Opinion
CRIMINAL ACTION NO. 99-88 SECTION "R" (3)
April 30, 2002
ORDER AND REASONS
Before the Court is petitioner Broderick Adams' motion to reconsider this Court's dismissal of Adams' petition for writ of habeas corpus. For the reasons set forth below, petitioner's motion for reconsideration is granted and his motion to vacate, set aside, or correct his sentence is denied.
I. Background
The Court dismissed Adams' petition for writ of habeas corpus with prejudice in its order dated March 5, 2002 because the petition was time-barred. See Rec. Doc. 308. Petitioner filed this motion to alter or amend judgment on March 15, 2002.
II. Discussion
A. Rule 59(e)
A district court has considerable discretion to grant or to deny a motion under Rule 59(e). See Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993); Lavespere, 910 F.2d at 173. A court's reconsideration of a prior order is an "extraordinary remedy which should be used only sparingly. See Fields v. Pool Offshore, 1998 WL 43217, at *2 (E.D. La. 1998), aff'd, 182 F.3d 353 (5th Cir. 1999); Bardwell v. George G Sharp, Inc., 1995 WL 517120, at *1 (E.D. La. 1995). The court must "strike the proper balance between the need for finality and the need to render a just decision on the basis of all the facts." Bohlin, 6 F.3d at 355. Courts in this district hold that a moving party must satisfy at least one of the following criteria to prevail on a Rule 59(e) motion: (1) the motion is necessary to correct a manifest error of fact or law; (2) the movant presents newly discovered or previously unavailable evidence; (3) the motion is necessary in order to prevent manifest injustice; and (4) the motion is justified by an intervening change in the controlling law. See Fidelity Deposit Co. v. Omni Bank, 1999 WL 970526, at *3 (E.D. La. 1999); Jupiter v. Bell-South Telecomms., Inc., 1999 WL 796218, at *1 (E.D. La. 1999); Burma Navigation Corp. v. Seahorse, 1998 WL 781587, at *1 (E.D. La. 1998); Fields, 1998 WL 43217, at *2.
Here, Adams presents newly discovered evidence that demonstrates that his petition was timely filed. On November 8, 2000, this Court sentenced him to 120 months imprisonment and five years supervised release. Adams did not appeal his sentence. Therefore, the judgment of conviction became final an November 18, 2000, after the time to file a notice of appeal expired. See United States v. Cuero-Congora, 1997 WL 346722, *1 (E.D. La. 1997). In its original order, the Court found that the petition was untimely filed because it apparently was not filed until December 3, 2001, more than one year after the date on which the judgment of conviction became final. See 28 U.S.C. § 2255 (1). In his motion to reconsider, Adams presents with Court with evidence that he timely filed his petition. See Pet.'s Mot. to Reconsider, Ex. A and B. Indeed, a memorandum from the Clerk of the Court of the United States District Court for the Eastern District of Louisiana indicates that Adams filed his original petition on or before November 15, 2001. See Court's Ex. 1. Accordingly, the Court grants Adams' motion to reconsider its dismissal of his petition for writ of habeas corpus. Therefore, the Court will consider the merits of Adams' petition.
B. Waiver
On March 1, 2000, pursuant to a written plea agreement, Adams pleaded guilty to one count of violating 21 U.S.C. § 846. As part of his plea agreement, Adams waived his right to "contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under 28 U.S.C. § 2255." Rec. Doc. 105, Plea Agreement. Adams reserved the right to challenge his sentence by appeal or in a Section 2255 proceeding under the following circumstances: 1) if the punishment imposed was in excess of the statutory maximum, and 2) if the punishment constituted an upward departure from the applicable guideline. Id.
The plea agreement was submitted in the form of a Bryan letter. See Bryan v. United States, 492 F.2d 775 (5th Cir. 1974).
The charge carries a mandatory minimum sentence of ten years and a maximum sentence of life imprisonment. See 21 U.S.C. § 846.
