Opinion
4:98CR3033
August 16, 2001.
MEMORANDUM AND ORDER
This case is now before me on the defendant's amendment to his Motion to Vacate[,] Set Aside[,] or Correct Sentence Pursuant to 28 U.S.C. § 2255, filings 54, 67. In a previous order, I dismissed three of the defendant's four grounds for relief and afforded him an opportunity to amend his motion. Filing 58; see also filing 65. After reviewing the defendant's amendment, I find that his remaining claims must also be dismissed.
I. Background
This background is taken primarily from my order of November 15, 2000, in which I dismissed three of the defendant's four grounds for relief.
The defendant was arrested on March 20, 1998, in a friend's car outside a Grand Island, Nebraska, motel, shortly after his friend delivered a large quantity of methamphetamine to undercover officers in one of the motel rooms. While investigating the defendant, the police learned that he had been deported on February 28, 1995, and had not obtained permission to reenter the United States. On April 24, 1998, a two-count indictment was filed in the United States District Court for the District of Nebraska, charging the defendant with (1) possessing with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and (2) reentering the United States as a deported alien without first obtaining consent of the United States Attorney General to reapply for admission, in violation of 8 U.S.C. § 1326.
The defendant initially pleaded not guilty to both counts of the indictment but subsequently entered into a plea agreement with the government. Pursuant to this written agreement, the defendant pleaded guilty to the illegal reentry count. After conducting a Rule 11 colloquy with the defendant during a July 22, 1998, change-of-plea hearing, I accepted his guilty plea. I later sentenced the defendant to seventy-seven months imprisonment and three years of supervised release on the illegal reentry count. See filing 31. A $100 special assessment was also imposed, and count one of the indictment was dismissed. Id.
The defendant then appealed his conviction and sentence, raising two issues. See United States v. Martinez-Cruz, 186 F.3d 1102 (8th Cir. 1999). First, he challenged the validity of his guilty plea, and second, he alleged that his trial counsel failed to provide effective assistance. Id. at 1104. With respect to his first claim, the defendant, relying primarily on his inability to speak English, argued that I improperly accepted his guilty plea because it was not knowingly and voluntarily made. Id. In rejecting this claim, the Eighth Circuit concluded that "[n]othing in the record supports Martinez-Cruz's contention that his plea was constitutionally infirm." Id. at 1105. The court then declined to address the merits of the defendant's ineffective assistance of counsel claim, citing the general rule that "ineffective assistance claims are best presented in a motion for post- conviction relief under 28 U.S.C. § 2255." Id. (citation omitted).
The defendant filed his § 2255 motion on August 15, 2000, raising the following four grounds for relief: (1) his sentence was imposed in violation of the Constitution or laws of the United States in that I failed to comply with Federal Rule of Criminal Procedure 11 (hereinafter Rule 11) when accepting his guilty plea; (2) he was denied effective assistance of counsel in that his trial counsel failed to advise him adequately as to the nature of the charges against him and the ramifications of his plea; (3) his sentence is "otherwise subject to collateral review" in that newly discovered evidence reveals inaccurate calculations in the defendant's presentence investigation report with respect to his criminal history; and (4) he was denied effective assistance of counsel at the sentencing stage of his case in that his trial counsel failed to obtain his criminal records to dispute calculations contained in the defendant's presentence investigation report. See filing 54 at 5-6. In response, the government argued that the defendant's motion was without merit and should therefore be summarily denied. See filing 57. In a memorandum and order dated November 15, 2000, I dismissed the defendant's second, third, and fourth grounds for relief. See filing 58 at 11. I also concluded that the defendant had procedurally defaulted his first claim by failing to raise it on direct appeal, but afforded the defendant an opportunity to amend his motion in order to demonstrate cause and prejudice. See id. at 3-5.
On December 11, 2000, the defendant moved to amend his § 2255 motion, alleging the following: (1) that his plea was not made voluntarily and intelligently in that he pleaded guilty to "simple illegal entry" in violation of 8 U.S.C. § 1326(a), as charged in the indictment, but was subject to enhanced statutory penalties for a violation of 8 U.S.C. § 1326(b)(2); and (2) his sentence of seventy-seven months exceeds the statutory maximum two-year penalty prescribed in § 1326(a), in violation of the principles recently announced by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000). See filing 61. I granted the defendant leave to amend, and he filed his amendment on February 5, 2001. See filing 65 (granting leave to amend); filing 67 (entitled "Defendant's Motion to Amend Section 2255 Motion with Incorporated Memorandum in Support Thereof; Declaration of Gustavo Martinez-Cruz"); filing 70 (construing filing 67 as the amendment permitted by filing 65). In this amendment, the defendant generally raises the two additional claims outlined above and also asserts that his appellate counsel was ineffective in failing to argue the Rule 11 violations on direct appeal. See filing 67. According to the defendant, his appellate counsel's error excused the procedural default with respect to his first claim for relief.
