Opinion
Case No. 01-3029-JWL, 97-20067-11-JWL
May 23, 2001
MEMORANDUM AND ORDER
This matter comes before the court on defendant Edilberto Garcia's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 427). Mr. Garcia alleges that he did not receive effective assistance of counsel in earlier proceedings before this court and that his conviction violates due process because the jury did not find the quantity of drugs involved in the crime beyond a reasonable doubt. After reviewing the record, pleadings and relevant authorities, the court concludes that Mr. Garcia has not alleged facts that, if true, would constitute ineffective assistance of counsel and has not alleged facts that constitute a due process violation under Apprendi v. New Jersey, 530 U.S. 466 (2000). Mr. Garcia, therefore, is not entitled to a hearing on his motion and the motion is denied.
I. Background
On July 23, 1996, Mr. Garcia pled guilty to the crime of conspiracy to possess with the intent to distribute more than one kilogram of methamphetamine, a controlled substance, in violation of 21 U.S.C. § 841 (a)(1) and 21 U.S.C. § 846. The plea agreement noted that Mr. Garcia would be subject to a statutory minimum sentence of ten years. It provided that the government will recommend a sentence adjustment for acceptance of responsibility and will not oppose the defendant's request for an adjustment for his minor role in the offense. The agreement specified that the government will dismiss all other counts in the indictment but that, at the time of sentencing, they will be considered "relevant conduct" in the computation of the total offense level. Finally, the agreement notes that the United States has advised the defendant that all decisions regarding sentencing are in the discretion of the court and that the government has not made promises or representations to the defendant about what sentence might be imposed. At sentencing, Mr. Garcia objected to the court using the total amount of drugs involved in the conspiracy to calculate his base offense level. Mr. Garcia also requested that the court depart downward because his criminal history level was overstated. The objection was overruled, the court declined to depart downward under section 5K2 of the Sentencing Guidelines and Mr. Garcia was sentenced to 151 months imprisonment.
II. Discussion
Mr. Garcia argues in his motion that he was denied effective assistance of counsel and that his conviction violated due process. Mr. Garcia argues that his counsel was ineffective because counsel failed to negotiate a plea agreement where Mr. Garcia would have pled guilty in exchange for the court not considering "relevant conduct" in determining his sentence. Mr. Garcia also argues that his counsel was ineffective because counsel failed to investigate the defendant's prior conviction in the Middle District of Florida, which Mr. Garcia alleges was improperly used to determine that he had a criminal history category II. Finally, Mr. Garcia argues that his conviction violated due process because the indictment did not indicate the quantity of drugs involved.
A. Ineffective assistance of counsel
The Supreme Court decision in Strickland v. Washington requires that a petitioner meet two criteria to be successful on a claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the petitioner must show that his attorney's performance was constitutionally deficient. Id. Second, the petitioner must show that his attorney's deficient performance prejudiced him in some way. Id. In evaluating this two-part inquiry, the Tenth Circuit has warned that "[r]epentance born of a failed trial or sentencing strategy can often be turned against defense counsel. Such criticism is often converted into a challenge asserting inadequate assistance. Thus, the court must look for genuine — rather than perceived — ineffectiveness of counsel." Rogers v. United States, 91 F.3d 1391-92 (10th Cir. 1996).
Under the first Strickland prong, the petitioner must demonstrate that counsel committed "serious errors" in light of "prevailing professional norms," such that the "representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. The Supreme Court advised that this prong mandates "highly deferential" judicial scrutiny of counsel's performance, explaining that courts "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 trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Under the second prong, the petitioner must demonstrate that he was prejudiced by counsel's errors. Strickland, 466 U.S. at 688. If the petitioner has entered a plea of guilty, the petitioner must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty," and would have proceeded to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Section 2255 requires that the court grant a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief" 28 U.S.C. § 2255. The petitioner "bears the burden of alleging facts which, if proved, would entitle him to relief" Hatch, 58 F.3d at 1457. "Moreover, his allegations must be specific and particularized; conclusory allegations will not suffice to warrant a hearing." Id.
