Opinion
02 CV 3036 (RR)
September 27, 2002
Michael Diaz, Inmate # 23666-050, Montgomery, PA, Petitioner, Pro Se
Honorable Roslynn R. Mauskopf, United States Attorney, Eastern District of New York, Nikki Kowalski, Assistant United States Attorney, Brooklyn, NY, Attorney for Respondent
Memorandum and ORDER
Michael Diaz, who was convicted before this court on May 11, 2001 after pleading guilty to conspiring to traffic in five kilograms or more of cocaine, see United States v. Diaz, 01-CR-185 (RR), now petitions pro se for a wn: of habeas corpus pursuant to 28 U.S.C. § 2255. Diaz, who is presently serving a seventy-two month term of incarceration — a significant departure from his 108-135 month guideline range — submits that (1) he was denied effective assistance of counsel both at the time of his guilty plea and at sentencing, and (2) his conviction violates due process as discussed in the Supreme Court's decision inApprendi v. New Jersey, 530 U.S. 466 (2000). Having carefully reviewed the submissions of the parties as well as portions of the original criminal record, the court concludes that the petition must be denied.
1. Collateral Challenge Barred by Plea Agreement
To the extent Diaz's petition challenges his sentence either onApprendi grounds or because counsel is alleged to have been constitutionally ineffective at sentencing, his claim is barred by his plea agreement. In ¶ 4 of that agreement, Diaz expressly stated that he would "not file an appeal or otherwise challenge the conviction or sentence [in his case] in the event that the court imposes a term of imprisonment of 135 months or below." This provision was reviewed with Diaz in open court before his guilty plea, and petitioner stated on the record that he both understood its terms and agreed to them. See Plea Trans., Feb. 26, 2001, at 18. In light of that colloquy and the court's subsequent imposition of seventy-two month term of incarceration, Diaz cannot now collaterally challenge his sentence. See United States v. Yemitan, 70 F.3d 746, 748 (2d Cir. 1995) (holding that a knowing and voluntary waiver of the right to appeal precludes a defendant from challenging a sentence that falls with the range specified in the plea agreement) United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995) (refusing to allow defendant who expressly waived right to appeal sentence within predicted guideline range to challenge sentence in § 2255 petition: "Whatever linguistic distinction may be made between an `appeal' and a § 2255 petition, we are loathe to countenance so obvious a circumvention of a plea agreement"); Yoon v. United States, No. 99-CV-5661 (RR), 2000 U.S. Dist. LEXIS 5176, 2000 WL 516403 at * 2 (E.D.N.Y. March 17, 2000) rejecting § 2255 challenge by defendant who knowingly and voluntarily waived his right to appeal or otherwise challenge any sentence falling within the stipulated guideline range):Defex v. United States, No. 97-CV-1981 (JG), 1998 U.S. Dist. LEXIS 22810, 1998 WL 812572 at *2 (E.D.N.Y. May 19, 1998) (defendant who expressly waives appellate review of sentence cannot obtain review under § 2255); LaSalle v. United States, No. 97-CV-2830 (AGS), 1998 U.S. Dist. LEXIS 2004, 1998 WL 7811185 at *1 (S.D.N.Y. Feb. 23, 1998) (rejecting § 2255 challenge by defendant who had knowingly and voluntarily waived right to appeal or challenge any sentence falling within the stipulated guideline range); see also Jones v. United States, 167 F.3d 1142, 1144-45 (7th Cir. 1999) (holding that same principles applied to assessing the validity of plea agreement waivers of § 2255 review as applied to waivers of direct appeal); United States v. Abarca, 985 F.2d 1012. 1013 (9th Cir. 1993) (dismissing § 2255 challenge to sentence by defendant whose plea agreement waived right to appeal any sentencing issues on condition sentence was imposed within predicted guideline range).
The cover page of the Plea transcript incorrectly states the date as February 26, 2002. The correct date is February 26, 2001.
