Opinion
CASE NO. 00-0636-BH-M.
March 12, 2001.
ORDER
This matter is before the Court on Petitioner's motion for relief pursuant to 28 U.S.C. § 2255. Petitioner alleges that his counsel was ineffective because he allowed Petitioner to plead guilty to a charge which Petitioner believes he is not actually guilty. Specifically, Petitioner argues he is not guilty of violating 18 U.S.C. § 924(c), and he only pled guilty to that charge because his lawyer did not inform him that he could plead "guilty" to one charge and "not guilty" to other charges. Petitioner further argues that his counsel was ineffective because he failed to inform Petitioner of the elements of the offense charged.
Petitioner also argues that this Court erroneously enhanced his sentence without giving him proper notice and his counsel was ineffective for failing to inform Petitioner that his sentence could be enhanced based on his criminal history. It is clear from the record, however, that Petitioner was sentenced at the low end of the guidelines, and he did not receive a sentence enhancement. This fact clearly distinguishes Petitioner's case from United States v. Depace, 120 F.3d 233, 235 (1997), which is the case relied upon by Petitioner in his brief. These claims are so wholly without merit, the Court will not address them further.
FINDINGS OF FACT
1) Petitioner was charged in a fifteen-count indictment with three conspiracy counts, three carjacking counts, and thee firearms charges in violation of 18 U.S.C. § 924(c). Pursuant to a written plea agreement, Petitioner pleaded guilty to four of the counts, including count fifteen (violation of 18 U.S.C. § 924(c)).2) During the plea hearing, this Court read to the Petitioner Count 15 of the indictment, and the text of 18 U.S.C. § 924(c). This Court explained the elements of the offense to Petitioner, and informed him that he could plead not guilty and require the government to prove each element, beyond a reasonable doubt, to a jury.
3) This Court questioned Petitioner regarding the effectiveness of his counsel. Petitioner indicated that his lawyer had explained to him the nature of the charges brought against him and had discussed his available defenses. Petitioner stated he was satisfied with the advice given to him and wished to proceed on that advice.
3) At the plea hearing, Petitioner advised this Court that he was pleading guilty to one of the four counts because he was actually guilty, and he was pleading guilty to the other three because he determined that it was in his best interest to do so.
CONCLUSIONS OF LAW
The Court will now address Petitioner's claims of ineffective assistance of counsel. In order to obtain relief under the familiar Strickland test, a usual basis of appeal in habeas corpus petitions, Petitioner must show: 1) "that counsel's representation fell below an objective standard of reasonableness," and 2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, (1984); Heath v. Jones, 863 F.2d 815, 821 (11th Cir. 1989) (per curiam).
The Court determines that Petitioner can not prevail on any of his claims of ineffective assistance of counsel. Based on the record, the Court simply does not believe the Petitioner's assertion that his counsel did not tell him that he could plead "guilty" to one charge and "not guilty" to other charges. This argument flies in the face of the fact that Petitioner only pleaded guilty to four counts in a fifteen count indictment. Even if Petitioner's allegations on this issue were true, the Court remedied this defect at the plea hearing. The Court specifically informed Petitioner that he could plea "not guilty" if he so chose. Accordingly, Petitioner cannot pass the second prong of the Strickland test.
Likewise, despite Petitioner's arguments to the contrary, he was clearly informed of the elements of the offense charging violation of 18 U.S.C. § 924(c). Even if Petitioner's counsel did not properly inform him, this Court did. Once again, Petitioner cannot establish that he was prejudiced by his counsel's alleged shortcomings. In fact, Petitioner states in his brief that he does not wish to change his plea. This further convinces the Court that Petitioner was not prejudiced by his counsel's alleged ineffectiveness.
CONCLUSION
After a full and proper review of the record, the Court determines that Petitioner's motion for relief pursuant to 28 U.S.C. § 2255 is due to be and is hereby DENIED.