1. Failure of counsel to negotiate a plea agreement excluding the use of relevant conduct in determining Mr. Garcia's sentence
Mr. Garcia complains that counsel failed to negotiate a plea agreement whereby Mr. Garcia would plead guilty to the crime of conspiracy to possess with the intent to distribute more than one kilogram of methamphetamine and, in return, the court would not use "relevant conduct" to determine the defendant's offense level. Mr. Garcia argues in his memorandum in support of his motion that counsel should have convinced the government that Mr. Garcia's sentence should not be based upon the total quantity of drugs involved in the conspiracy but upon the amount of drugs associated with the count to which Mr. Garcia pled guilty. Using relevant conduct to determine his offense level, according to Mr. Garcia, would amount to a "complete miscarriage of justice."
Mr. Garcia fails to satisfy the two prongs of the Strickland test. Mr. Garcia does not point to any authority that holds that the failure of counsel to negotiate a different or better plea agreement amounts to "serious errors" in light of "prevailing professional norms" and this court has not found any such authority in its own research. Instead, the failure to negotiate a different plea agreement is more accurately characterized as trial strategy that does not constitute ineffective assistance of counsel. See United States v. Calderon, 163 F.3d 644, 646 (D.C. Cir. 1999) (holding that counsel's decision regarding the details of a plea agreement are "well within the realm of valid strategic decisions of competent counsel."). Even if Mr. Garcia were able to show that counsel committed error, he cannot satisfy the second prong of the Strickland test. To satisfy the second prong, Mr. Garcia must demonstrate that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." See Hill v. Lockhart, 474 U.S. 52, 59 (1985). Mr. Garcia accepted the government's plea offer despite the fact that it did not have a provision limiting the use of relevant conduct in sentencing. The plea agreement specified that while the government will dismiss all other counts in the indictment, at the time of sentencing, they will be considered "relevant conduct" in the computation of the total offense level. At the plea colloquy, the court asked Mr. Garcia if he knew and understood all of the terms of the plea agreement and wanted to enter a plea of guilty. The defendant answered in the affirmative to both questions. The failure of Mr. Garcia's counsel to negotiate a different plea agreement, therefore, does not constitute ineffective assistance of counsel.
Mr. Garcia's claim also fails because he does not point to any evidence that the government would have accepted such a plea offer. See Johnstone v. United States, 1999 WL 672946, *9 (E.D.N.Y. Aug. 25, 1999) ("The failure to pursue immunity, then, does not amount to ineffective assistance where, as here, there is no indication in the record that the government would have been willing to grant it.").
In his reply, Mr. Garcia claims that had his counsel explained the impact of relevant conduct on his sentence that he would not have pled guilty. While the Tenth Circuit has not considered whether such a claim by a petitioner, alone, is sufficient to show a reasonable probability that he would not have pled guilty but for counsel's errors, this court believes that the circuit would reach the same conclusion as other circuits to address the issue and hold that Mr. Garcia's claim, by itself, does not establish a reasonable probability. Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991) (holding that the defendant's claim that he would have accepted a plea offer but for counsel's errors "is self-serving and alone, insufficient to establish that, but for counsel's advice, there is a reasonable probability that he would have accepted the plea."); Diaz v. United States, 930 F.2d 832, 843 (11th Cir. 1991) (holding that the defendant's "after the fact testimony concerning his desire to plead, without more, is insufficient to establish that but for counsel's alleged advice or inaction, he would have accepted the plea offer"); Turner v. Tennessee, 858 F.2d 1201, 1206 (6th Cir. 1988) (finding the defendant's testimony "subjective, self serving, and in the Court's view insufficient to satisfy the Strickland requirement for prejudice."). Mr. Garcia does not point to any independent facts that suggest he would have rejected the plea offer if he understood the implications of relevant conduct. The plea agreement explained that Mr. Garcia would be subject to a statutory minimum sentence often years. Mr. Garcia was actually sentenced to 151 months, or 12 years and 7 months. Thus, Mr. Garcia could only have been unaware of the impact of relevant conduct on his sentence to the extent that his sentence exceeded ten years. By accepting the plea agreement, Mr. Garcia received the benefit of the government recommending a sentence adjustment for acceptance of responsibility, not opposing the defendant's request for an adjustment for his minor role in the offense, dismissing the other counts in the indictment and not opposing the defendant's request for his sentence to run concurrently with his sentence from the Middle District of Florida. The court is not aware of any facts that suggest that Mr. Garcia would have, as he now claims, rejected the plea offer if he knew that his sentence could exceed the mandatory minimum often years by two years and seven months. In addition, Mr. Garcia told the court that he had reviewed the plea agreement with counsel and that he understood all of the terms of the agreement. Mr. Garcia's claim that he did not, in fact, understand all of these terms is not supported by the facts. Mr. Garcia, therefore, has failed to point to evidence that, if true, is sufficient to establish prejudice.
