Opinion
CV 00-6542 (RR); CV 00-6667 (RR)
March 26, 2001
RUTH TORRES, Petitioner, Pro Se.
JOSE HARKLESS, Petitioner Pro Se.
Dwight C. Holton, Assistant U.S. Attorney HONORABLE LORETTA E. LYNCH UNITED STATES ATTORNEY EASTERN DISTRICT OF NEW YORK Attorney for Respondent.
Amended Memorandum and 0RDER
Ruth Torres and her common law husband, Jose Harkless, have each filed pro se petitions asking this court to recalculate the sentences imposed on them on January 23, 1998 as a result of their guilty pleas to conspiring to distribute and possess with intent to distribute over one kilogram of cocaine base, commonly referred to as "crack." See 21 U.S.C. § 841(b)(1)(A), 846; United States v. Torres, et al., CR 96-1098(RR). Relying on the recent Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), Harkless submits that his 135-month sentence, which was within the range agreed to between the parties pursuant to Fed.R.Crim.P. 11(e)(1)(C), although a significant downward departure from his sentencing guideline range of 168-210 months, was unlawfully imposed because it was calculated with reference to facts not proved beyond a reasonable doubt. Ms. Torres raises a similar Apprendi challenge to her 135-month sentence, also the product of a Rule 11(e)(1)(C) agreement and within the 135-168 month guideline range calculated in her case. Ms. Torres further complains that she was denied effective assistance of counsel in connection with her plea and sentence. The government opposes the petitions both on procedural grounds and the merits. Both petitioners have now filed reply papers.
This court has carefully reviewed all submissions by the parties as well as relevant portions of the record in the original criminal case. It concludes that the petitions must be denied as without merit.
Factual Background
From 1989 until late 1996, Ruth Torres and Jose Harkless actively participated in a family-run drug ring that converted multi-kilogram quantities of cocaine hydrochloride into crack cocaine, which it then distributed on the streets of Brooklyn. Ms. Torres cooked, packaged, and stored the crack at her home in Brooklyn. She also served as the organization's bookkeeper. Meanwhile, Harkless helped manage some of the organization's distribution points, advising his brother-in-law, Cesar Torres, who led the organization, when crack supplies were running low. Harkless was further responsible for transporting kilogram of quantities of cocaine and cash proceeds for the organization.
On October 6, 1997, Ms. Torres, Harkless, and various of their confederates pleaded guilty to conspiring to distribute and possess with intent to distribute cocaine and cocaine base. Each signed a written plea agreement with the government, which, pursuant to Fed.R.Crim.P. 11(e)(1)(C), provided specific sentencing ranges. For Ms. Torres, the agreed-upon range was 135-168 months. R. Torres Plea Agreement ¶ 2. For Harkless, the agreed-upon range was 108-135 months. Harkless Plea Agreement ¶ 2. Each agreement expressly stated that "if the Court rejects . . . the agreed-upon sentence, the defendant shall be afforded the opportunity to withdraw his/her plea." R. Torres Plea Agreement ¶ 2; Harkless Plea Agreement ¶ 2. In return, petitioners agreed, inter alia, "not to file an appeal or otherwise challenge his/her conviction in the event that the Court imposes a sentence within the [agreed-upon] range. . . ." R. Torres Plea Agreement ¶ 3; Harkless Plea Agreement ¶ 3. In discussing this waiver with petitioners, the court explained to Harkless: "If I accept these ranges and sentence you within them, anywhere within them, even at the very top end, you would be giving up your right to appeal anything relating to your conviction." Harkless Plea Minutes 27-28. Asked if he understood, Harkless replied, "Yes." Id. at 28. In the case of Ms. Torres, the court stated: "Your plea agreement provides for a sentencing range of 135 to 168 months in jail. This means that if I agree and sentence you anywhere within that range, you could not take back your guilty plea, you could not appeal your conviction or sentence." R. Torres Plea Minutes 37. Asked if she understood, Ms. Torres replied, "Yes." Id.
One defendant, Reginald Sonds, stood trial and was convicted. See United States v. Torres. et al., 199 F.3d 1324 (2d Cir. 1999) (Table) (unpublished decision available at 1999 U.S. App. LEXIS 27386).
