requisite information to the government. Movant maintained her innocence to counsel throughout the course of their attorney-client relationship, and indicated to Mr. Cooper that she was interested in appealing her conviction on the basis of sufficiency of the evidence. Mr. Cooper testified that he discussed with his client the dilemma posed by appealing on that issue and proffering to the government-namely, that it would be difficult to win an appeal premised upon lack of sufficiency of evidence if Movant admitted the extent of her involvement and her guilt to the government in a proffer session. As a result, Movant purposefully decided not to exercise her option under the safety valve and instead chose to appeal her sentence. Mr. Cooper's testimony makes far more sense in view of the amount of time Movant admits that she and Mr. Cooper spent together, and in light of the topics that she admits they discussed.
Our finding that Mr. Cooper fully advised Movant of her opportunity to qualify for the benefits of 18 U.S.C. § 3553(f) and U.S.S.G. § 2D1.1(b)(6) obviates the need to discuss whether a failure to do so would constitute ineffective assistance. We commend Mr. Cooper's representation of Movant, and find that he advised her of the safety-valve option both before and after trial.
V. CONCLUSION
For the foregoing reasons, Claudia M. Gomez-Martinez's pro se Motion To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody, filed pursuant to 28 U.S.C. § 2255 must be denied. An appropriate Order follows.
ORDER
AND NOW, this 3rd day of February, 2004, upon consideration of Movant's pro se Motion To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody, filed under 28 U.S.C. § 2255 on November 24, 2003, the Government's Opposition To Defendant's Motion Under 28 U.S.C. § 2255, filed on December 18, 2003, Movant's Response To The Government's Objections To Petitioner's Title 28 U.S.C. § 2255 Petition, filed on January 12, 2004, and the testimony and evidence adduced at the Hearing on January 26, 2004, it is hereby ORDERED consistent with the foregoing memorandum as follows:
1. Movant's Motion To Vacate, Set Aside Or Correct Sentence By A Person In Federal Custody, filed on November 24, 2003, is DENIED and DISMISSED.
2. A Certificate of Appealability is DENIED for the reasons stated in the foregoing memorandum.
3. We find that there has not been a substantial showing of the denial of a constitutional right.
4. This case is CLOSED.