Opinion
Case Nos. 00-20180-01-CM, 02-3353-CM
June 12, 2003.
MEMORANDUM AND ORDER
Pending before the court is pro se petitioner Leobarado C. Olivas's Motion to Vacate, Set Aside, and/or Correct Sentence and Authority in Support Thereof Pursuant to 28 U.S.C. § 2255 (Doc. 38). As set forth below, the motion for appointment of counsel and petition for writ of habeas corpus are denied.
I. Background
On April 2, 2001, petitioner appeared before this court and pled guilty to Count 1 of the Indictment, Distribution of More than 450 Grams of Methamphetamines, in violation of 21 U.S.C. § 841(a)(1). On October 1, 2001, this court sentenced the petitioner to a term of 57 months of imprisonment. Petitioner is currently serving his sentence at the California City Correctional Center in California City, California.
Petitioner seeks relief on the grounds that his counsel was ineffective. Petitioner states that he learned, "right before" his sentencing and after he had pled guilty, that "he qualified for an additional two (2) point downward departure based on the fact that [petitioner] signed his deportation." Further, petitioner states that he handed his counsel a motion for a two-point reduction "based upon his status as a deportable alien," and that his counsel failed to submit the motion to the court. Petitioner contends that his right to effective assistance of counsel was compromised because his counsel failed to meet his obligation to carry out the requests of his client. Petitioner requests that the court appoint him counsel pursuant to 18 U.S.C. § 3006A(g) and correct his sentence.
II. Request for Counsel
At the outset, the court recognizes that it must construe liberally petitioner's pro se motion. E.g., United States v. Killion, 7 F.3d 927, 928 (10th Cir. 1993) (construing as § 2255 motion a pro se letter to district court claiming denial of credit for federal jail time). There is no constitutional right to counsel beyond the appeal of a criminal conviction, and appointment of counsel in a habeas proceeding generally is left to the court's discretion. Swazo v. Wyo. Dep't of Corrs. State Penitentary Warden, 23 F.3d 332, 333 (10th Cir. 1994) (citing Coleman v. Thompson, 501 U.S. 722, 756 (1991)). However, there is a right to counsel when the district court concludes that an evidentiary hearing is required. See Rule 8 of the Rules Governing Section 2244 Proceedings for the United States District Courts, 28 U.S.C. foll. § 2255 ("If an evidentiary hearing is required, the judge shall appoint counsel for a movant who qualifies for the appointment of counsel under 18 U.S.C. § 3006A(g)"); Swazo, 23 F.3d at 334-35 (holding a court must appoint counsel if the court finds that an evidentiary hearing is needed). In addition, the court must appoint an attorney for a moving party if counsel is necessary for effective discovery. Rule 6 of the Rules Governing Section 2244 Proceedings for the United States District Courts, 28 U.S.C. foll. § 2255.
Upon examination of petitioner's motion, the court finds that no evidentiary hearing or further discovery is required. Further, the court finds that petitioner expressed his arguments clearly, and that the issues presented are neither so novel nor complex as to require the appointment of counsel. Accord Nance v. Nelson, 1994 WL 174102 (D.Kan. 1994), at *1 ("The decision whether to appoint counsel in a habeas corpus action lies within the sound discretion of the habeas court unless the case is so complex that the denial of counsel would amount to the denial of due process.") (citing Brown v. United States, 623 F.2d 54 (9th Cir. 1980)). Accordingly, the court denies defendant's motion for appointment of counsel.
III. 28 U.S.C. § 2255
A. Waiver
The government argues that the court may not consider petitioner's motion on the grounds that, in the plea agreement, petitioner waived his right to contest his conviction or sentence in any post-conviction proceeding, including an action under § 2255. In United States v. Cockerham, the Tenth Circuit noted that "[i]t is well established that a defendant's waiver of the statutory right to direct appeal contained in a plea agreement is enforceable if the defendant has agreed to its terms knowingly and voluntarily." 237 F.3d 1179, 1181 (10th Cir. 2001), cert. denied, 534 U.S. 1085 (2002). The court held that the right to bring a collateral attack under § 2255, like the right of direct appeal, is generally waivable. Id. at 1182, 1187. However, the court also held that "a plea agreement waiver of post-conviction rights does not waive the right to bring a § 2255 petition based on ineffective assistance of counsel claims challenging the validity of the plea or the waiver." Id. at 1187. Collateral attacks "based on ineffective assistance of counsel claims that are characterized as falling outside that category are waivable." Id.
