Opinion
Nos. CIV 04-1390 LH/WPL, CR 00-1462 LH.
May 3, 2006
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
This matter is before me on Roberto Vega-Rey's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. He pleaded guilty to two counts of possession with intent to distribute less than five grams of cocaine base, one count of possession with intent to distribute five grams and more of cocaine base, and one count of conspiracy to possess with intent to distribute 50 grams and more of cocaine base. He was sentenced to 120 months' incarceration and five years' supervised release. For the reasons that follow, I recommend that Vega-Rey's motion be denied.
PROPOSED FINDINGS PROCEDURAL BACKGROUND
On November 8, 2000, five defendants were charged with violations of drug trafficking laws, including conspiracy to possess with intent to distribute 50 grams or more of cocaine base. [Doc. 1] On August 9, 2001, a second superseding indictment added Vega-Rey as a defendant in the conspiracy count and charged him with two counts of possession with intent to distribute less than five grams of cocaine base and one count of possession with intent to distribute five grams and more of cocaine base. [Doc. 117]
Docket numbers refer to the criminal case, No. CR 00-1462 LH.
A jury was selected on September 17, 2001, and trial began on September 24, 2001. [Doc. 158, 188] On September 25, 2001, before the second day of trial began, Vega-Rey pleaded guilty to the four charges against him. [Doc. 184]
Vega-Rey was scheduled to be sentenced on October 8, 2002. At the hearing, he requested new counsel. [10/08/02 Tr. at 4-6] The Court granted his motion to have his counsel discharged and another attorney assigned to represent him. Id. at 44-45. On January 13, 2003, Vega-Rey was sentenced to 120 months' incarceration and five years' supervised release. [Doc. 302]
References to the hearing held on October 8, 2002 are cited as "[10/08/02 Tr. at ___]."
Vega-Rey appealed his sentence. United States v. Vega-Rey, 75 F. App'x 749, 750 (10th Cir. 2003) (unpublished decision). On September 25, 2003, the Tenth Circuit affirmed. Id. at 751.
On December 13, 2004, Vega-Rey filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. [Doc. 324] Plaintiff filed a response to the motion [Doc. 331] and Vega-Rey filed a reply [Doc. 334]. The presiding judge then referred this matter to me to recommend an ultimate disposition of the case. [Doc. 337]
STANDARDS OF REVIEW
A petition under 28 U.S.C. § 2255 attacks the legality of a federal prisoner's detention. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Under § 2255, a federal prisoner "may move the court which imposed the sentence to vacate, set aside or correct the sentence" if "the sentence was imposed in violation of the Constitution or laws of the United States, or the court was without jurisdiction to impose such sentence, or the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255.
Section 2255 motions are not available to test the legality of matters that should have been raised on direct appeal. United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). Failure to present an issue on direct appeal bars a petitioner from raising that issue in his § 2255 motion, unless he can show cause excusing his procedural default and actual prejudice resulting from the errors of which he complains, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed. Id. A petitioner may not bring a claim under § 2255 that was considered and disposed of on direct appeal. Id.
Because Vega-Rey is proceeding pro se, I will construe his pleadings liberally. See Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519 (1972)). This broad reading of a pro se litigant's pleadings does not, however, relieve him of the burden of alleging sufficient facts upon which a legal claim may be based. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court is not required to fashion a pro se litigant's arguments for him where his allegations are conclusory and lack supporting factual averments. United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (citing Hall, 935 F.2d at 1110).
INEFFECTIVE ASSISTANCE OF COUNSEL
Vega-Rey asserts that his counsel was ineffective for failing to object to the presentence report and request a hearing regarding eligibility for safety valve relief, giving him advice that contradicted the safety valve provision, failing to object to a Rule 11 violation, and failing to adequately investigate and advise him regarding his case.
Legal Standards
Collateral attacks on guilty pleas are generally prohibited. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). If a defendant has pleaded guilty, the only non-jurisdictional avenue to challenge his conviction is to claim that the plea was not knowing and voluntary. Romero v. Tansy, 46 F.3d 1024, 1033 (10th Cir. 1995). "Performance by defense counsel that is constitutionally inadequate can render a plea involuntary." Id.To establish ineffective assistance of counsel, a habeas petitioner must satisfy a two-part test. First, he must show that counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Judicial scrutiny of counsel's performance is highly deferential; thus, the petitioner must overcome the presumption that the challenged action might be considered sound trial strategy. Id. at 689. Second, the 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. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
"In the guilty plea context, to establish a claim for ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that, but for counsel's error, the defendant would have insisted upon going to trial." United States v. Silva, 430 F.3d 1096, 1099 (10th Cir. 2005) (citing Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)). The court should consider the factual circumstances surrounding the guilty plea, and "the assessment of whether he would have changed his plea depends in large part on a prediction of whether the outcome of the district court proceedings would have been different if his counsel had not committed the alleged errors." United States v. Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002); see Hill, 474 U.S. at 59. "A defendant making an ineffectiveness claim on a counseled guilty plea must identify particular acts and omissions of counsel tending to prove that counsel's advice was not within the wide range of professional competence." Moore v. United States, 950 F.2d 656, 660 (10th Cir. 1991).