In fact, Ms. Torres's attorney did file a notice of direct appeal on her behalf but moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). The Court of Appeals granted this motion and, on October 25, 1999, summarily affirmed her conviction. See United States v. Torres. et al.,
199 F.3d 1324 (unpublished decision available at 1999 U.S. App. LEXIS 27386).
Approximately one year later, in papers dated October 23, 2000, Ms. Torres petitioned this court for collateral review of her case. Harkless, who filed no direct appeal, petitioned for collateral relief in papers dated November 1, 2000.
Discussion
Although the government forcefully argues that petitioners' cases are barred on various procedural grounds, the court need not address these issue since it is clear that, even if petitioners could clear these hurdles, they would still not be entitled to the relief demanded since their claims lack merit.
I. Application of Apprendi v. New Jersey to Petitioners' Cases
The court first addresses the Apprendi challenge raised by both petitioners. In Apprendi v. New Jersey, 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 crime and "submitted to a jury, and proved beyond a reasonable doubt." 120 S.Ct. at 2362-63 (emphasis added). Relying on this holding, petitioners submit that their sentences must be vacated because they were calculated with reference to drug quantities not proved beyond a reasonable doubt. In fact, petitioners misread Apprendi and the relevant sentencing statutes and ignore critical parts of the record in their own cases.
The appropriate sentence for a violation of 21 U.S.C. § 846, the federal law prohibiting conspiracies to distribute and possess with intent to distribute any controlled substance, is determined with reference to 21 U.S.C. § 841. That statute provides three different sentencing ranges depending on the type and quantity of drug. In the case of a conspiracy to distribute crack cocaine, a violation involving 50 grams or more of the drug is punishable by a prison term of "not . . . less than 10 years or more than life." 21 U.S.C. § 841(b)(1)(A)(iii). A conspiracy to distribute 5 grams or more of crack is punishable by a prison term of "not . . . less than 5 years and not more than 40 years."
21 U.S.C. § 841(b)(1)(B)(iii). A simple conspiracy to distribute crack without regard to quantity is punishable by a prison term of "not more than 20 years." 21 U.S.C. § 841(b)(1)(C). Since neither petitioner in this case was sentenced to a prison term in excess of the 20-year maximum prescribed in § 841(b)(1)(C), and since their 135-month sentences were the result of a guideline calculation or Rule 11(e)(1)(C) agreement reached independent of any particular statutory minimum, it does not appear that any Apprendi issue is really presented in their cases.
Assuming nevertheless that Apprendi has some applicability to this case, the statements made by petitioners under oath at their guilty pleas more than sufficed to prove beyond a reasonable doubt that the charged conspiracy involved more than 50 grams of crack cocaine, the amount required to increase the maximum possible sentence from 20 years, as provided in § 841(b)(1)(C), to life imprisonment, as provided in § 841(b)(1)(A). Indeed, Ms. Torres and Harkless each admitted that the conspiracy dealt in more than a kilogram of crack, in short, twenty times the amount required to impose a sentence under § 841(b)(1)(A)(iii). The court cites briefly to Ms. Torres's plea:
THE COURT: Did you understand that the purpose of this scheme was to distribute drugs?
DEFENDANT RUTHIE TORRES: Yes.
THE COURT: How did you help in it?
DEFENDANT RUTHIE TORRES: I bagged it.
THE COURT: You bagged what?
DEFENDANT RUTHIE TORRES: Cocaine.
THE COURT: Crack cocaine?
DEFENDANT RUTHIE TORRES: Yes.
. . .
THE COURT: Did you understand that overall, more than a kilogram of crack cocaine was involved?
DEFENDANT RUTHIE TORRES: Yes.
R. Torres Plea Minutes at 48-49. As for Harkless, he stated as follows:
THE COURT: Mr. Harkless, tell me briefly, in your own words, what you did to commit this crime.
DEFENDANT HARKLESS: I used to sell crack cocaine.
THE COURT: Did you sell this as part of the activities of the Torres Organization?
DEFENDANT HARKLESS: Yes.
. . .
THE COURT: Over time, did you or others in the organization deal in over a kilogram of crack?
DEFENDANT HARKLESS: Yes.