II. Standard of Review
Section 2255 of Title 28 of the United States Code provides individuals in federal custody with a means to collaterally attack a sentence imposed after a conviction. A collateral challenge may not, however, "do service for an appeal," and Congress has narrowly limited the grounds for post-conviction attacks. See United States v. Frady, 456 U.S. 152, 165 (1982) (citations omitted); 28 U.S.C. § 2255. Section 2255 specifically sets forth the following grounds for relief: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255 ¶ 1.
A defendant must be afforded an evidentiary hearing on his § 2255 motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . . ." Id. ¶ 2. Accordingly, a defendant's § 2255 claims may be summarily dismissed without a hearing if (1) the defendant's allegations, even if true, would not entitle the defendant to relief, or (2) the defendant's allegations cannot be accepted as true because they are contradicted by the record, are inherently incredible, or are conclusions rather than statements of fact. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995) (citations omitted); see also Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) ("[A] claim may be dismissed without an evidentiary hearing if the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based." (citation omitted)).
III. Analysis
In his amendment, the defendant raises an additional ground for relief based on the United States Supreme Court's decision in Apprendi v. United States, 530 U.S. 466 (2000). In Apprendi, the Court held that with the exception of prior convictions, "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." Apprendi, 530 U.S. at 490. According to the defendant, the principles outlined in Apprendi demonstrate that his seventy-seven month prison term exceeds the statutory maximum sentence for the offense to which he pleaded guilty. The defendant's argument, however, is foreclosed by Eighth Circuit authority. In United States v. Moss, the appellate court concluded that Apprendi presents a new rule of constitutional law that is not of "watershed" magnitude, and, as a result, defendants may not raise Apprendi claims on collateral review. 252 F.3d 993, 997 (8th Cir. 2001) (citing Teague v. Lane, 489 U.S. 288 (1989)); Dukes v. United States, No. 00-1981, 2001 WL 770531, at *1-2 (8th Cir. July 11, 2001). Thus, to the extent the defendant seeks relief based on the principles outlined in Apprendi, his motion will be denied.
As discussed above, the defendant was charged with, and pleaded guilty to, violating 8 U.S.C. § 1326(a), which prohibits an alien who was once deported from returning to the United States without first obtaining special permission from the Attorney General. See filing 1 at 2; filing 31 at 1; 8 U.S.C. § 1326(a). Subsection (a) of § 1326 authorizes a prison term of up to two years. 8 U.S.C. § 1326(a). Subsection (b)(2) authorizes a prison term of up to twenty years for "any alien described in [subsection (a)] . . . whose removal was subsequent to a conviction for commission of an aggravated felony . . . ." Id. § 1326(b)(2). According to the defendant, subsection b defines a separate crime which includes an additional element ( i.e., a prior aggravated felony conviction) that the government must allege and prove in order to trigger the twenty-year maximum sentence. Thus, the defendant contends that since this additional element was not charged in the indictment, § 1326(a) defines the relevant maximum sentence, and his seventy-seven month term of imprisonment exceeded the two-year statutory maximum.
The Moss court also determined that the failure to raise Apprendi claims on direct appeal procedurally bars the assertion of such claims on collateral attack. Moss, 252 F.3d at 1001-03; see Dukes, 2001 WL 770531, at *1-2.