Mr. Garcia has not alleged facts which, if proved, would entitle him to relief The record, pleadings and relevant authorities conclusively show that Mr. Garcia is not entitled to relief based on his allegation that counsel was ineffective for failing to negotiate a different plea agreement. Mr. Garcia, therefore, is not entitled to a hearing on this matter.
2. Failure of counsel to investigate Mr. Garcia's conviction in the Middle District of Florida
Mr. Garcia complains that his counsel failed to investigate a conviction in the Middle District of Florida that was used to determine that Mr. Garcia had a level II criminal history. According to Mr. Garcia, had his counsel investigated the conviction, counsel would have realized that the offense was committed after this offense and that it was not a prior conviction that could be used in calculating Mr. Garcia's criminal history level. Mr. Garcia also alleges that his counsel was ineffective because counsel did not point out to the court that the government committed misconduct by waiting to prosecute Mr. Garcia until he was convicted in the Middle District of Florida.
The Sentencing Guidelines provide that a defendant is assessed criminal history points for a prior sentence of imprisonment. U.S. Sentencing Guidelines Manual § 4A1.1. The Guidelines define a "prior sentence" as "any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense." U.S. Sentencing Guidelines Manual § 4A1.2. According to the presentence investigation report, Mr. Garcia was sentenced in the Middle District of Florida on September 14, 1999 to 46 months imprisonment for the crimes of conspiracy to possess with the intent to distribute methamphetamine and possession with the intent to distribute methamphetamine. Mr. Garcia did not object to this part of his presentence investigation report and does not now claim that it is incorrect. The use of Mr. Garcia's sentence of imprisonment from the Middle District of Florida to determine that he had a level II criminal history, therefore, was proper and counsel was not ineffective for failing to challenge its use.
Mr. Garcia also suggests that his counsel should have argued to the court that the government committed misconduct by waiting to prosecute Mr. Garcia until after he was convicted in the Middle District of Florida. The court construes Mr. Garcia's argument as a claim that the government engaged in sentence manipulation that violated due process and that his counsel should have raised this issue with the court. Mr. Garcia does not allege any facts that support his claim that the government engaged in sentence manipulation; he merely asserts that the government prosecuted him for this crime after his conviction in the Middle District of Florida. Under Tenth Circuit precedent, a remedy for sentence manipulation is only available where there is outrageous governmental conduct. United States v. Lacey, 86 F.3d 956, 963 (10th Cir. 1996). Under this standard, the court asks "whether, considering the totality of the circumstances in any given case, the government's conduct is so shocking, outrageous and intolerable that it offends the universal sense of justice." Id. at 964. Mr. Garcia has not alleged outrageous governmental conduct. Apart from the constraints imposed by the statute of limitations, the timing of a prosecution, much like the decision of whether to prosecute at all, generally lies entirely within the prosecutor's discretion. United States v. Lovasco, 431 U.S. 783, 791-95 (1977); United States v. Marion, 404 U.S. 307, 322-23 (1971). The absence of outrageous conduct by the prosecutor is supported by the petitioner's concession that he fled the jurisdiction. The petitioner does not point to any evidence that disputes the government's claim that it was unable to locate the petitioner until his arrest in Florida. Mr. Garcia, therefore, has failed to demonstrate that counsel committed "serious errors" in light of "prevailing professional norms" in failing to argue sentence manipulation to the court.
The court notes that had the government prosecuted Mr. Garcia in the District of Kansas before his prosecution in the Middle District of Florida, Mr. Garcia would have had a higher criminal history level at his sentencing in the Middle District of Florida.
In his reply, Mr. Garcia admits that he fled but points out that the government "failed to provide solid documentation that Mr. Garcia fled because of the charges at bar."