Safety Valve Relief
Plaintiff argues that Vega-Rey is barred from raising the issue of safety valve relief because it was considered and disposed of on direct appeal. [Doc. 331 at 9] However, Vega-Rey brings a claim of ineffective assistance of counsel, which should ordinarily be raised on collateral review. See United States v. Galloway, 56 F.3d 1239, 1240-41 (10th Cir. 1995) (en banc) ("Ineffective assistance of counsel claims should be brought in collateral proceedings. . . . Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed."); see United States v. Cobos, 92 F. App'x 650, 656 (10th Cir. 2004) (unpublished decision) (refusing to consider on direct appeal a claim that counsel were ineffective because they failed to object to the presentence report). Since Vega-Rey claims ineffective assistance of counsel, I will consider his claims.
Vega-Rey first asserts that his counsel was ineffective for failing to object to the presentence report regarding eligibility for safety valve relief. [Doc. 324 at 13-17] The Tenth Circuit determined on direct appeal that Vega-Rey had not provided evidence that he met the requirements for safety valve relief. Vega-Rey, 75 F. App'x at 751. The court noted that "the district court thoroughly queried Appellant about whether he wanted to debrief, and Appellant indicated that he did not wish to do so." Id. Vega-Rey has not shown that the outcome of the proceeding would have been different had his counsel objected to the presentence report, given Vega-Rey's indications that he did not want to debrief.
Vega-Rey also contends that his counsel should have requested an evidentiary hearing on the finding in the presentence report that he had not met the requirements for safety valve relief. [Doc. 324 at 13-17] However, an evidentiary hearing was not necessary given Vega-Rey's statement that he did not want to debrief. Even if counsel was deficient in not requesting an evidentiary hearing, Vega-Rey has not demonstrated a reasonable probability of a different outcome had counsel requested an evidentiary hearing.
Vega-Rey argues that his counsel gave him advice that contradicted the safety valve provision. Id. at 18-22. The safety valve provision requires that the defendant truthfully provide all the information he has regarding the offense or offenses that were part of the same common scheme or plan. U.S. SENTENCING GUIDELINES MANUAL § 5C1.2(a)(5). The provision also states that "the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement." Id.
Vega-Rey points to counsel's statement that "[Vega-Rey] would need to provide more information and adequate information to help the government." [Doc. 324 at 18; 01/13/03 Tr. at 7] He argues that counsel confused § 5C1.2(a)(5) with § 5K1.1, which allows the court to depart from the guidelines if "the government stat[es] that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense." U.S. SENTENCING GUIDELINES MANUAL § 5K1.1. Counsel's statement that Vega-Rey would have to provide "more information and adequate information to help the government" appears to refer to the requirement in § 5C1.2(a)(5) that Vega-Rey truthfully provide all of the information he had. Counsel made no reference to the language in § 5K1.1. There is no basis for finding that Vega-Rey's counsel confused these two provisions. Vega-Rey has not demonstrated that he received erroneous advice regarding the requirements of the safety valve provision.
References to the hearing held on January 13, 2003 are cited as "[01/13/03 Tr. at ___]."
Failure to Object to Rule 11 Violation
Vega-Rey argues that counsel was ineffective for failing to contemporaneously object to the trial court's violation of Rule 11 of the Federal Rules of Criminal Procedure. [Doc. 324 at 12, 23-25] He argues that there was an insufficient factual basis to demonstrate that he was guilty. Id.; see FED. R. CRIM. P. 11(f).
