Opinion
CR No. 99-184-KI
February 12, 2001
Thomas Lininger Special Assistant U.S. Attorney Eugene, Oregon Attorney for Plaintiff.
Emeliano Jose-Garcia #63513-065, J-1 Sheridan, Oregon Pro se.
OPINION and ORDER
Before the court is the motion, under 28 U.S.C. § 2255, to vacate, set aside, or correct sentence (#79) by defendant Emeliano Jose-Garcia. For the reasons set forth below, I deny the motion.
PROCEDURAL BACKGROUND
The following facts are taken from the presentence report ("PSR"), dated August 15, 2000, to which neither party objected.
An undercover federal agent purchased drugs and false identification documents from Loborio Waldo-Gonzalez in Woodburn, Oregon, during the spring of 1999. Through further investigation and based on statements by Waldo-Gonzalez, the police determined that his source for the false documents was Jose-Garcia. PSR, ¶¶ 6-13.
On April 14, 1999, police conducted a search of two apartments located at 130 Grant Street in Woodburn. Upon entering one of the apartments, the police saw Jose-Garcia in the process of making a forged/false document. Officers seized a typewriter, 791 blank resident alien cards, 94 blank Social Security cards, various blank Mexican documents, Mexican birth certificates, and other miscellaneous items used in the manufacture of fraudulent documents. PSR, ¶ 14. Jose-Garcia was arrested.
Jose-Garcia admitted to the officers that he was the renter of both apartments and he gave permission for the officers to search the storage areas. During the search of the storage areas, the officers seized 1,844 blank alien registration cards, 1,262 blank Social Security cards, miscellaneous blank documents, and other items used in the manufacture of fraudulent documents. A total of 219.1 grams of marijuana, 77.6 actual grams of methamphetamine, and 62.3 grams of cocaine were seized from the storage areas. Jose-Garcia denied having any knowledge of the drugs seized from the storage areas, but he admitted the false documents were his. PSR, ¶¶ 15-16.
According to INS officials, Jose-Garcia's operation had more fraudulent cards than any other operation previously seized in Oregon. Jose-Garcia's operation was also the first in Oregon that appeared to be creating false documents using blank paper stock, instead of templates that only require the addition of names and photos. PSR, ¶ 17.
On April 21, 1999, the federal grand jury returned an indictment that included two counts against Jose-Garcia. One of the counts charged that Jose-Garcia possessed, with the intent to transfer, more than five false identification documents appearing to be issued by the United States, in violation of 18 U.S.C. § 1028(a)(3). The second count against Jose-Garcia charged that he possessed methamphetamine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Jose-Garcia was originally represented by attorney Steve P. Chez. However, the defendant became dissatisfied with Mr. Chez as his attorney and, on October 4, 1999, I allowed Mr. Chez to withdraw from representing Jose-Garcia. Attorney Larry R. Roloff was then appointed to represent Jose-Garcia.
On June 20, 2000, Jose-Garcia entered a guilty plea pursuant to a plea agreement dated June 13, 2000. Under the plea agreement, the United States agreed to dismiss the drug count and Jose-Garcia was required only to plead guilty to the offense involving false identification documents. At the sentencing hearing on September 1, 2000, Jose-Garcia was sentenced to 46 months. The defense raised no objections to the information contained in the PSR or to the recommendation by the United States Probation Office that Jose-Garcia be sentenced to the high-end of the applicable guideline range (37 to 46 months) because of the magnitude of the fraudulent activity involved in the case.
Jose-Garcia asserts four grounds in support of the motion before the court: (1) he entered into his guilty plea involuntarily; (2) he received ineffective assistance of counsel; (3) the prosecution improperly sought a four-level enhancement for his role in the offense; and (4) his attorney did not communicate with him adequately.
LEGAL STANDARDS
28 U.S.C. § 2255 provides, in part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Under § 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255) (emphasis in the original). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. Mejia-Mesa, 153 F.3d 925, 931 (9th Cir. 1998). Mere conclusory statements in a § 2255 motion are insufficient to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981).
DISCUSSION
There is no need for an evidentiary hearing to decide this motion. Jose-Garcia makes only conclusory allegations and, as discussed below, the evidence in the record belies his arguments.