On a related note, the defendant contends that his plea was not made knowingly and intelligently because (1) the indictment charged him with only the "simple offense of illegal entry," as defined in 8 U.S.C. § 1326(a); and (2) I accepted his plea without an adequate factual basis regarding his prior convictions. See filing 61; filing 67 at 7 (asserting that the offense to which the defendant pleaded guilty carried a statutory maximum sentence of two years); see also Fed.R.Crim.P. 11(f) (requiring courts to confirm that accepted guilty pleas have a factual basis before entering judgment on such pleas). According to the defendant:
[The] [d]istrict court accepted [defendant's] plea upon the determination that defendant had understood the nature of the charge, in violation [of] 8 U.S.C. [§] 1326(b)(2). Defendant agreed [to] and entered [a] plea to simple illegal entry as charged in the indictment. Had defendant kn[own] that he would be subject to enhanced penalties for a violation of 8 U.S.C. [§]1326(b)(2), defendant would have requested [that] his plea be withdrawn and that he be tried by [a] jury of his peers for violations of 8 U.S.C. [§] 1326.
Filing 61 ¶ 1. The defendant's argument, however, is based on the premise that § 1326(b)(2) defines a separate crime, as opposed to authorizing an enhanced penalty. It therefore seems to me that the defendant's involuntary-plea claim is merely a variation of his Apprendi claim, which, as discussed above, cannot be raised on collateral review. Thus, to the extent the defendant challenges the voluntariness of his plea based on the principles outlined in Apprendi, his motion will be denied.
The defendant's remaining claim also relates to the voluntariness of his plea. In my previous order, I concluded that I failed to comply with Rule 11 when accepting the defendant's guilty plea, in that I did not personally advise the defendant of (1) the statutory maximum sentence for the illegal reentry charge, or (2) my obligation to consider the guidelines in calculating his sentence. See filing 58 at 4; see also McCarthy v. United States, 394 U.S. 459, 464 (1969) (explaining that "although the procedure embodied in Rule 11 has not been held to be constitutionally mandated, it is designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary"); Martinez-Cruz, 186 F.3d at 1104 ("In seeking to ensure that the district court accepts only knowing, voluntary, and intelligent guilty pleas, Rule 11 . . . directs the court to conduct a colloquy with the defendant." (citation omitted)). Although it appeared that the defendant had procedurally defaulted this involuntary-plea claim, I afforded him the opportunity to amend his motion for relief in order to demonstrate cause for his default and resulting prejudice. See filing 58 at 5; see also United States v. Ward, 55 F.3d 412, 413 (8th Cir. 1995) ("[A] point not properly preserved at trial or on direct appeal cannot be reached in a § 2255 proceeding unless the petitioner can show both cause for the point's not having been previously raised and prejudice from the claimed legal error." (citation omitted)); Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994) ("[R]elief under 28 U.S.C. § 2255 is available to correct errors that could have been raised at trial or on direct appeal if the petitioner shows cause for the default and resulting prejudice." (citation omitted)); Reid v. United States, 976 F.2d 446, 448 (8th Cir. 1992), cert. denied, 507 U.S. 945 (1993) (explaining that the petitioner was barred from bringing a § 2255 action "for unappealed errors to which no contemporaneous objection was made," unless he could demonstrate both cause and prejudice). In attempting to demonstrate cause, the defendant asserts that his appellate counsel erred in failing to raise the Rule 11 violations on direct appeal. As the defendant correctly notes in brief, counsel's errors may constitute cause for a procedural default, provided that such errors rise to the level of constitutionally ineffective assistance of counsel as defined by Strickland v. Washington, 466 U.S. 668 (1984); see McCleskey v. Zant, 499 U.S. 467, 494 (1991) ("Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default." (citation omitted)); see also Estes v. United States, 883 F.2d 645, 648 (8th Cir. 1989) ("A criminal defendant is entitled to effective assistance of counsel on a first appeal as a matter of right." (citing Evitts v. Lucey, 469 U.S. 387, 396 (1985); Bell v. Lockhart, 795 F.2d 655, 657 (8th Cir. 1986)). To establish ineffective assistance of counsel under Strickland, the movant must demonstrate that (1) counsel's representation was deficient in that it "fell below an objective standard of reasonableness," and (2) counsel's deficient performance prejudiced him in that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687, 688, 694. An insufficient showing of prejudice leads to rejection of the ineffective-assistance allegation without inquiry into the adequacy of counsel's performance. See Engelen, 68 F.3d at 241 (citing Strickland, 466 U.S. at 697).
Courts may also "consider a claimed error that could have been raised at trial or on direct appeal if the alleged error was a fundamental miscarriage of justice." Anderson, 25 F.3d at 706 (citation omitted); see also McCleskey v. Zant, 499 U.S. 467, 494 (1991) ("Federal courts retain the authority to issue the writ of habeas corpus in a further, narrow class of cases despite a petitioner's failure to show cause for a procedural default. These are extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime.").