On its face, petitioner's motion does not appear to challenge the validity of his plea agreement or the waiver contained therein. Rather, he argues that his counsel was ineffective by failing to move for a two-point reduction in sentencing. Petitioner does, however, state that he was not informed by his counsel of "the fact that he would qualify for any additional relief," and of the allegedly available two-point reduction, until after he had pled guilty. Giving the petition a liberal construction, the court finds that petitioner has also challenged the conduct of his counsel at the time defendant negotiated his plea agreement, by failing to inform petitioner of the reduction. Petitioner's allegation also implicates the knowing and voluntary status of the waiver of post-conviction relief contained in the plea agreement, to the extent petitioner alleges he was not aware of a possibility for reduction at the time he entered into the agreement. As such, the court may not give effect to the waiver of petitioner's right to bring § 2255 claims contained in the plea agreement.
B. Ineffective Assistance of Counsel Claim
To prevail upon his claim of ineffective assistance of counsel, petitioner must show (1) that his counsel's representation fell below an objective standard of reasonableness, and (2) that his counsel's deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). "To prove prejudice, he must show that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Hernandez v. Lytle, 210 F.3d 389, 2000 WL 328125 (10th Cir. 2000), at *3 (citing Rogers v. United States, 91 F.3d 1388, 1392 (10th Cir. 1996)).
Moreover, "[i]n any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Strickland, 466 U.S. at 688. The court's review of counsel's performance must be "highly deferential," and the court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (citation omitted).
Although there is no single set of governing standards for courts to follow in evaluating the performance of counsel, the court should examine prevailing norms of practice. Id. The American Bar Association's Model Rules of Professional Conduct Rule 1.2(a) provides, in relevant part, that:
A lawyer shall abide by a client's decisions concerning the objectives of representation . . . and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
ABA Model R. Prof'l Conduct R. 1.2(a). Comment 1 to this rule addresses the rule's application to a scenario in which the lawyer and client disagree as to the means to be used to accomplish a client's objectives. However, the comment gives no definitive guideline regarding resolution of the conflict. Similarly, the Restatement (Third) of the Law Governing Lawyers (hereinafter "Restatement") provides that a client and lawyer may agree to any allocation of decisionmaking authority with respect to decisions arising during the course of the representation, and that clients may specifically instruct a lawyer. Id. § 21(1), (2); see also 1 Geoffrey C. Hazard, Jr. W. William Hodes, The Law of Lawyering § 5.5 at 5-15 (3d ed. 2003 Supp.). Subject to such agreements or instructions, and in consultation with the client, "a lawyer may take any lawful measure within the scope of representation that is reasonably calculated to advance a client's objectives as defined by the client." Restatement § 21(3). Notwithstanding these limitations, however, a lawyer retains authority "(1) to refuse to perform, counsel, or assist future or ongoing acts in the representation that the lawyer reasonably believes to be unlawful," and "(2) to make decisions or take actions in the representation that the lawyer reasonably believes to be required by law or an order of a tribunal." Id. § 22(3).
The Comment states, in part, that:
Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer.
ABA Model R. Prof'l Conduct R. 1.2 cmt. 1.
Applying these standards, the court finds that counsel's performance was objectively reasonable. As set forth below, the argument proposed by petitioner likely would not have been accepted by the court. Moreover, even if counsel's failure to present the argument was unreasonable, petitioner's defense would not have been prejudiced because the court would not have reduced the sentence.
In United States v. Gomez-Sotelo, the Tenth Circuit stated that "under [United States v. Soto, 918 F.2d 882 (10th Cir. 1990)], federal courts may not depart downward based on possible deportation because such departure interferes with the deportation decisions of the Attorney General." 18 Fed. Appx. 690, 2001 WL 991984, (10th Cir. 2001), at *2. The Gomez-Sotelo court noted that Soto's holding was limited by the Supreme Court's decision in United States v. Koon that any factor may be considered as a potential basis for departure unless specifically prohibited by the United States Sentencing Guidelines. Id. (citing Koon, 518 U.S. 81, 100 (1996)). After Koon, a district court may consider possible deportation as a basis for downward departure, because it is not prohibited in the Guidelines. Id. "However, possible deportation may not be accepted as such a basis unless sanctioned by the Attorney General in the specific case." Id. Here, there is no showing that the Attorney General authorized, or would have authorized, the court to consider petitioner's deportation as a basis for downward departure.
The court finds that petitioner has not demonstrated that he received ineffective assistance of counsel. The petition for writ of habeas corpus is denied.
III. Order
IT IS THEREFORE ORDERED THAT petitioner Leobarado C. Olivas's Motion to Vacate, Set Aside, and/or Correct Sentence and Authority in Support Thereof Pursuant to 28 U.S.C. § 2255 (Doc. 38) is denied.