In the Presentencing Report (PSR), the probation officer stated that Adams and the government stipulated and agreed that Adams' conduct involved more than 50 kilograms but less than 150 kilograms of cocaine hydrochloride. Based on that amount, the probation officer determined that Adams's base offense level was 36. The probation officer recommended a two-point increase for possession of a firearm and a three-point reduction for acceptance of responsibility. The result was a total offense level of 35. Adams' criminal history category was I, which at an offense level 35 resulted in a sentencing range of 168 to 210 months imprisonment, five years supervised release, a fine between $15,000 to $4,000,000, and $100 special assessment. The Court accepted the government's motion for a downward departure based on the substantial assistance Adams rendered to the government and the Court sentenced Adams to 120 months imprisonment. Adams,' sentence was not in excess of the statutory maximum (life), and it did not constitute an upward departure from the applicable sentencing range (168-210 months).
Adams did not file a direct appeal of his sentence or conviction. On November 8, 2001, Adams filed the instant motion for post-conviction relief pursuant 28 U.S.C. § 2255 alleging (1) that his counsel gave him ineffective assistance when he failed to explain the full consequences of the waiver of his appeal rights in his plea agreement, (2) that his counsel gave him ineffective assistance when he failed to raise objections or appeal his sentence and (3) that the district court erred in calculating his sentence under the Sentencing Guidelines.
As noted, petitioner waived his right to challenge his sentence in a post-conviction proceeding if his sentence is below the statutory maximum and within the statutory guidelines. Petitioner challenges both the plea agreement that produced his waiver and his counsel's performance at sentencing on the grounds of ineffective assistance of counsel. This Court agrees with the analysis in United States v. Flunker, 2000 WL 823469 (E.D. La. 2000), which held that when a defendant waives his right to collaterally attack his sentence in his plea agreement, a court may consider claims of ineffectiveness of counsel with respect to the plea agreement itself, but may not consider such claims regarding the attorney's performance at sentencing. See discussion, infra.
The Fifth Circuit has held that a waiver of post-conviction relief such as 28 U.S.C. § 2255 is valid to bar such relief if the waiver is informed and voluntary. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). The defendant must know that he had "a right to appeal his sentence and that he was giving up that right." United States v. portillo, 18 F.3d 290, 292 (5th Cir. 1994) (internal quotation marks and citation omitted). It is the responsibility of the district court "to insure that the defendant fully understands [his) right to appeal and the consequences of waiving that right." United States v. Gonzalez, 259 F.3d 355, 357 (5th Cir. 2001) (quoting United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992)).
Here, the evidence indicates that Adams' waiver was both knowing and voluntary. His signed plea agreement contained an express waiver of his right to appeal or seek relief under Section 2255 if his sentence was within the sentencing guidelines and below the statutory maximum. See Rec. Doc. 105. During the rearraignment, the Court summarized the indictment and noted the mandatory minimums and maximums under the statute. Transcript of Rear. at 5-6. Adams indicated that he understood the ramifications of pleading guilty. The Court advised Adams of the terms of the plea agreement, including the waiver of the rights to challenge his sentence, and determined that he understood the nature of the constitutional rights that he was forfeiting. Id. at 8-9, 12-13. See Frank v. United States, 501 F.2d 173, 175 (5th Cir. 1973).
The rearraignment transcript states in pertinent part:
THE COURT: COUNT ONE OF THE SUPERSEDING INDICTMENT CHARGES THAT BEGINNING AT SOME UNKNOWN TIME BUT ON OR BEFORE NOVEMBER 1996, AND CONTINUING UNTIL ON OR ABOUT APRIL 17, 1997, IN THE EASTERN DISTRICT OF LOUISIANA AND ELSEWHERE YOU KNOWINGLY AND INTENTIONALLY CONSPIRED WITH . . ., AND WITH OTHER PERSONS KNOWN AND UNKNOWN TO THE GRAND JURY, TO POSSESS WITH THE INTENT TO DISTRIBUTE QUANTITIES OF COCAINE HYDROCHLORIDE, WHICH IS A SCHEDULE II NARCOTIC DRUG CONTROLLED SUBSTANCE, IN VIOLATION OF 21 U.S.C. SECTION 841(A)(1), ALL IN VIOLATION OF 21 U.S.C. SECTION 846.