After carefully reviewing the record, I find that the defendant cannot prove counsel's failure to raise the Rule 11 argument was prejudicial, because the error was harmless. Rule 11's harmless error provision is found in subsection h, which provides that "[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded." Fed.R.Crim.P. 11(h); see also McCarthy, 394 U.S. at 463-64 (holding that "a defendant is entitled to plead anew if a United States district court accepts his guilty plea without fully adhering to the procedures provided for in Rule 11"); United States v. Drummond, 903 F.2d 1171, 1173 (8th Cir. 1990), cert. denied, 498 U.S. 1049 (1991) ("The 1983 amendment to Rule 11 eliminated McCarthy's `extreme sanction of automatic reversal' by making `clear that the harmless error rule of Rule 52(a) is applicable to Rule 11.'" (quoting Notes of Advisory Committee on Rules, 1983 Amendment)). As noted above, the defendant first challenges my failure to advise him of the statutory maximum penalty for the illegal reentry charge. According to the defendant, he would not have pleaded guilty had he known he would be subject to a twenty-year prison term. A review of the record, however, reveals that both the Petition to Enter a Plea of Guilty (hereinafter Petition), which is written in both English and Spanish, and the defendant's plea agreement with the government set forth the maximum penalty. See Petition to Enter a Plea of Guilty ¶ 14, filing 18; Plea Agreement ¶ 1, filing 18. The defendant signed both of these documents on July 22, 1998, the day of his change- of-plea hearing. See Petition to Enter a Plea of Guilty at 14, filing 18; Plea Agreement at 3, filing 18. Furthermore, during this hearing, I questioned the defendant regarding his comprehension of the Petition. Transcript of Proceedings at 2-3, filing 39. Counsel explained that he had read the Petition to the defendant in Spanish, and the defendant indicated that he understood the questions in the Petition, that he had read the answers to the questions, and that such answers were true. Id. at 2-4. Thus, despite the defendant's assertions to the contrary, it seems to me that he was, indeed, aware of the maximum term of imprisonment on the illegal reentry charge. See United States v. Young, 927 F.2d 1060, 1062 (8th Cir. 1991), cert. denied, 502 U.S. 943 (1991) (concluding that if there was a Rule 11 violation, it was harmless error where the defendant was "actually aware" of the statutory maximum and minimum sentences in that (1) the indictment and plea agreement advised the defendant of the statutory maximum and minimum sentences; (2) the defendant had a copy of the indictment before him at the plea hearing; (3) the defendant indicated at the hearing that he had read the plea agreement; and (4) the prosecutor advised the defendant during the hearing of the statutory minimum and mandatory sentences); Reid, 976 F.2d at 447 (concluding that a § 2255 petitioner could not demonstrate prejudice to excuse his procedurally defaulted Rule 11 claim, based on the court's failure to inform him, inter alia, of the mandatory minimum and maximum penalties, where the district court had found that "[the defendant] was aware of the mandatory sentence because he had read the indictment, read and signed the plea agreement, and read and been given the chance to contest the presentence report, all of which advised of the five year sentence"). It also seems to me that, given the substantial evidence on the illegal re-entry count, as well as the likelihood of a higher sentence upon conviction, the defendant would have still pleaded guilty, even if I had personally advised him of the twenty-year maximum sentence. See, e.g., filing 58 at 8 (discussing the evidence of guilt and the likelihood of a sentence higher than seventy-seven months had the defendant proceeded to trial); see also United States v. Prado, 204 F.3d 843, 846 (8th Cir. 2000), cert. denied, 121 S.Ct. 638 (2000) (concluding that "given [the petitioner's] knowledge that he faced five years supervised release, and the government's evidence that negated his defense, being told of the precise effect of violating supervised release would not have changed [the petitioner's] mind about pleading guilty." (citations omitted)). Finally, although I did not directly advise the defendant of my obligation to consider any applicable guidelines in calculating his sentence, I fail to see how this error "affect[ed] substantial rights." Fed.R.Crim.P. 11(h); see Petition to Enter a Plea of Guilty ¶ 21, filing 18 (discussing the court's obligation to consider the sentencing guidelines); Transcript of Proceedings at 2-4, filing 39 (indicating that he understood the questions in the Petition and that the answers in the Petition were true); see also Prado, 204 F.3d at 846 (finding harmless error where the defendant failed to show that he would not have pleaded guilty, but for the district court's failure to advise him of its obligation to consider the sentencing guidelines). I therefore am not convinced that the result of the defendant's direct appeal would have been different, had his appellate counsel raised the Rule 11 violations. See Strickland, 466 U.S. at 694 (requiring movants, in demonstrating prejudice, to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"). Because the defendant cannot demonstrate that he was prejudiced by his appellate counsel's alleged errors, his attempt to excuse the procedural default must fail. See Rogers v. United States, 1 F.3d 697, 700 (8th Cir. 1993) (recognizing that where the Rule 11 error was harmless, "counsel cannot have been ineffective for failure to raise it on appeal"). Accordingly, the defendant's first claim for relief will be dismissed.