In Yemitan, the Court of Appeals noted that a waiver of appellate rights might not be enforced if it could be shown that a sentence was so "arbitrary" as to "amount to an abdication of judicial responsibility," or if the sentence was tainted by invidious bias. 70 F.3d at 748. Diaz makes no such claims in this case. nor would the record support them.
Even assuming this procedural bar could be cleared. Diaz would still not be entitled to habeas relief, because his claims are all without merit.
This includes his claim that counsel was ineffective at the time of his guilty plea. To the extent Diaz argues that but for counsel's ineffectiveness he would not have pleaded guilty and, therefore, presumably not entered into the plea agreement, this claim would have to be addressed on the merits.
2. Apprendi Claim
In listing the grounds for his petition, Diaz conclusorily states that his conviction violates "5th and 6th Amendment rights in light ofApprendi v. New Jersey." In the space for "supporting FACTS," he cites to various Court of Appeals decisions discussing Apprendi. In fact, the record reveals no Apprendi violation in Diaz's case.
In Apprendi v. New Jersey, 530 U.S. at 490, the Supreme Court held that "any fact," other than a prior conviction "that increases the penalty for a crime beyond the prescribed statutory maximum" must be treated as an element of the offense and "proved beyond a reasonable doubt." ApplyingApprendi in United States v. Thomas, 274 F.3d 655, 673 (2d Cir. Cir. 2001) (en banc), the Second Circuit ruled that "drug type and quantity are elements of the offense under 21 U.S.C. § 841 that must be charged in the indictment and submitted to the jury for its finding beyond a reasonable doubt."
Preliminarily, this court notes that Thomas was a case heard on direct appeal not collateral review. Numerous courts, including this one, have found that the Apprendi decision cannot be applied retroactively to collateral challenges in light of principles articulated in Teague v. Lane, 489 U.S. 288 (1989). See McCoy v. United States, 266 F.3d 1245, 1254-58 (11th Cir. 2001); United States v. Moss, 252 F.3d 993, 997-1001 (8th Cir. 2001); United States v. Sanders, 247 F.3d 139, 146-51 (4th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1236-38 (9th Cir. 2000);Herrera v. United States, 169 F. Supp. (2d Cir. 92, 97-100 (E.D.N.Y. 2001) (RR); see also United States v. Luciano (Parisi), No. 01-1198 (2d Cir. argued Jan. 28, 2002) (considering retroactive applicability ofApprendi to collateral challenges).
Even if the Apprendi/Thomas rulings did apply collaterally, however, Diaz would not be entitled to habeas relief. First, drug quantity was specifically pleaded in the information to which Diaz pleaded guilty. That charge alleged that defendant "did knowingly and intentionally conspire to distribute and possess with intent to distribute five kilograms or more of a substance containing cocaine . . ." Second, Diaz's sworn allocution provided proof beyond a reasonable doubt that he had transported "more than 150 kilograms" of cocaine in furtherance of the charged conspiracy. Plea Trans., Feb. 26, 2001, at 20. See Medina v. United States, No. 01-CV-2514 (RR), 2002 U.S. Dist. LEXIS 2972 at *9 (E.D.N.Y. Jan. 15, 2002) (holding that plea allocution as to drug quantity satisfies the proof requirements of Apprendi (citing United States v. White, 240 F.3d 127, 134 (2d Cir. 2001) (defendant's stipulation to a drug quantity that triggers a higher statutory minimum renders a jury finding on the issue unnecessary); United States v. Champion, 234 F.3d 106, 110 n. 3 (2d Cir. 2000) (per curiam) (same); United States v. Thomas, 274 F.3d at 671 (distinguishing Thomas's case from those of defendants who "stipulate or allocute to the drug quantity used to enhance . . . sentence")). Finally, because this court sentenced Diaz to seventy-two months. a term of imprisonment well below the twenty year statutory maximum for an offense involving an unspecified drug quantity, see 21 U.S.C. § 841(b)(1)(C), neither Apprendi norThomas requires any particular amount of drugs to be pleaded in the indictment or proved beyond a reasonable doubt to satisfy due process.See United States v. Thomas, 274 F.3d at 663-64.