GENTLEMEN, THE CHARGE IN THIS CASE CARRIES A MANDATORY MINIMUM SENTENCE OF TEN YEARS, AND THE MAXIMUM SENTENCE THAT COULD BE IMPOSED ON YOU IN THE EVENT OF CONVICTION ON THIS CHARGE, EITHER ON A PLEA OF GUILTY OR AFTER A TRIAL AT WHICH YOU ARE FOUND GUILTY, IS IMPRISONMENT FOR LIFE AND/OR A FINE OF NOT MORE THAN THE GREATEST OF FOUR MILLION DOLLARS OR THE GREATER OF TWICE THE GROSS GAIN TO YOU OR TWICE THE GROSS LOSS TO ANY VICTIM UNDER 18 UNITED STATES CODE 3571(d), EXCEPT IF YOU COMMITTED THIS VIOLATION AFTER A PRIOR CONVICTION FOR A FELONY DRUG OFFENSE HAS BECOME FINAL THE SENTENCE WOULD BE SUBJECT TO A MANDATORY MINIMUM OF TWENTY YEARS AND A MAXIMUM TERM OF LIFE IMPRISONMENT AND/OR A FINE OF EIGHT MILLION DOLLARS OR THE GREATER OF TWICE THE GROSS GAIN TO YOU OR TWICE THE GROSS LOSS TO ANY VICTIM. IF YOU COMMITTED THIS VIOLATION AFTER TWO OR MORE PRIOR CONVICTIONS FOR A FELONY DRUG OFFENSE HAVE BECOME FINAL, THE SENTENCE WOULD PROVIDE FOR A MANDATORY TERM OF LIFE IMPRISONMENT OR A FINE OF EIGHT MILLION DOLLARS OR THE GREATER OF TWICE THE GROSS GAIN TO YOU OR TWICE THE GROSS LOSS TO ANY VICTIM. Transcript of Rear at 5-6.
The transcript states in pertinent part:
THE COURT: I UNDERSTAND THAT THERE'S A PLEA AGREEMENT IN IN THIS CASE. DO YOU UNDERSTAND THAT IF I DON'T ACCEPT THAT PLEA AGREEMENT I CAN IMPOSE THE MAXIMUM SENTENCE PROVIDED BY LAW AND I WOULD BE REQUIRED TO IMPOSE THE MANDATORY MINIMUM SENTENCE?THE DEFENDANT: YES, MA'AM. . . .
THE COURT: I NOTICE IN THE PLEA AGREEMENT WITH THE GOVERNMENT YOU BOTH HAVE EXPRESSLY WAIVED YOUR RIGHT TO APPEAL ANY SENTENCE I IMPOSE, INCLUDING IN ANY POSTCONVICTION PROCEEDING, EXCEPT YOU RESERVE THE RIGHT TO APPEAL ANY PUNISHMENT IMPOSED IN EXCESS OF THE STATUTORY MAXIMUM AND ANY PUNISHMENT TO THE EXTENT IT CONSTITUTES AN UPWARD DEPARTURE FROM THE GUIDELINE RANGE DEEMED APPLICABLE BY THIS COURT. DO YOU UNDERSTAND THAT YOU WAIVE THE SENTENCING APPEAL TO THAT EXTENT?THE DEFENDANT: YES, MA'AM. . . .
THE COURT: THIS MEANS YOU WAIVE YOUR RIGHT TO APPEAL ANY MISTAKES I MAKE IN CALCULATING THE APPROPRIATE GUIDELINES SENTENCE. DO YOU UNDERSTAND THAT?THE DEFENDANT: YES, MA'AM. . . .