Harkless Plea Minutes at 31-32.
There can be no doubt that a defendant's allocution can satisfy the proof requirements of Apprendi. Indeed, the Second Circuit has twice ruled that a defendant's trial stipulation as to drug type or quantity can be enough to trigger the higher penalties provided in 21 U.S.C. § 841(b)(1)(A) (B). See United States v. White, 2001 U.S. App. LEXIS 2128, *18 (2d Cir. Feb. 13, 2001) (defendant stipulates to crack in excess of 20 grams satisfying the requirements of the 5-40 year sentencing range of 21 U.S.C. § 841(b)(1)(B)); United States v. Champion, 234 F.3d 106, 110 n. 3 (2d Cir. 2000) (per curiam) (defendant's stipulation that crime involved more than 2.6 kilograms of heroin, which, like a guilty plea, renders a jury finding of guilt unnecessary, brought his case within the 10-to-life range provided in 21 U.S.C. § 841(b)(1)(A)).
Petitioners nevertheless argue that their allocutions did not admit more than 1.5 kilograms of crack, the amount required by the Sentencing Guidelines to assign them a base offense level of 38. See U.S.S.G. § 2D1.1(a)(3). Since Apprendi, many federal prisoners have conflated (1) that decision's requirement for proof beyond a reasonable doubt of facts that trigger otherwise inapplicable mandatory minimums or higher sentencing maximums with (2) the proof necessary to establish guideline factors relevant to calculation of the appropriate sentencing range regardless of any statutory minimum or maximum. Last month, the Second Circuit Court of Appeals joined its nine sister circuits in ruling thatApprendi does not require a guideline factor "unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum" to be submitted to a jury or proved beyond a reasonable doubt. United States v. Garcia, No. 00-1408, 2001 U.S. App. LEXIS 2425, at *12 (2d Cir. Feb. 20, 2001). Disputes as to such matters are still appropriately resolved by a sentencing judge applying a preponderance of the evidence standard to the proof.
In this case, the 135-month sentence imposed on Ruth Torres was based on the guideline calculation that would apply regardless of whether her case fell within § 841(b)(1)(A)(iii) or § 841(b)(1)(C). Similarly, Harkless's guideline range of 168-210 months would apply regardless of which subpart of § 841(b) related to his conviction. His lower sentence of 135 months was the product of his favorable Rule 11(e)(1)(C) agreement, not a function of either the Sentencing Guidelines or the statute applicable to drug conspiracies.
In sum, neither the law nor the facts support petitioners' claim that their sentences violate the holding in Apprendi v. New Jersey, 530 U.S. 466, or the constitutional right to have the elements of a crime proved beyond a reasonable doubt.
II. Ineffective Assistance of Counsel
Ruth Torres submits that her attorney was constitutionally ineffective in representing her at plea and sentence. Specifically, she claims that counsel promised that her total offense level under the Sentencing Guidelines would be 29 not 33, that she would receive two points credit for a global disposition of the case, and that her final sentence would be 108 months in jail. She submits that these errors and omissions infringed on her right to make a knowing and intelligent choice whether to plead guilty or go to trial.
A prisoner asserting a claim of ineffective assistance of counsel carries a heavy burden. She must demonstrate 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. Trzaska, 111 F.3d 1019, 1029 (2d Cir. 1997). A reviewing court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound [legal] strategy.'" Strickland v. Washington, 466 U.S. at 689 (quotingMichel v. Louisiana, 350 U.S. 91, 101(1955)). Paramount to the court's consideration of any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." 466 U.S. at 686. Ms. Torres has failed to satisfy the strict standards of Strickland.
The record in this case reveals that Ms. Torres's attorney, an experienced and respected member of the bar, did discuss many of the issues about offense levels, global plea credit, and sentencing ranges that petitioner now submits in support of her Sixth Amendment claim, but in a context quite different from that presented by petitioner, namely plea negotiations with the prosecution. In urging leniency for Ms. Torres at sentencing, counsel explained how the government had rebuffed his efforts to negotiate a more favorable 11(e)(1)(C) sentencing range for his client:
When we were asked by the government . . . to submit some kind of a proposal as to what . . . guideline we thought the defendant should be in . . . I submitted a proposal . . . that was a base level of 38, with a no role adjustment. Minus three for pleading guilty, minus two for a safety valve, and minus two for some global consideration for a global plea. That would have brought it to a Level 31. . . . That level would have been 108 months to 135 months. Just under where we are now Unfortunately, the government was not willing to accept that particular proposal. . . . The government's position, obviously, was that a Level 33 was the appropriate . . . sentencing range. . . And I think the point that I'm raising, Judge, is, ultimately, I'm going to ask you to sentence her to the minimum, the minimum of this Level 33, which would have been the maximum of that Level 31.
