Opinion
Criminal Action No. 98-014.
January 8, 2001
The Defendant, Erik Francisco Samayoa-Gonzales, has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The Court, having reviewed the Court record, trial transcript, sentencing transcript, motion of the Defendant, response by the Government, law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
A. Procedural History
The Defendant was indicted by the Federal Grand Jury on January 23, 1998, for illegal reentry following deportation in violation of 8 U.S.C. § 1326. The Defendant pled guilty as charged without a plea agreement on March 12, 1998.
The Presentence Investigation Report (PSR) recommended a base offense level of eight (8) with a sixteen (16) level increase based upon his previous deportation having occurred after a juvenile conviction for second degree battery thereby constituting a conviction for an aggravated felony, with a three (3) level reduction for acceptance of responsibility, resulting in a total offense level of twenty-one (21). Additionally, the PSR assigned a criminal history category of IV.
Represented by Alfred Hansen, the Defendant initially submitted objections to the PSR. On June 24, 1998, he withdrew the objections and instead moved for downward departure. This Court indicated that it was not prepared to rule on the issue and requested that both parties file a sentencing memorandum addressing two issues. The two issue were (1) whether the sixteen level enhancement under U.S.S.G. § 2L1.2 was appropriate, and (2) whether the Defendant's criminal history category overstated the seriousness of the Defendant's criminal history. Briefs were due on July 13, 1998, and the sentencing was continued to July 15, 1998.
The Defendant submitted a sentencing memorandum stating:
The defendant would respectfully suggest that there are no mitigating statutes or case law in his favor in this matter. Also, addressing the court's question as to the [sic] whether the defendant's youth, and his conviction of an aggravated felony as a juvenile, are mitigating factors, the defendant respectfully concedes that there is no case law or other statute law that would militate against the imposition of such a sentence as recommended in the Federal Sentencing Guidelines.Defendant's Pre-Sentencing Brief pp. 5-6. The Defendant discussed the policy effect of imposing the recommended sentence and requested a downward departure. The government responded in a Memorandum in Opposition to Motion for Downward Departure.
Sentencing occurred on July 15, 1998. The Court accepted the guideline calculations of the PSR and denied the Defendant's motion for downward departure. The Defendant was sentenced to 57 months in prison, three years of supervised release and a $100.00 special assessment.
The Defendant's new attorney, John Reed, enrolled and filed a Motion to Correct Sentence and for Expedited Hearing alleging that it was clear error for this Court to conclude that the Defendant's juvenile adjudication constituted an aggravated felony which thereby enhanced his sentence. The government responded in an Opposition to the Defendant's Motion to Correct Sentence alleging that the motion was an improper request pursuant to Rule 35(c) of the Federal Rules of Criminal Procedure. A hearing on the Defendant's motion occurred on July 24, 1998, at which time, this Court denied Defendant's motion. Thereafter, the Defendant filed a timely notice of appeal. The Fifth Circuit Court of Appeals affirmed the judgment of the District Court on August 25, 1999, and the mandate was issued on September 29, 1999. The current Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 was filed on September 6, 2000.
B. Statement of Facts
The Defendant is a citizen of Guatemala. On January 27, 1994, he was found guilty of four counts of auto theft and sentenced on April 28, 1994 to probation until age eighteen (18) by the Jefferson Parish Juvenile Court. On May 16, 1994, he was charged with possession of stolen property, resisting an officer, and flight from an officer. On May 25, 1994, he was sentenced to four (4) years probation by the Orleans Parish Juvenile Court.
On November 3, 1994, he was arrested for theft and second degree battery. He and a companion attacked two individuals with their fists and a broken beer bottle. One victim was rendered unconscious and required 87 stitches. The Defendant plead guilty to second degree battery. He was sentenced to two (2) years incarceration on February 9, 1995. As a result of this conviction, his probation was revoked in Orleans and Jefferson Parishes.
On June 16, 1996, the Defendant was released on parole. The PSR indicates that he was brought back for violating his parole on several occasions. The battery conviction is the foundation for the sentence enhancement which is at issue in the present motion.