For all these reasons, Diaz's Apprendi claim must be rejected as both procedurally barred and without merit.
3. Ineffective Assistance of Counsel
Diaz submits that his attorney was constitutionally ineffective in that he (1) misinformed petitioner as to his eligibility for the Bureau of Prisons shock incarceration program. see 18 U.S.C. § 4046; (2) failed to move for a downward departure in sentence based on petitioner's withdrawal from the charged conspiracy; and (3) failed to adequately argue for departure based on post-offense rehabilitation.
A petitioner raising a Sixth Amendment challenge to the performance of counsel carries a heavy burden. He must establish both (1) that counsel's performance was so unreasonable under prevailing professional norms that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," Strickland v. Washington, 466 U.S. 668, 687 (1984). and (2) that counsel's ineffectiveness prejudiced the defendant such 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. Accord United States v. Gordon, 156 F.3d 376, 379 (2d Cir. 1998). Diaz cannot satisfy this standard.
The court looks first to Diaz's complaint that counsel misinformed him about his eligibility for the shock incarceration program. Assuming for purposes of this motion that such an error was objectively unreasonable, petitioner would not be entitled to § 2255 relief because he fails to demonstrate ensuing prejudice.
The shock incarceration program. established pursuant to 18 U.S.C. § 4046, allows certain inmates to serve up to six months of their sentences in an intensive supervision program, upon successful completion of which they may serve their remaining sentences in a graduated release program. See Commentary to U.S.S.G. § 5F1.7. To be eligible for the shock incarceration program a prisoner must be serving a sentence of more than twelve but less than thirty months. See 28 C.F.R. § 524.31(a)(1)(i). Prisoners sentenced to more than thirty but less than sixty months can still apply for the program but only when they are within twenty-four months of their projected release dates. Id. at § 54.31(a)(1)(ii). Prisoners such as Diaz, sentenced to more than sixty months' incarceration, are not eligible for this program.
Apparently, as his sentencing remarks indicate, defense counsel mistakenly thought that Diaz could apply for the shock incarceration program when his remaining prison term was sixty months. See Sentencing Trans., May 11, 2001, at 25. For precisely this reason, he applied for and received a court recommendation that Diaz be considered for the program when he became eligible. Id. at 24-25.
The court mistakenly thought petitioner might become eligible when he had thirty months left on his sentence. Significantly. the court's recommendation that Diaz be considered for the program was not based on any desire to reduce petitioner's term in custody. Rather, the court sought to afford him the opportunity to participate in a program that would help him develop self-discipline and maturity. See id. at 28 ("Mr. Diaz doesn't impress me with his maturity").
A liberal reading of Diaz's papers suggests that he believes he was prejudiced because if counsel had correctly understood the eligibility requirements of the shock incarceration program, he would have argued for and secured a sentence of sixty rather than seventy-two months. Diaz is mistaken. As this court's sentencing remarks reveal, it was with great reluctance that it granted any departure from Diaz's 108-135 month guideline range. This reluctance was overcome only because of vigorous advocacy by defense counsel, and despite Diaz's own selfish and self-pitying statements at sentencing Id. at 28. As the court explained:
[I]t would be difficult for me to imagine more serious criminal conduct. On one occasion you drove 80 kilograms of cocaine cross-country. . . . On another occasion you helped to unload 470 kilograms of cocaine. The quantities are staggering. . . . What troubles me . . . as I look at all of this is that you got a signal a number of years beforehand about the risks you were taking. . . . In 1994 when you were 25 years old, already an adult . . . with a family, with children, you were arrested for selling cocaine at DeLeon's Tavern, the same place where you got mixed up in the more serious conduct.
