Opinion
00 Civ. 7284 (JSM), 93 CR 783 (JSM).
March 9, 2001.
MEMORANDUM OPINION AND ORDER
Tang Xue Dan ("Petitioner"), who pleaded guilty to charges of racketeering, murder for hire and alien smuggling and was sentenced to thirty years imprisonment, petitions under 28 U.S.C. § 2255 to set aside his conviction.
Petitioner alleges that his plea of guilty was induced by representations from his attorney and the Government that he would receive a sentence of fifteen years. He also makes a claim that his counsel was ineffective.
Petitioner's claim that he was induced to plead guilty because he was told that he would receive a sentence of fifteen years is directly contradicted by statements he made to the Court at the time he pleaded guilty in 1999. At that time, he advised the Court that his plea agreement had been read to him by an interpreter before he signed it and that his attorney had also explained it to him. (Plea Tr. at 11.) The plea agreement specifically stated:
It is understood that the sentence to be imposed upon Tang Xue Dan is within the sole discretion of the Court. This Office cannot, and does not, make any promise or representation as to what sentence Tang Xue Dan will receive, and will not recommend any specific sentence to the Court.
(Plea Agreement at 3.)
Petitioner also stated at the plea proceeding that no one had made any promise to him to persuade him to plead guilty other than the things set out in the plea agreement. (Plea Tr. at 12.)
This clear record precludes his current claim that his plea was induced by promises of a specific sentence because Petitioner acknowledged knowing the contents of his plea agreement which specifically stated that the sentence he would receive was within the sole discretion of the Court and that the Government would make no sentencing recommendation. (Plea Tr. at 10-12.)
Moreover, even if Petitioner's allocution was not as clear, Petitioner can not claim that at the time he pleaded in 1999 he was unaware that he could not rely on any alleged predictions by the prosecutor or the defense counsel. Although Petitioner claims he was induced to cooperate and plead guilty by the representations of his first attorney and the government that he would receive a sentence of fifteen years, those representations were allegedly made prior to Petitioner's initial plea of guilty in 1998. Petitioner had been sentenced to thirty years on that plea, but was ultimately allowed to withdraw that plea because he had not been advised of the mandatory minimum term at the time he initially pleaded guilty. Thus, when he pleaded guilty in 1999, he knew that the Court was not bound by any representation that either the prosecutor or defense counsel had made in the early stages of his cooperation. In light of this record, Petitioner's claim that he pleaded guilty in 1999 believing that the Court would be bound by a recommendation from the prosecutor of a fifteen year sentence is frivolous.
Petitioner next contends that his trial counsel was ineffective. In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish: 1) that counsel's performance was deficient; and 2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). To establish prejudice "[t]he 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, 104 S. Ct. at 2068.
Petitioner contends that his first counsel was ineffective because, after Petitioner agreed to cooperate with the Government, counsel permitted him to meet with Government agents without his counsel being present. However, this is not at all unusual in the case of cooperating defendants and, in any event, Petitioner has not shown any resulting prejudice. In pleading guilty Petitioner acknowledged his guilt of the crimes charged and waived any right to challenge any evidence the Government may have used against him had he gone to trial. See Haring v. Prosise, 462 U.S. 306, 319, 103 S. Ct. 2368, 2376 (1983) (citingBrady v. United States, 397 U.S. 742, 747-748, 90 S. Ct. 1463, 1468 (1970).
Petitioner also claims that his second counsel was ineffective in not pursuing a claim that Petitioner was not competent to stand trial and in failing to offer an insanity defense. However, the report of the psychologist who examined Petitioner did not indicate either that he was insane at the time of the crimes or that he was not competent to stand trial. Counsel's decision to use the psychologist's report in support of a mitigation argument rather than to pursue either of the courses Petitioner now suggests was well within the range of tactical strategy that is left to the professional judgment of defense counsel, and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . ."Strickland v. Washington, 466 U.S. at 669, 104 S. Ct. at 2055.
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2255 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915(a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 920 (1962). The Court determines that the petition presents no question of substance for appellate review, and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.