Opinion
Crim. No. 03-474-01-HA, Civil No. 05-599-HA.
January 3, 2006
ORDER
On April 29, 2005, petitioner, Luis A. Guzman-Betancourt, filed a pro se Petition for a Writ of Habeas Corpus (doc# 69) pursuant to 28 U.S.C. § 2255, and on May 5, 2005 filed an amended petition (doc #71). Petitioner alleges that his former attorney provided ineffective assistance of counsel by not filing a notice of appeal. Petitioner asks the court to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. For the following reasons, petitioner's petition is denied.
BACKGROUND
Petitioner was initially charged with five counts of possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1). He was also charged with one count of forfeiture pursuant to 21 U.S.C. § 853. On January 14, 2004, petitioner signed the government's plea agreement. On January 21, 2004, pursuant to the plea agreement, petitioner pled guilty to a single count of possession with intent to distribute 100 grams or more of a mixture or substance containing heroin. On May 24, 2004, petitioner was sentenced to 188 months confinement.
Petitioner's sentence was not appealed. The original plea offer included a waiver of petitioner's right to appeal. At the request of petitioner's attorney, the government agreed to remove the appeal waiver in the final plea offer.
As part of the plea agreement, the government agreed to refrain from filing a sentencing enhancement under 21 U.S.C. § 851, to dismiss all the charges but Count Five, and to recommend a three-level downward adjustment for acceptance of responsibility and a sentence in the lower end of the applicable guideline range. The government indicated in the plea agreement that because of petitioner's criminal history, the petitioner qualified as a "Career Offender" and would be subject to a base offense level of thirty-four, and a Criminal History Category of VI.
Petitioner pled guilty to Count Five of the Indictment, distribution and possession with intent to distribute more than 100 grams of heroin. In the plea agreement, petitioner also agreed to forfeit certain property that was the proceeds of his narcotic trafficking.
The court reminded petitioner at the sentencing hearing that he had a right to appeal, and that any appeal must be filed within ten days of the entry of judgment, stating that "otherwise, your appeal rights will be deemed waived." Transcript of Sentencing Proceedings at lines 16-19.
ANALYSIS
Petitioner argues that his attorney provided ineffective assistance by failing to file a notice of appeal and to object to the use of petitioner's prior criminal history.
To prevail on a claim of ineffective assistance of counsel, a petitioner must prove both incompetence of counsel and prejudice to petitioner's case. The petitioner bears the burden of showing that counsel's performance was unreasonable in light of the prevailing professional norms and that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687 (1984). The reasonableness of counsel's performance is judged based on the facts of the particular case as they were known at the time of counsel's conduct. Bell v. Cone, 535 U.S. 685, 698 (2002). The standard of review is highly deferential and there is a strong presumption that counsel rendered adequate assistance that fell within the wide range of reasonable professional judgment. United States v. Palomba, 31 F.3d 1456, 1460 (9th Cir. 1994) (citing Strickland, 466 U.S. at 690).
The failure of an attorney to follow a client's request to file an appeal can be professionally unreasonable behavior. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) ("We have long held that lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable."). When the attorney and defendant consult regarding the possibility of an appeal, an attorney "performs in a professionally unreasonable manner only by failing to follow defendant's express instructions with respect to an appeal." Id. at 478.
In this case, there is conflicting recollection as to whether there were any specific instructions regarding the filing of an appeal. Petitioner maintains that he asked his attorney to file a notice of appeal. Petitioner offers no evidence supporting this other than his unsworn statement in the current motion. Counsel filed a sworn statement declaring that petitioner never asked him to file a notice of appeal. Counsel also stated that he visited petitioner, with an interpreter, after the sentencing hearing and petitioner directed him not to file a notice of appeal. Affidavit of J. Henry Langer, page two at lines 13-15.
Assuming, arguendo, that petitioner did ask for an appeal and counsel failed to follow the specific instructions of his client, this behavior, though professionally unreasonable, would not meet the requirement of prejudice in the Strickland two-part test. To show prejudice for failure to file an appeal, a "defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Flores-Ortega, 528 U.S. at 484. Though the appeal waiver was removed from the plea agreement, petitioner has offered no evidence demonstrating that he would have timely filed an appeal.
Petitioner received the lowest sentence that was anticipated under the plea agreement. During the sentencing hearing, petitioner made no indication that he intended to appeal. A "highly relevant factor" in considering whether petitioner would have appealed is whether "the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings." Flores-Ortega, 528 U.S. at 480. Petitioner received significant benefits from the plea agreement and has failed to show prejudice from the lack of an appeal.
Petitioner also argues that he received ineffective assistance of counsel due to counsel's failure to object to the government's enhancement of his sentence. Petitioner claims the government misled him into accepting the plea agreement by stating it would not pursue a sentence enhancement under 21 U.S.C. § 851, and yet included a provision in the plea agreement that anticipated his qualification as a "Career Offender" under Guideline § 4B1.1(a).
The Ninth Circuit Court of Appeals has established different standards for notification under § 851 and the Guidelines. United States v. McDougherty, 920 F.2d 569, 574 (9th Cir. 1990). In McDougherty, the court indicated that under the Guidelines a defendant need not be advised at the time of his plea that he could be sentenced as a career criminal. However, "such notice would be a requirement under section 851." Id. The court also clarified the difference between § 851 and Guideline § 4B1.1, stating:
Section 851 applies when the government seeks to obtain the increased statutory penalties provided in 21 U.S.C. §§ 841- 858 . . . The career offender provision of the Guidelines, on the other hand, does not entail increasing the statutory penalties for the defendant's crime. Rather, Guideline § 4B1.1 simply implements the mandate of 28 U.S.C. § 994(h) that the Sentencing Commission assure that certain career offenders receive sentences "at or near the maximum term authorized" for their crime under existing federal statute.Id. (emphasis in original). The government upheld its agreement not to pursue any enhanced sentencing under § 851, and counsel's failure to object to a plea agreement that anticipated career offender status did not constitute ineffective assistance of counsel.
Petitioner also claims ineffective assistance of counsel because his attorney failed to object to the drug quantity agreed to in the plea agreement. The court finds this argument is without merit.
Finally, petitioner argues that the plea agreement is void because it was signed after the stated acceptance date. Paragraph sixteen of the plea agreement stated that the plea agreement would expire if it was not accepted by 4:00 p.m. on January 2, 2004. Both petitioner and the government signed the plea agreement on January 14, 2004. Though the plea agreement was signed on January 14, the record is silent as to when it was accepted. However, the fact that the government proceeded with the plea is a strong indication that the plea was accepted in a timely manner. The court finds no evidence in the record to support petitioner's argument. CONCLUSION
For the foregoing reasons, petitioner's petition (Doc's # 69 and 71) is DENIED.
IT IS SO ORDERED.