THE COURT: I UNDERSTAND THERE'S A PLEA AGREEMENT IN THIS MATTER. HAS EACH OF YOU GONE OVER THE PLEA AGREEMENT WITH YOUR LAWYERS?THE DEFENDANT: YES, I HAVE. . . .
THE COURT: HAS EACH OF YOU READ THE PLEA AGREEMENT?
THE DEFENDANT: YES, MA'AM
THE COURT: DO YOU UNDERSTAND THE TERMS AND CONDITIONS OF THE PLEA AGREEMENT?
THE DEFENDANT: YES, MA'AM Transcript of Rear. at 8-9, 12-13.
Adams affirmed that he fully understood and voluntarily approved of his plea. "Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1629 (1977). At no time during the rearraignment hearing did petitioner indicate that he did not understand the consequences of his actions, and he presents no evidence to that effect. See Wilkes, 20 F.3d at 653.
B. Ineffective Assistance in Plea Negotiations
Adams nevertheless asserts that his guilty plea was the product of ineffective assistance of counsel. In Wilkes, the Fifth Circuit acknowledged that a waiver of section 2255 relief may not always apply to bar a collateral attack based upon ineffective assistance of counsel. 20 F.3d at 653 ( citing United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979, 113 S.Ct. 2980 (1993)). See also United States v. Walker, 68 F.3d 931, 934 (5th Cir.), cert. denied, 516 U.S. 1165, 116 S.Ct. 1056 (1996) ("[I]neffective assistance of counsel, if shown, is sufficient to establish the cause and prejudice necessary to overcome a procedural default."). Moreover, in United States v. Henderson, 72 F.3d 463 (5th Cir. 1995), the Fifth Circuit permitted a criminal defendant to appeal, despite a waiver in his plea agreement, when he asserted that the appeal waiver was tainted by ineffective assistance of counsel, if Accordingly, the Court will consider whether Adams' guilty plea was invalid because of ineffective assistance of counsel.
To prevail on an ineffectiveness claim, petitioner must demonstrate (1) that his counsel's performance was deficient; and (2) that his counsel's deficient performance prejudiced the outcome of his trial. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Petitioner must satisfy both prongs of the Strickland test in order to succeed. See id. at 687, 104 S.Ct. at 2064. To establish a deficient performance, petitioner must show that his counsel's representation "fell below an objective standard of reasonableness." Jones v. Jones, 163 F.3d 285, 301 (5th Cir. 1998) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). The Court applies a highly deferential standard to the examination of counsel's performance, making every effort to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel's perspective at the time of trial. See id. (quoting Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997)). See also Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838, 844 (1993) (on ineffective assistance claim, courts judge counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct) ( quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066)).
The second, or prejudice, prong of Strickland requires petitioner to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. If Adams fails to establish either deficient performance or actual prejudice, the Court may dispose of the claim without addressing the other prong. Id. at 697, 104 S.Ct. at 2069.
In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366 (1985), the Supreme Court applied the Strickland test to cases involving guilty pleas. In the guilty plea scenario, a petitioner must prove not only that his attorney actually erred, but also that he would not have pleaded guilty but for the error. Armstead v. Scott, 37 F.3d 202, 206 (1994). Under the first prong of the Strickland/Hill test, if a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, "the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Hill, 474 U.S. at 56, 106 S.Ct. at 369 (internal quotes omitted). To meet the prejudice prong of the test, a petitioner must establish that but for his counsel's alleged erroneous advice, he would not have pleaded guilty but would have insisted on going to trial. Id. at 59, 106 S.Ct. at 370; see also Armstead, 37 F.3d at 206 ( citing Carter v. Collins, 918 F.2d 1198, 1200 (5th Cir. 1990)).