Mr. Garcia's claim also fails to meet the second prong of the Strickland test. Mr. Garcia cannot demonstrate that there is a reasonable probability that, but for counsel's alleged error, he would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). Mr. Garcia accepted the government's plea offer despite the fact that his counsel did not raise the argument of sentence manipulation with the court. Mr. Garcia conclusively was not prejudiced by his counsel's failure to raise the issue with the court and Mr. Garcia, therefore, is not entitled to a hearing on this matter.
B. Apprendi
Mr. Garcia argues that his conviction violated due process because the indictment did not indicate the quantity of drugs involved in the crime. Mr. Garcia admits that he was convicted and sentenced prior to the Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) but, nonetheless, urges the court to apply the rule announced in Apprendi in a collateral attack on his conviction. According to the Tenth Circuit, while the rule announced in Apprendi is a new rule of constitutional law, the Supreme Court has not yet made the rule retroactive to cases on collateral review. Browning v. United States, 241 F.3d 1262, 1265 (10th Cir. 2001). Consequently, the rule is not available as a basis for Mr. Garcia to challenge his sentence in this motion unless it falls within one of two narrow exceptions set out in Teague v. Lane, 489 U.S. 288, 309 (1989).
Mr. Garcia also complains that the jury was not instructed that Mr. Garcia would be "held responsible for all the drugs involved in all counts of the Indictment for sentencing purposes." Mr. Garcia pled guilty and there was no jury trial.
The first, limited exception is for new rules `forbidding criminal punishment of certain primary conduct [and] rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.' The second, even more circumscribed, exception permits retroactive application of "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding."O'Dell v. Netherland, 521 U.S. 151, 157 (1997). only the second exception might be applicable here. While the Tenth Circuit has not yet ruled on the issue, this court is convinced that the Tenth Circuit would agree with the other circuits that have addressed the issue and conclude that the rule announced in Apprendi is not a watershed rule of criminal law that fits the second exception. United States v. Saunders, 247 F.3d 139, 146-51 (4th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1236-37 (9th Cir. 2000). A vast majority of district courts to address the issue, including Judge Vratil of this court, have also held that the rule does not fit the second Teague exception. See, e.g., United States v. Moss, ___ F. Supp.2d ___, 2001 WL 306177, at *2 (D. Kan. Feb. 16, 2001); Levan v. United States, 128 F. Supp.2d 270, 278 (E.D. Pa. 2001); Klein v. United States, 125 F. Supp.2d 460, 467-68 (D. Wy. 2000). This court agrees with the reasoning of the courts which have held that the rule announced in Apprendi is not a watershed rule of criminal law. "Although the precise contours of this exception may be difficult to discern," the Supreme Court has "usually cited Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), holding that a defendant has the right to be represented by counsel in all criminal trials for serious offenses, to illustrate the type of rule coming within the exception." Saffle v. Parks, 494 U.S. 484, 494 (1990). The rule announced in Apprendi is not comparable to such a fundamental procedural right as the right to counsel. It does not "alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction." Teague, 489 U.S. at 311 (quoting Mackey v. United States, 401 U.S. 667, 692 (1971)). Because this court believes that the Tenth Circuit would hold that the rule does not fit the second Teague exception, Mr. Garcia may not base a collateral challenge to his conviction on the rule.
Even if the Apprendi decision were available to Mr. Garcia to challenge his conviction, the rule is not applicable to the facts of this case. The decision enunciated the following rule of constitutional law: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 2362-63. Although expressly reserving the issue for another day, the Supreme Court strongly suggests that a given fact may not increase the penalty for a crime beyond the prescribed statutory maximum unless it has been alleged in the indictment. Id. While Mr. Garcia pled guilty to a count in the indictment that did not specify the quantity of drugs, that fact can only amount to a violation of due process if the quantity of drugs increased Mr. Garcia's sentence above the statutory maximum. United States v. Reed, 2001 WL 91501, *10 (10th Cir. Feb. 2, 2001); United States v. Keith, 230 F.3d 784 (5th Cir. 2000). The statutory maximum for a violation of section 841(a) when the quantity of the drugs is not specified is 20 years. Mr. Garcia was sentenced to less than 20 years and, therefore, the indictment need not have included the quantity of the drugs and the jury need not have made a finding of the quantity of drugs beyond a reasonable doubt.
IT IS THEREFORE ORDERED BY THE COURT THAT Mr. Garcia's motion to vacate, set aside, or correct his sentence (Doc. 427) is denied.