Opinion
CIVIL NO. 99-1287 (DRD) (Crim. No. 95-104 (DRD))
July 13, 2000.
REPORT AND RECOMMENDATION
Above plaintiff is filing this petition for post-conviction relief after he entered a plea and was sentenced within the applicable Sentencing Guidelines. 28 U.S.C. § 2255. He claims ineffective assistance of his retained counsel at sentencing and appeal, and a failure to inform the defendant of the consequences of the plea. In particular, the defendant objects to the Court having increased by two points the sentencing level for his role as a supervisor. He has also alleged that counsel failed to move the court for a reduction under the "safety valve" provisions and to oppose forfeiture of property which did not belong to the defendant.
Insofar as the last two claims, the safety valve provisions would not be available to this defendant since he is not considered a minor or minimal participant in the offense and counsel was not required to submit to the sentencing court arguments that were futile or improper. Defendant did reach within his plea agreement a voluntary forfeiture of some property that is not opposed in the petition. The plea agreement included a forfeiture charged in count 12, for which the government dismissed the first property listed in said count. Defendant agreed to forfeit and so indicated in the plea and during the colloquy before the court, the property shown in paragraph 10 of the plea agreement. As to the remaining properties, defendant retained another attorney to represent his interest in a separate civil case. These are not part of the criminal proceeding at issue and were handled separately. Still, regarding the forfeiture of property the defendant claims it did not belong to him, such a cause of action would pertain to third-party claimants and this defendant has no standing to contest the forfeiture. There was ample opportunity for any such third party to object and seek relief from forfeiture.
Property located at kilometer 13, hectometer 5, Guaynahibo Ward, Joyuda Sector, Cabo Rojo, Puerto Rico.
The issue regarding the two level enhancement of the sentence because of the defendant's supervisory role is pellucidly discussed during the plea and sentencing proceedings and was also raised on appeal. The appeal court determined there was "ample support for the district court's findings that Ramírez had a supervisory role within the meaning of U.S.S.G. § 3B1.1c)." In addition, the record of the district court set forth clearly the reasons for imposing the enhancement: 1) the plea agreement specifically provided for the enhancement, and 2) there was factual support for the finding that defendant's role was supervisory, including factual averments in the Presentence Report and information obtained from other codefendants' plea and sentence hearings, to which defendant had opportunity to review before the sentence was imposed. See transcript of change of plea of April 16, 1996.
The record also shows defendant well knew that his sentencing level was 27 and the recommendation was for a term of imprisonment of 70-87 months, but the sentence to be imposed was left to the sound discretion of the court. Tr. 4-16-96, p. 12.
Furthermore, during the sentencing proceedings the defendant was again apprised of the plea agreement wherein the defendant accepted he was not a manager but was a supervisor. Even if he had not accepted it, the presiding judge indicated to defendant he had received case testimony from other defendant in his plea that he was guided and/or helped by defendant Ramírez Vega. Tr. 8-20-96, pp. 7-9. Defendant's rejection of the supervisory role that caused an increase of two levels in the sentencing guideline is amply refuted by the record before the court and affirmed during his appeal. Still, the sentence imposed by the court, having granted a three level decrease for acceptance of responsibility, for a total offense level of 27 and a criminal history category of one, fell within the expected guideline of 70 to 87 months discussed during plea proceedings. The defendant was sentenced in the lower middle range of the guideline to serve 76 months, within the proper sentencing guidelines.
At the district, appeal or post-conviction level no defects to Rule 11 proceedings have been raised. As such, the plea entered was knowing and voluntary, bearing an intentional relinquishment or abandonment of known rights or privileges. United States v. Gray, 63 F.2d 57, 60 (1st Cir. 1995) (citing United States v. Cotal-Crespo, 47 F.3d 1, 4 (1st Cir. 1995)). Absent coercion or mistake, defendants are not allowed to renege plea agreements on the basis that they have miscalculated their risks and benefits. United States v. Allard, 926 F.2d 1237 (1st Cir. 1991). See also United States v. Marrero Rivera, 124 F.3d 342 (1st Cir. 1997).
Regarding the claim of ineffective assistance of counsel, defendant has not presented any ground within the standard of review of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1983) to identify the acts or omissions of his counsel that would warrant a post-conviction relief. Both at the plea and sentencing proceedings, defendant acknowledged he was satisfied with the services of his counsel, Attorney Noriega, whom he retained for the criminal proceedings. A claim was presented to the court that he had some reservation with the services provided by another counsel he had retained to represent his interest as to property the government sought to forfeit in a separate claim and not part of the plea and conviction at issue in this petition.
A convicted defendant making a claim of ineffective assistance of counsel must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determined whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 690.
Above petitioner bears a very heavy burden on an ineffective assistance claim since there is a strong presumption, not rebutted by the existent record herein, that counsel acted within the range of reasonable professional assistance. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838 (1993); Perron v. Perrin, 742 F.2d 669 (1st Cir. 1984).
Summary dismissal of a petition is appropriate when the petition is conclusively refuted as to the alleged facts by the files and the record of the case. United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978).
Having examined petitioner's claims, the transcript of plea and sentencing proceedings and all the documents in the record, it is recommended that the petition be dismissed.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time, waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994); a United States v. Valencia, 792 F.2d 4 (1st Cir. 1986).
IT IS SO RECOMMENDED.
San Juan, Puerto Rico, July 10, 2000.