Acceptance of a guilty plea without full compliance with Rule 11 requires that the guilty plea be vacated. United States v. Keiswetter, 866 F.2d 1301, 1302 (10th Cir. 1989) (en banc). However, a court need not vacate the guilty plea unless the alleged error affected the defendant's substantive rights. See United States v. Barry, 895 F.2d 702, 704 (10th Cir. 1990) (citing FED. R. CRIM. P. 11(h) ("Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.")). To demonstrate that the Rule 11 violation affected his substantive rights, the defendant must show that knowledge of the court's variance from Rule 11 would have changed his decision to plead guilty. United States v. Wright, 930 F.2d 808, 810 (10th Cir. 1991). By conducting a Rule 11 plea colloquy, the sentencing judge ensures that the defendant knows and understands, and knowingly and voluntarily waives, his statutory and constitutional rights. United States v. Buonocore, 416 F.3d 1124, 1139 (10th Cir. 2005). Rule 11 requires that the court inform the defendant of and ensure that he understands his trial rights, his waiver of those rights if he pleads guilty, the nature of the charges against him, and possible punishments. FED. R. CRIM. P. 11(b)(1). The court must address the defendant personally in open court and ensure that his plea is voluntary. Id. 11(b)(2). It must also determine that there is a factual basis for the plea. Id. 11(b)(3). The court must assess whether the defendant fully understands the consequences of the plea. United States v. Williams, 919 F.2d 1451, 1456 (10th Cir. 1990).
The Court addressed Vega-Rey in open court during the plea hearing. [ See Plea Tr.] Vega-Rey agreed to tell the Court if he did not understand any question asked of him. Id. at 4. Vega-Rey responded in the affirmative when asked whether he had been read the second superseding indictment in Spanish, whether he had discussed it with his counsel and was satisfied with the explanations, and whether he understood all of the charges. Id. at 5. The Court asked him whether he understood all of the charges and whether he was fully satisfied with his representation. Id. The Court satisfied itself that Vega-Rey understood the maximum penalties. Id. at 6. It ensured that no one had made promises or threats to get Vega-Rey to plead guilty and that Vega-Rey understood guideline sentencing. Id. at 7-8. Vega-Rey was asked whether he had discussed guideline sentencing with his counsel, and he did not have any questions about guideline sentencing when asked by the Court. Id. at 8, 9. He was also asked whether he understood the consequences of pleading guilty and the rights that he was giving up by doing so. Id. at 9-11. He responded affirmatively to all of these questions. Id. at 8-11. The factual basis for the plea was demonstrated during the first day of trial and when the prosecutor summarized at the plea hearing additional evidence that the government would present. Id. at 11-12. Since there was no violation of Rule 11, Vega-Rey's counsel did not render ineffective assistance by failing to object to a Rule 11 violation.
References to the plea hearing held on September 25, 2001 are cited as "[Plea Tr. at ___]."
Failure to Investigate and Advise
Vega-Rey argues that his plea was not knowing and voluntary because his counsel failed to investigate adequately. [Doc. 324 at 26-29]. Where a defendant alleges that his counsel failed to investigate adequately the charges to which he pleaded guilty, he must show what the investigation would have uncovered and how that would have altered his decision to plead guilty. See Romero, 46 F.3d at 1033.
Vega-Rey has not identified what further investigation would have revealed or how any information discovered would have affected his decision to plead guilty. Assuming that his counsel was ineffective in failing to investigate adequately, Vega-Rey has not demonstrated a reasonable probability that, but for this error, he would not have pleaded guilty and would have insisted on proceeding with his trial.
Vega-Rey also argues that his counsel did not adequately advise him and ensure that he understood the documents that counsel sent him for review. [Doc. 324 at 27-28] He does not allege that he ever requested a translation of any documents. See U.S. v. Martinez, 120 F. Supp. 2d 509, 514-15 (W.D. Pa. 2000); cf. Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989) ("To allow a defendant to remain silent throughout the trial and then, upon being found guilty, to assert a claim of inadequate translation would be an open invitation to abuse."). Vega-Rey has not demonstrated a reasonable probability that, but for counsel's error, he would have insisted on proceeding with his trial.
INVOLUNTARY PLEA
Vega-Rey claims that his plea was not knowing and voluntary. [Doc. 324 at 30-33] He argues that he does not understand English and that his "literacy in Spanish is rudimentary." Id. at 31. He contends that "neither the court nor his attorney explained the consequences he faced in terms he could understand." Id. at 32 (emphasis omitted).
As noted above, the Court fully complied with Rule 11 and ensured that Vega-Rey's plea was knowing and voluntary. Vega-Rey was provided with an interpreter, and he stated that he had studied English. [Doc. 184; Plea Tr. at 4] He stated that he understood the charges against him, the maximum penalties, guideline sentencing, and the consequences of pleading guilty. [Plea Tr. at 4-11] "Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977). Vega-Rey has failed to show that his plea was not knowing and voluntary.
EVIDENTIARY HEARING
In habeas proceedings, a district court must conduct an evidentiary hearing "[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." United States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996) (quotation and citation omitted). I need not conduct an evidentiary hearing because the motion and files and records conclusively demonstrate that Vega-Rey is entitled to no relief.
RECOMMENDED DISPOSITION
For the reasons stated herein, I recommend that Vega-Rey's § 2255 motion [Doc. 87] be DENIED.