II. ARGUMENTS OF THE RESPECTIVE PARTIES:
The Defendant has alleged ineffective assistance of counsel in his § 2255 Motion to Vacate, Set Aside, or Correct Sentence. The Defendant contends that at trial, Hansen, his former counsel, failed to (1) present, argue, and preserve, by objection or otherwise, the contention that the defendant's juvenile adjudication for delinquency did not qualify as a conviction for commission of an aggravated felony, and (2) fully consider the possible sentencing consequences of a guilty plea and advise the defendant thereto.
The Government urges this Court to deny the petition without an evidentiary hearing for the following reasons. First, it is asserted that the Defendant failed to meet the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) to establish ineffective assistance of counsel. The Government asserts that the Defendant has not shown deficiency of performance on the part of his attorney nor prejudice to his case and further failed to demonstrate a reasonable probability that but for his counsel's unprofessional errors, the result of the proceeding would have been different. Finally, the Government submits that there is no need for an evidentiary hearing in this matter.
III. LAW AND ANALYSIS:
Evidentiary Hearing
Based upon a review of the entire record, it is the opinion of this Court that the motion filed by petitioner can be addressed without an evidentiary hearing. An evidentiary hearing is not required on a motion to set aside a judgment of conviction and sentence if it appears conclusively from the record that the petitioner is not entitled to relief. Randle v. Scott, 43 F.3d 221, 226 (5th Cir. 1995); United States v. Plewniak, 947 F.2d 1284, 1290 (5th Cir. 1991). Because the written submissions of the parties and the district court's existing record provide sufficient information, this Court will dispose of the instant motion without a hearing. Franklin v. United States, 589 F.2d 192, 193 (5th Cir. 1979). This is especially appropriate in light of the fact that the judge whom this motion is before is the same judge who heard all arguments, reviewed all motions, and witnessed counsel Hansen's performance.
Ineffective Assistance of Counsel
In Strickland v. Washington, the United States Supreme Court established a two prong test for evaluating claims of ineffective assistance of counsel: a convicted defendant seeking relief must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. If a court finds that petitioner has made an insufficient showing as to either one of the two prongs of inquiry, i.e., deficient performance or actual prejudice, it may dispose of the claim without addressing the other prong. Strickland, 466 U.S. at 697; 104 S.Ct. at 2069.
Under the deficient performance prong of the Strickland test, "it is necessary to `judge counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.'" Lockhart v. Fretwell, 506 U.S. at 364, 371, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). "An attorney's performance, which enjoys a strong presumption of adequacy, is deficient if it is objectively unreasonable." U.S. v. Walker, 68 F.3d 931, 934 (5th Cir. 1995), (quoting U.S. v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995), cert. denied, 516 U.S. 1165, 116 S.Ct. 1056, 134 L.Ed.2d 201 (1996). The petitioner must prove that the conduct of trial counsel fell below the constitutional minimum guaranteed by the Sixth Amendment. U.S. v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994) citing Strickland, 466 U.S. at 686, 104 S.Ct. at 2063. Analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. Strickland, 466 U.S. at 688-89, 104 S.Ct. At 2065. The petitioner "carries the burden of proof . . . and must overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance." Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir.) (citations omitted), cert. denied, 479 U.S. 1021, 107 S.Ct. 678, 93 L.Ed.2d 728 (1985); Hayes v. Maggio, 699 F.2d 198, 201-02 (5th Cir. 1983).
To prove prejudice under the Strickland standard, petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. TheStrickland court defined a reasonable probability as "a probability sufficient to undermine confidence in the outcome." Id. In making a determination as to whether prejudice occurred, courts must review the record to determine the "relative role that the alleged trial errors played in the total context of [the] trial." Crockett, 796 F.2d at 793.
In the context of a guilty plea, the petitioner must show a reasonable probability that, if he had competent counsel, he would not have pled guilty. Hill v. Lockhart 474 U.S. 52, 59, 106 S.Ct. 366, 370 (1985). "[E]ffective assistance of counsel on the entry of a guilty plea requires that counsel ascertain whether the pleas are entered into voluntarily and knowingly." Randle v. Scott, 43 F.3d 221, 225 (5th Cir. 1995) (quotingUnited States v. Diaz 733 F.2d 371, 376 (5th Cir. 1984)). "A guilty plea is not voluntary unless the defendant has `real notice of the true nature of the charge against him.'" Theroit v. Whitley, 18 F.3d 311, 314 (5th Cir. 1994), (quoting Henderson v. Morgan, 426 U.S. 637, 645 96 S.Ct. 2253, 2257 (1976)).