R. Torres Sentencing Minutes at 6-7. The prosecutor did not challenge this account. Moreover, Ms. Torres, who was present during the argument, and who subsequently spoke before sentence was imposed, never contradicted these representations. Neither did she assert, as she does now, that she had been promised a 108-month sentence. Thus, the uncontroverted evidence before this court indicates that any efforts made by counsel to calculate an offense level for his client lower than 33, or to ascribe credit to her for a global plea, or to bring the low-end of her guideline range down to 108 months, were part of hard-fought but ultimately unsuccessful negotiations with the prosecution over the 11 (e)(1)(C) agreement, not promises to Ms. Torres on which she relied in deciding to plead guilty.
Indeed, the plea minutes confirm that Ms. Torres well understood that the agreement in her case provided for a term of 135-168 months' incarceration and not anything less. Specifically, Ms. Torres was present when this court advised her co-defendant, Evelyn Maisonet that her 11(e)(1)(C) agreement contemplated a prison sentence between 87-108 months. R. Torres Plea Minutes at 35. Moments later, the court highlighted for Ms. Torres the "difference" between her situation and that of Ms. Maisonet: "the government is estimating a higher guideline range for you. Your plea agreement provides for a sentencing range of 135 to 168 months in jail." Id. at 37. Ms. Torres stated that she understood. Id. Indeed, she confirmed that she had carefully read her plea agreement and discussed it with her lawyer, and was satisfied that she fully understood its terms. Id. at 28. When the court emphasized that if sentence were imposed within the agreed-upon range, petitioner "would have no right to appeal this conviction or . . . sentence," Ms. Torres stated that she understood that limitation. Id. at 26.
Further belying Ms. Torres's claim that counsel promised her a more lenient sentence were her clear negative responses to questions that specifically probed this subject:
THE COURT: Other than the agreement with the government . . . indicating that if I were to sentence you to anything more than 168 months in jail, you could ask for your plea back, has anyone made any other promise to you about sentencing?
DEFENDANT RUTHIE TORRES: No.
THE COURT: Has anyone made any promise to you about the specific sentence that the Court will pick within your range?
DEFENDANT RUTHIE TORRES: No.
Id. at 47-48. Such "[s]olemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74(1977). Ms. Torres has adduced nothing to undercut this presumption.
Petitioner's claim of ineffective assistance of counsel is denied as without merit.
Conclusion
For the reasons stated, this court finds no merit in Ruth Torres's claim that she was sentenced in violation of her constitutional right to have all elements of her crime proved beyond a reasonable doubt as discussed in the recent Supreme Court decision, Apprendi v. New Jersey, 530 U.S. 466. Similarly, the court finds Ms. Torres's claim that she was denied effective assistance of counsel at her plea and sentencing without merit. The court hereby denies her § 2255 petition as well as a certificate of appealability. The Clerk of the Court is to docket and file a copy of this Memorandum and Order in Civil Case No. 00-6542 and mark that case closed.
As this court was finalizing this Memorandum and Order, it received from Ms. Torres an application to amend her petition to add further unspecified claims. Since Ms. Torres has not identified these claims, and since this court is of the view that its original briefing schedule provided petitioner with ample time to present all claims, this court declines to delay issuance of this decision while the parties brief additional points. The motion to amend is denied.
For the same reasons that pertain to Ms. Torres, this court rejects Jose Harkless's Apprendi challenge to the sentence imposed in his case. His § 2255 petition is also denied as is a certificate of appealability. The Clerk of the Court is to docket and file a copy of this Memorandum and Order in Civil Case No. 00-6667 and mark that case closed.
SO ORDERED.