Here, Adams contends that his attorney's performance was defective because the attorney failed to explain to Adams the extent of the waiver of his appeal rights in layman's terms. The Constitution requires that "the client be advised not only of his right to appeal, but also of the procedure and time limits involved and of this right to appointed counsel on appeal." United States v. Faubion, 19 F.3d 226, 231 (5th Cir. 1994) ( quoting Qualls v. United States, 774 F.2d 850, 851-52 (7th Cir. 1985)). Adams does not contend that his counsel failed to inform him of is right to appeal or of the procedure and time limits involved, but rather, he contends that his attorney's efforts at explaining the appeal waiver were not effective. When asked by the Court during his rearraignment proceeding, however, Adams never indicated that he did not understand the terms of his plea agreement ( see Rear. Transcript at 8-9, 12-13), which contained clear a waiver of his right to appeal and a waiver of post-conviction relief ( see Rec. Doc. 105), and he offers no evidence to indicate otherwise. See Portillo, 18 F.3d at 292-93 (defendant's appeal waiver upheld when defendant clearly indicates he read and understands terms of plea agreement and raised no question regarding the waiver during plea hearing). Therefore, the Court finds that Adams' claim that his counsel rendered ineffective assistance during his plea negotiations is meritless.
C. ineffective Assistance of Counsel at Sentencing
The Court finds that petitioner's challenge to the effectiveness of his counsel at sentencing is just an effort to end-run the effect of his waiver of section 2255 relief. Although the Fifth circuit in Wilkes determined that a waiver of Section 2255 relief in a plea agreement does not always apply to bar collateral attacks based upon ineffective assistance of counsel, in this case the waiver is effective. See Wilkes, 20 F.3d at 653 (citations omitted). In fact, the Wilkes court enforced the waiver once the court established that the waiver was knowing and voluntary. See id. ("here the appropriateness of the waiver is beyond question"). As correctly pointed out in United States v. Flunker, challenges to counsel's effectiveness at sentencing are not cognizable on collateral attack when a petitioner enters a plea agreement in which he knowingly and voluntarily waived his right to challenge the sentence by way of section 2255 relief, and his guilty plea is not tainted by ineffective assistance of counsel. See 2000 WL 823469 at *5 ("when a defendant waives his right to collaterally attack his sentence, a court may consider claims of ineffectiveness with respect to the plea agreement itself, but may not consider claims of ineffectiveness with respect to his attorney's performance at sentencing."); see also Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000) (waiver of section 2255 relief as to sentence precludes collateral challenge to sentence when petitioner does not challenge the voluntariness of negotiation of waiver or counsel's effectiveness in negotiating the waiver); United States v. Jones, 167 F.3d 1142, 1145 (7th Cir. 1999) ("waivers are enforceable as a general rule; the right to amount a\collateral attack pursuant to § 2255 survives only with respect to those discrete claims which relate directly to the negotiation of the waiver."); United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998) (rejecting petitioner's claim that knowing and voluntary waiver should not bar consideration of appeal because counsel was ineffective at sentencing).
Here, the Court determined that petitioner knowingly and voluntarily waived his right to post-conviction relief ( see discussion, supra at 4-9) and that his guilty plea was not invalid by reason of ineffective assistance of counsel. The Court therefore refuses to consider the merits of Adams' challenge to his counsel's performance at sentencing or the alleged defects in his sentence. Further, Adams' argument that his counsel's assistance was ineffective because his counsel failed to appeal his sentence is unavailing. After a defendant has knowingly and voluntarily waived his right to appeal his sentence, his counsel "is not deficient for, and prejudice does not issue from, failure to raise a legally meritless claim." Wilkes, 20 F.3d at 653 ( quoting Smith v. Puckett, 907 F.2d 581, 585 n. 6 (5th Cir. 1990), cert. denied, 498 U.S. 1033, 111 S.Ct. 694 (1991)).
III. Conclusion
For the foregoing reasons, the Court GRANTS petitioner's motion for reconsideration and DENIES his section 2255 motion to vacate, set aside, or correct the sentence.