In this case, the Court finds that the petitioner has failed to satisfy either prong of Strickland. A review of the record demonstrates that Hansen's representation did not fall below an objective standard of reasonableness, and above all, the petitioner can not show prejudice.Strickland, 466 U.S. at 691 ("[A]ny deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.").
The record establishes that the petitioner cannot satisfy the first prong. The petitioner alleges ineffective assistance of counsel because Hansen did not argue that the petitioner's conviction of aggravated battery should not constitute a felony under the sentencing guidelines. This issue was however addressed by the Court and counsel prior to sentencing. The Court specifically sought additional briefing on the issue and continued the sentencing. Harrison researched the issue and believed that a Motion for Downward Departure would be more advantageous to the defendant. This Court is not willing to second guess Hansen's tactical decision. As recognized by the Fifth Circuit, this issue is one of first impression and therefore, this Court finds Hansen's performance and actions to be objectively reasonable.
Moreover, at petitioner's hearing on his Motion to Correct Sentence, petitioner's new counsel, Reed, argued that petitioner's sentence should be reduced, alleging the aggravated battery committed by the petitioner did not constitute a felony conviction. Therefore, the petitioner's allegation that Hansen offered ineffective counsel by not raising this issue is without merit since the issue was raised by Reed during oral arguments on the Motion to Correct Sentence, held on July 24, 1998. When reviewed under the Strickland criteria, counsel's performance was not deficient and petitioner has not shown that there is a reasonable probability that but for such inaction by counsel, the result of the proceeding would have been different. As such, it is the finding of this Court that the Defendant failed to carry his burden of proof in overcoming the strong presumption that the conduct of his trial counsel fell outside the wide range of reasonable professional assistance.
Petitioner can likewise not satisfy the second Strickland prong. Petitioner is unable to demonstrate that, but for Hansen's deleterious performance, he would have proceeded to trial. This is considered the `prejudice prong' of the Strickland test where petitioner must "affirmatively prove, and not merely allege, prejudice." DeVille v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994). Petitioner has failed to provide, and the Court cannot find, any support in the record for petitioner's claim that he would have proceeded to trial absent Hansen's ineffectiveness. Petitioner received a reduction in his total offense level for acceptance of responsibility for admitting his guilt. Without a showing of prejudice, the Court is entitled to deny petitioner's claim as meritless. Theriot, 18 F.3d at 314; see also DeVille, 21 F.3d at 659.
Regardless of Hansen's alleged ineffectiveness, the Court finds in the alternative that petitioner was fully informed when he entered his plea. "Even where counsel has rendered totally ineffective assistance to a defendant entering a guilty plea, the conviction should be upheld if the plea was voluntary. In such a case there is no actual and substantial disadvantage to the defense." Diaz, 733 F.2d at 376; see also DeVille, 21 F.3d at 659.
"Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 97 S.Ct. 1621, 1629 (1977). During petitioner's re-arraignment, the Court thoroughly and carefully apprized the petitioner in accordance with Rule 11 by questioning the petitioner, and informed petitioner concerning the rights waived pursuant to a guilty plea, reviewed the factual bases, the possible maximum sentence, the ability of the Court to sentence him to the maximum sentence, and the Court's role as final determiner of the sentence. The petitioner answered that he understood. The Court also inquired into whether anyone promised petitioner anything, which induced him to plea, whether petitioner understood the proceedings, and whether petitioner was in fact guilty. To this petitioner denied any extra-inducement, stated that he understood the proceedings, and answered that he was in fact guilty. Petitioner further acknowledged, upon the Court's questioning, that he was satisfied with Hansen's counsel. As such, the Court accepted the petitioner's plea and adjudged him guilty. Throughout those proceedings, the petitioner never objected, expressed confusion, or asked for a continuance. Tellingly, even after the petitioner secured his present counsel to represent him, at the sentencing, the new counsel, John Reed, did not attempt to withdraw the plea or criticize Hansen's representation. Accordingly, it is the finding of this Court that the petitioner's plea was entered into voluntarily and knowingly.
For the preceding reasons, the Court finds that the petitioner's motion is without merit and that an evidentiary hearing is not warranted. Accordingly,
IT IS ORDERED that the Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, be and the same is hereby DENIED.