Opinion
CRIMINAL ACTION NO. 03-552-01, CIVIL ACTION NO. 07-0296.
September 24, 2007
Memorandum and Order
Defendant Jose Antonio Rotger Perez filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("§ 2255 motion") on January 23, 2007, alleging, among other things, ineffective assistance of trial counsel. The government filed a motion to dismiss, arguing that Perez's waiver of his right to collaterally attack the judgment bars the petition. After the issue had been briefed by the parties, the Third Circuit addressed the issue of collateral-attack waivers as applied to ineffective assistance of counsel claims raised for the first time in a collateral review proceeding under 28 U.S.C. § 2255. See United States v. Shedrick, 493 F.3d 292 (3d Cir. 2007). The Third Circuit in Shedrick strongly suggested that colorable ineffective assistance of counsel claims are, as a rule, sufficient to overcome a defendant's waiver of collateral attack. Because the defendant has a colorable ineffective assistance of counsel claim, I will deny the government's motion to dismiss and direct the government to substantively respond to his § 2255 motion.
I. Background and Procedural History
II. Discussion
18 U.S.C. § 195118 U.S.C. § 924See United States v. Perez 2004 WL 354312Id. United States v. Perez 2004 WL 354312United States v. Perez 115 Fed. Appx. 586588Booker v. Washington Perez v. United States544 U.S. 916 Booker. United States v. Perez152 Fed. Appx. 9899 28 U.S.C. § 2255Virgin Islands v. Forte865 F.2d 5962Id.
If a defendant, as part of a plea bargain, waives his right to appeal or collaterally attack a judgment, that waiver will be enforced absent a miscarriage of justice. "[W]aivers of appeals are generally permissible if entered into knowingly and voluntarily, unless they work a miscarriage of justice." Khattak v. United States, 273 F.3d 557, 558 (3d Cir. 2001); see also id. at 563 (quoting United States v. Teeter, 257 F.3d 14, 26 (1st Cir. 2001)) (setting out a five-factor test). The miscarriage-of-justice standard applies not only to waivers of appeals, but also to waivers of collateral attacks. See Shedrick, 493 F.3d at 297, 298 n. 6; United States v. Robinson, No. 04-2372, 2007 WL 2253423, at *2 (3d Cir. Aug. 7, 2007); see also Gonzalez v. United States, No. 07-1797, 2007 WL 2407288, at *2 (E.D. Pa. Aug. 20, 2007) ("In the recent case of United States v. Shedrick, the court of appeals implicitly held that collateral-waiver provisions are generally enforceable unless their enforcement would result in a miscarriage of justice.").
The Third Circuit implied that collateral-attack waivers must be invalidated as to potentially viable ineffective assistance of counsel claims: "Enforcing a collateral-attack waiver where constitutionally deficient lawyering prevented [the defendant] from understanding his plea . . . would result in a miscarriage of justice." Shedrick, 493 F.3d at 298.
A defendant may not, however, circumvent a collateral-attack waiver simply by asserting ineffective assistance of counsel. A waiver will be enforced if the claim is not potentially viable. Compare id. at 301 (invalidating a collateral-attack waiver as to a failure-to-timely-appeal claim, where the record "clearly reflects" counsel's deficiency) with id. at 300 (enforcing a collateral-attack waiver as to a failure-to-explain-the-plea-agreement claim because "it is inconceivable" that the defendant was unaware of the maximum sentence) and United States v. Robinson, 2007 WL 2253423, at *2 (upholding a collateral-attack waiver as to a failure-to-explain-the-plea-agreement claim because the record reflected both counsel's explanation of the agreement to the defendant and a thorough plea colloquy).
The only other district court to have applied the recently enunciated Shedrick rule apparently reached the same conclusion. "Essentially then, the [Third Circuit] held that a collateral-attack waiver should not be enforced if a habeas petition has alleged potentially viable ineffective-assistance-of-counsel claims, since refusing to consider and to remedy such claims, if true, would result in a miscarriage of justice." Gonzalez, 2007 WL 2407288, at *3.
To establish ineffective assistance of counsel, a defendant must show that (1) his attorney's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficiency, a defendant must show that counsel's performance "fell below an objective standard of reasonableness under prevailing professional norms." Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999) (citing Strickland, 466 U.S. at 688). To prove prejudice, a defendant must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding," id. at 693; rather "the defendant must 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.
Counsel is presumed to have acted within the range of "reasonable professional assistance"; the defendant bears the burden of "overcoming the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). That presumption, however, rests on counsel's fulfillment of her duty "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 689, 691. "Only choices made after a reasonable investigation of the factual scenario are entitled to a presumption of validity." Rolan v. Vaughn, 445 F.3d 671, 682 (3d Cir. 2006).
Taking the defendant's allegations as true, trial counsel's conduct fell below an objective standard of reasonableness. Defendant alleges as follows: Trial counsel failed to investigate the defendant's claim that he used a toy gun in four of the five robberies, and he failed to contact two of the defendant's friends, who not only could have testified that the gun used was a toy, but also could have produced the gun. (Pet'r's Mot. 14.) Trial counsel falsely told the defendant he had attempted to speak with both potential witnesses, telling the defendant that one, Darius Jones, said he had not seen or been given any type of gun, and the other, Maria Sanchez, refused to speak with him. (Aff. of Antonio Perez, Ex. 1 to Pet'r's Mot. 5.) Defendant further alleges he was actually prejudiced by his attorney's failure to investigate: "Jones' and Sanchez's eyewitness [evidence] and the evidence of the toy gun, if true, exonerates the Petitioner and, if timely presented to the Court during the Petitioner's criminal proceedings, would have produced a different outcome, with respect to the multiple firearm convictions. . . ." (Def.'s Mot. 12.) Defendant has thus asserted a colorable claim of ineffective assistance of counsel.
Defendant's response to the government's motion to dismiss argues that defendant's trial counsel was ineffective with respect to negotiating the plea agreement (Def.'s Reply 4.), while his § 2255 petition focuses on counsel's failure to investigate. For a court to overlook a waiver of collateral attack, claims of ineffective assistance need not relate to the effectiveness of counsel with respect to negotiating the waiver. For example, the Third Circuit, in Shedrick, permitted the defendant's § 2255 claim alleging ineffectiveness for failing to timely file an appeal to go forward. The court declined to exercise its jurisdiction with respect to the defendant's claim that counsel failed to advise him during plea negotiations of the possibility of an enhanced sentence or an upward departure, for the record of the plea colloquy and written agreement made it "inconceivable" that the defendant was unaware of the maximum sentence. 493 F.3d at 300-02.
III. Conclusion
As the defendant has set forth a colorable ineffective assistance of counsel claim in his § 2255 motion, the Third Circuit's Shedrick rule requires this court to allow the defendant's claim to move forward, lest a miscarriage of justice result. Therefore, the government's motion to dismiss will be denied, and the government is ordered to substantively respond to defendant's § 2255 motion. An appropriate order follows.
Order
And now, this ______ day of September 2007, upon careful consideration of the government's motion to dismiss defendant Perez's motion to vacate, set aside, or correct his sentence filed pursuant to 28 U.S.C. § 2255, and defendant's response thereto, IT IS HEREBY ORDERED that the government's motion to dismiss is DENIED.
IT IS FURTHER ORDERED that the government will substantively respond to the defendant's § 2255 motion within 60 days.