Instead of being prosecuted for that, they dismissed those charges and allowed you to go into [a] pretrial intervention program. . . . And instead of looking at your wife and looking at your children and saying. . . . what did I come close to jeopardizing here, you took your chances twice more. You took a chance not only on your life but on theirs, and that's what troubles me. . . . Mr. Quijana has tried to make a very, very powerful argument . . . to give you sentencing consideration and it's built in significant part on your family. . . . I have no doubt about their concern . . . . for you. What troubles me is . . . your not having enough care and regard for them. I've already alluded to the fact that there were a number of years . . . where you left your wife and children. You left her to cope, not only with all the financial problems but the fact that some of your children needed medical attention . . . .
Now somehow over the last two years it seems that you have put this back together and as a result, [your wife], your children, other family and friends are really distraught at the thought that this is all going to be disrupted again. But as I told you. the crime is too serious for me to say well, you seem to be back on track now so I'll put you on probation, go home and see what you can do . . . .
What the guidelines say is that this is a sentence that should be in the range of 108 to 135 months. . . . That is a very long sentence. When I look just at the quantity of drugs involved, that seems to me to be perfectly appropriate but I told you I would look not only at the crime but at you as an individual.
Mr. Quijana . . . [l]ooking individually at the various factors you have cited might not be enough to support departure, but I will look at them collectively as you have urged. . . . [W]hen I look at all the facts and circumstanc[es] here, the most leniency I can show is to sentence you to a term of 72 months.Id. at 20-24.
Precisely because Diaz in fact received the most lenient sentence this court was prepared to impose in his case, he cannot show that counsel's misunderstanding of the eligibility requirements of the shock incarceration program caused him any prejudice at sentencing.
Insofar as counsel may have communicated the same misinformation to Diaz at the time of his guilty plea, to establish prejudice underStrickland, petitioner must demonstrate "reasonable probability" that but for counsel's error, "he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Diaz cannot make this showing.
Although a factual dispute exists between the parties as to whether defense counsel communicated erroneous information about Diaz's eligibility for the shock incarceration program only at the time of sentence or also in advance of the guilty plea, the court here assumes the facts most favorable to petitioner, i.e., erroneous information on both occasions. Even with this assumption, however, the petition must be dismissed as without merit.
Although he now claims that his understanding of his eligibility for the shock incarceration program was the "cornerstone" of his decision to plead guilty, the record does not support this self-serving claim. First, whatever Diaz's understanding of his eligibility for the shock incarceration program, at the time of his guilty plea he could not have assumed either that this court would recommend him for the program or that the Bureau of Prisons would accept him into it. Thus. it is highly unlikely that the "cornerstone" of his decision to plead guilty to a crime that exposed him to a mandatory minimum prison sentence of ten years and a possible maximum sentence of life imprisonment was his eligibility many years down the road for a discretionary prison program. Rather. the record strongly suggests that the critical factors in Diaz's decision to plead guilty were more immediate and concrete: (1) the prosecution's satisfaction with Diaz's "safety valve" proffer. see U.S.S.G. § 5C1.2, which made him eligible for a sentence below the mandatory minimum; (2) his desire to secure a three-level guideline reduction by accepting responsibility at his plea, see U.S.S.G. § 3E1.1(b); and (3) his lawyer's correct) assumption that a downward departure motion would be more successful in the context of a guilty plea.
Second, Diaz cannot credibly claim that but for counsel's error he would have stood trial when the relief he demands of this court is not a new trial but a reduced sentence — presumably on his original guilty plea — to a term of sixty months. That relief is not available on a claim of ineffective assistance of counsel at a guilty plea. See Strickland v. Washington, 466 U.S. at 704 ("a finding of ineffective assistance of counsel requires a new trial") (Brennan, J., concurring in part, dissenting in part); See also Fed.R.Crim.P. 33. Moreover, for reasons already stated, this court would not be inclined to impose a sixty month sentence whether Diaz was convicted by guilty plea or jury verdict.