In United States v. Timmreck, 441 U.S. 780 (1979), the Supreme Court recognized that a formal violation of Rule 11 is cognizable on collateral attack only if it creates: (1) an error that is jurisdictional or constitutional; (2) a defect that results in a "miscarriage of justice"; (3) an omission inconsistent with the "rudimentary demands of fair procedure"; or (4) "exceptional circumstances where the need for the remedy afforded the writ of habeas corpus is apparent." Timmreck, 441 U.S. at 783-84 (quoting Hill v. United States, 368 U.S. 424 (1962)); see Harvey v. United States, 850 F.2d 388, 394-95 (8th Cir. 1988); Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993). Although the defendant in this case raises his Rule 11 claim in a collateral proceeding, I did not apply the Timmreck standard in light of the defendant's ineffective-assistance allegations regarding his appellate counsel. Instead, in considering whether the defendant's ineffective-assistance-of- counsel claim constitutes cause for excusing his procedural default, I have analyzed whether the Eighth Circuit, on direct appeal, would have concluded that, based on the Rule 11 violations, the defendant was entitled to plead anew. See Strickland, 466 U.S. at 694.
IT IS ORDERED that with respect to the Motion to Vacate[,] Set Aside[,] or Correct Sentence Pursuant to 28 U.S.C. § 2255, filing 54, as amended by the Defendant's Motion to Amend Section 2255 Motion with Incorporated Memorandum in Support Thereof, filing 67, the defendant's first ground for relief is dismissed.
JUDGMENT
In accordance with the memorandum and order on the defendant's amendment to his Motion to Vacate[,] Set Aside[,] or Correct Sentence Pursuant to 28 U.S.C. § 2255:
IT IS ORDERED that judgment be entered for the plaintiff and against the defendant.
As the defendant recognizes in his brief, however, the United States Supreme Court has already considered, and rejected, arguments similar to those he now raises. In Almendarez-Torres v. United States, the Court found that § 1326(b)(2) "does not define a separate crime"; rather, "[it] is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist." 523 U.S. 224, 226 (1998). As a result, the Court concluded that "neither the statute nor the Constitution requires the Government to charge the factor that it mentions, an earlier conviction, in the indictment." Id. at 226-27. In an attempt to avoid the effects of this decision, the defendant argues that the Apprendi Court "limited the holding of Alemendarez-Torres [sic] so that it only applies to cases in which a defendant admits his or her prior convictions, and announced its readiness to overrule Alemendarez-Torres [sic] entirely." See Defendant's Memorandum of Law in Support of Motion to Amend § 2255 Motion; Proof of Service at 3. The Eighth Circuit, however, has concluded otherwise. See United States v. Maynie, Nos. 00-1264, 00-1269, 00-1271, 2001 WL 856142, at *7 (8th Cir. July 30, 2001); United States v. Raya-Ramirez, 244 F.3d 976, 977 (8th Cir. 2001), cert. filed No. 01-5028 (June 27, 2001); United States v. Aguayo Delgado, 220 F.3d 926, 932 n. 4 (8th Cir. 2000), cert. denied, 121 S.Ct. 600 (2000); see also United States v. Rush, 240 F.3d 729, 731 (8th Cir. 2001) (rejecting argument that prior conviction must be found by a jury because Apprendi expressly excluded prior convictions from its holding); Agostini v. Felton, 521 U.S. 203, 237 (1997) ("`[I]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions'" (citation omitted)). Thus, even if the defendant's Apprendi claim was cognizable on collateral review, such a claim is without merit.