I. Ineffective Assistance of Counsel
Jose-Garcia asserts the following in support of his claim that he received ineffective assistance of counsel:
The movant was not represented by counsel who was his true advocate. Counsel advised the movant to plead guilty to an open ended plea agreement under which the sentence could be increased at the whim of the prosecutor and the court. The attorney did not negotiate effectively on behalf of the movant, nor did he properly investigate the case on behalf of the movant.
Jose-Garcia also makes the following assertions:
Failure of counsel for the defendant to communicate with the movant as to his understanding of the crime and the defenses thereof. The attorney's actions were deficient by not investigating the case on behalf of the defendant and not explaining to him the sentencing guidelines and the application of the enhancements thereof.
To prevail on a claim of ineffective assistance of counsel, petitioner must show both (1) that the attorney's performance fell below an objective standard of reasonableness; and (2) that the performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 688 (1984). The question is whether there is a reasonable probability that, absent the errors, the result of the proceeding would have been different. Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998), cert. enied, 119 S.Ct. 1777 (1999). A reasonable probability is less than a preponderance of the evidence and is a probability sufficient to undermine confidence in the outcome. Kyles v. Whitley, 514 U.S. 419, 434-35 (1995); Strickland, 466 U.S. at 693, 695.
There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, or what "might be considered sound trial strategy." Strickland, 466 U.S. at 689. Reasonableness is judged as of the time of counsel's conduct, not in hindsight. Id. at 689-90. The petitioner must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690.
Jose-Garcia's arguments are belied by the terms of the plea agreement and plea petition. For instance, the plea agreement was not "open ended . . . under which the sentence could be increased at the whim of the prosecutor and the court." Paragraph 7 of the plea agreement makes clear that, if the applicable guideline range included a possible sentence of 46 months, the parties would make a joint recommendation of such a sentence. The government was not free to advocate a higher sentence. Jose-Garcia also acknowledged in paragraph 13 of the plea agreement that his sentence would be determined by a judge who is not obligated to follow the parties' recommendation.
Likewise, the plea petition is evidence that there were not deficiencies in communication between Jose-Garcia and his attorney:
My attorney and I have discussed my case fully. I have received a copy of the Indictment or Information. I have read the Indictment or Information, or it has been read to me, and I have discussed it with my attorney. My attorney has counseled and advised me concerning the nature of each charge, any lesser-included offense(s), and the possible defenses that I might have in this case.
Plea Petition, ¶ 3.
The remainder of Jose-Garcia's ineffective assistance argument is based on the premise that his attorney negotiated a bad deal for him. However, Jose-Garcia agreed to the terms of the plea agreement and signed it directly below a paragraph stating that he voluntarily agreed to its terms, that it was translated for him as necessary, and that he reviewed every part of the agreement with his attorney. Moreover, the agreement contained concessions by the government that were favorable to Jose-Garcia (i.e., dismissal of Count 4 of the Indictment (the drug count), an agreement not to seek any upward departures, and an agreement to recommend a three-level reduction in the offense level for acceptance of responsibility). It would be pure speculation to conclude that Jose-Garcia's attorney could have obtained a more favorable plea agreement if he advised Jose-Garcia to reject the government's second amended plea offer or if he had performed some additional unspecified investigation.
II. Other Grounds
Before addressing the other grounds for relief asserted by Jose-Garcia, it is important to address paragraph 11 of the plea agreement, which states:
The defendant knowingly and voluntarily waives his right to file an appeal in this case. Further, the defendant knowingly and voluntary waives his right to file any petition for post-conviction relief, except concerning ineffective assistance of counsel or retroactive application of the sentencing guidelines.
Based on this provision, Jose-Garcia has waived his right to challenge the four-level enhancement that he received, pursuant to U.S.S.G. § 3B1.1(a), for being an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. Regardless, Jose-Garcia explicitly consented to that enhancement in his plea agreement and to a sentence of 46 months (which was premised on an offense level that included the four-level enhancement).
Finally, Jose-Garcia argues that his guilty plea was not knowing or voluntary. Such an argument is again belied by the terms of the plea petition and plea agreement and, equally important, by the dialogue between Jose-Garcia and me at the proceeding in which I accepted his guilty plea and found it to be knowing and voluntary.
CONCLUSION
The motion, under 28 U.S.C. § 2255, to vacate, set aside, or correct sentence (#79) by defendant Emeliano Jose-Garcia is DENIED.
SO ORDERED.