Finally, Diaz's claim that he would not have pleaded guilty but for counsel's erroneous advice is undermined by petitioner's failure to say anything about the shock incarceration program at the time of his plea colloquy. The court does not suggest that petitioner had an obligation to raise the issue. It notes only that a review of the plea colloquy strongly suggests that a reasonable person relying on the expectations now advanced by Diaz would likely have done so. Diaz's omission suggests that his claim is not bona fide.
Specifically, Diaz might reasonably have been expected to confirm his eligibility for the shock incarceration program when the court sternly advised him that his guilty plea exposed him to a mandatory minimum jail sentence of ten years. See Plea Trans., Feb. 26, 2001 at 13. After all, the attraction of the shock incarceration program for most prisoners is the possibility it offers of early release, something at odds with the concept of a mandatory minimum sentence. Diaz's silence is even more curious given the court's emphatic admonition that the statutory minimum might render petitioner ineligible for the low end of the 108-135 month guideline range predicted in the plea agreement. Id. at 16. Upon hearing this, a reasonable person might well have asked if the statutory minimum court also affect eligibility for the shock incarceration program. Similarly, although the court acknowledged the parties' expectation that Diaz would qualify for the "safety valve" exception to the statutory minimum, see U.S.S.G. § 5C1.2, it cautioned petitioner that the ultimate decision about his eligibility for this exception rested with the court. Id. at 16-17. Diaz stated that he understood these circumstances, as well as his waiver of any right to appeal or challenge a prison sentence of 135 months or less, but he never sought to confirm that under these circumstances he would indeed be eligible for the shock incarceration program. Id. at 17-18. Even when specifically asked, "Is there anything you would like to get clarified about your rights or sentence or anything else relating to the charge." Diaz stated. "No, you have been clear, Your Honor." Id. at 18-19. Finally, when asked if there were any promises on which he was relying in pleading guilty, Diaz answered, "No, your Honor." This colloquy, considered in its entirety. is simply not consistent with Diaz's claim that the shock incarceration program was the "cornerstone" of his decision to plead guilty.
Because petitioner has failed to show that but for counsel's errors he would have stood trial rather than pleaded guilty, his Sixth Amendment challenge to his guilty plea must be rejected as without merit.
Diaz's remaining Sixth Amendment claims merit little discussion. As the government correctly notes, defense counsel was not constitutionally ineffective for failing to urge a downward departure in sentencing based on Diaz's purported withdrawal from the charged conspiracy for the simple reason that the facts do not support a withdrawal defense. Counsel did, however, forcefully argue to this court that the positive facts and circumstances of Diaz's life since the crime of conviction — the very facts Diaz now cites to evidence "withdrawal" — supported departure on a combination of grounds, including extraordinary family ties and responsibilities, including a very large family debt, and post-offense rehabilitation. The latter argument was not inadequately advanced, as Diaz contends. To the contrary, it was counsel's forceful advocacy that overcame this court's reluctance to grant Diaz a guideline departure. Diaz may be disappointed with the extent of the court's departure, but that hardly evidences ineffective assistance by his counsel.
His own remarks at sentencing suggest that Diaz had an unrealistic expectation of receiving a non-incarceratory sentence. See Sentencing Trans., May 11, 2001 at 17, 28-29.
Diaz's Sixth Amendment claim is rejected in its entirety as without ment.
Conclusion
For the reasons stated, the court finds that Michael Diaz's claims that he was (1) denied effective assistance of counsel at his guilty plea and sentence, and (2) convicted in violation of due process of law as discussed in Apprendi v. New Jersey, are procedurally barred in part by his plea agreement and, in any event, without merit. Accordingly, Diaz's § 2255 motion is denied in its entirety as is a certificate of appealability. The Clerk of the Court is to mark this case closed.