Opinion
Criminal Action No. 97-145, Section "L" (4)
June 27, 2001
ORDER AND REASONS
Before the Court is petitioner Richard Pena's motion to vacate, set aside, or correct sentence pursuant to Title 28, United States Code, Section 2255 and amended motion to vacate, set-aside or correct sentence pursuant to Federal Rule of Civil Procedure 15(A). For the following reasons, petitioner's motion and amended motion are DENIED and his claims for habeas corpus relief are DENIED WITH PREJUDICE.
I. BACKGROUND
On April 17, 1997, petitioner Richard Pena was arrested in Diamondhead, Mississippi for various drug trafficking offenses. A grand jury returned a fourteen-count third superseding indictment against Pena on July 17, 1998 charging him with one count of engaging in a continuing criminal enterprise, two counts of conspiracy to possess controlled substances with the intent to distribute, six counts of murder, two counts of conspiracy to commit murder, one count of using a telephone to facilitate the commission of a drug trafficking offense, and one count of conspiring to launder money.
Pena pled guilty to all counts on January 14, 1999 pursuant to a plea agreement with the government. According to the plea agreement, the government recommended a life sentence without the possibility of release and agreed to withdraw its notice of intention to seek the death penalty. Pena agreed not to contest his sentence on direct appeal or in a post-conviction proceeding unless he received a sentence greater than permitted by statute or in excess of the appropriate sentencing guidelines.
On March 11, 1999, the Court sentenced Pena to imprisonment for life without the possibility of release and fined him $2,500,000. The government dismissed its notice to seek the death penalty, and the Court advised Pena that he had a right to appeal his sentence to the extent he had not already waived that right.
Pena filed a motion to vacate, set-aside or correct sentence pursuant to 28 U.S.C. § 2255 on March 20, 2000 and an amended motion to vacate, set-aside or correct sentence pursuant to Federal Rule of Civil Procedure 15(A) on July 10, 2000. The government filed its responses on July 5, 2000 and April 5, 2001, respectively.
II. ANALYSIS
Pena contends that his sentence should be vacated on the basis of several claims of constitutional violations. In his first petition, Pena argues that his constitutional rights were violated when: (1) the government taped conversations between Pena and his defense investigator William Gassen; (2) the government intruded into his attorney-client relationship; and, (3) his counsel, Laurie White, allegedly coerced him into accepting a plea agreement. In his second petition, Pena elaborates on his claim that he did not voluntarily plead guilty and explains that he received ineffective assistance of counsel in violation of the Sixth Amendment because his counsel coerced his plea, acted with a conflict of interest, and rendered deficient representation.
A. Scope of Review
The Court may only consider granting relief under 28 U.S.C. § 2255 for a "transgression of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). "A collateral challenge may not do service for an appeal." United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991). "Nonconstitutional claims that could have been raised on direct appeal, but were not, may not be asserted in a collateral proceeding." Vaughn, 955 F.2d at 368.
Pena elected to restrict the scope of the court's collateral review further by signing a plea agreement with the government. Pursuant to the plea agreement, Pena reserved "the right to withdraw his guilty plea as to any of Counts 6 through 13 for which he is later prosecuted by state authorities seeking the death penalty." Plea Agreement at 2. Notwithstanding this exception, Pena "expressly waive[d] the right to appeal his sentence on any ground, including but not limited to any appeal right conferred by Title 18, United States Code, Section 3742 . . . and further agree[d] not to contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under Title 28, United States Code, Section 2255." Id. Therefore, the plea agreement signed by Pena precludes direct attacks upon his sentence. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).
Pena, however, may challenge his sentence on the basis that he did not give his plea knowingly or voluntarily and that he did not receive the effective assistance of counsel. See id.
On this basis, he argues that his counsel coerced him into pleading guilty and represented him under a conflict of interest.
B. Knowing and Voluntary Plea
The record reflects that Pena offered his guilty plea both knowingly and voluntarily. While answering questions under oath at his rearraignment, Pena explained that he understood the nature of the proceedings, that he had sufficient time to discuss his case with his counsel, and that he was satisfied with their services. Rearr. Tr. at 4-5. He acknowledged his written plea agreement with the government and explained that it accurately reflected the agreement and his understanding of it. See id. at 19. Additionally, Pena indicated that no one had threatened or forced him to plead guilty. See id. at 20; See Brown v. Jernigan, 622 F.2d 914, 916 (5th Cir. 1980) (finding that a guilty plea made to avoid a death sentence does not make the plea involuntary). He also agreed with the representation of his criminal activity as summarized in a twenty-three page factual basis. See id. at 20-21. Therefore, the record illustrates that Pena pleaded guilty knowingly and voluntarily.
Pena further expressed his knowing and voluntary intent to plead guilty according to the terms of the plea agreement in a hand-written note to his counsel Ron Rakosky. In the signed note, Pena states, "I have told my lawyer, Mr. Rakosky that I am willing to `plea guilty' to all the charges against me, one condition that I do not get the death penalty. I have told my lawyer to try to make this agreement with the government. I understand that if I plea guilty in this case I would get a life sentence." Govt.'s Answer to Def.'s Amend. Pet. at Ex. 1. The record demonstrates, therefore, that Pena recorded his desire to plead guilty pursuant to the terms of the plea agreement prior to his rearraignment and then affirmed his intention to plead guilty and accept the plea agreement at his rearraignment. Accordingly, the Court finds that Pena provided a knowingly and voluntary guilty plea.
B. Effective Assistance of Counsel
Pena also fails to demonstrate that he received ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, Pena must satisfy the requirements of Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the United States Supreme Court established a two-prong test for evaluating claims of ineffective assistance of counsel. A convicted defendant seeking relief must first demonstrate that counsel's performance was deficient and second show that the deficient performance prejudiced the defense. See id. If Pena fails to establish either deficient performance or actual prejudice, the Court may dispose of the claim without addressing the other prong. Id. at 697.
Under the deficient performance prong of the Strickland test, "it is necessary to judge . . . counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Lockhart v. Fretwell, 506 U.S. 364 (1993) (citing Strickland, 466 U.S. at 690). "An attorney's performance, which enjoys a strong presumption of adequacy, is deficient if it is objectively unreasonable." United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995), cert. denied, 516 U.S. 1165 (1996) (quoting United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995)). The petitioner must prove that the conduct of trial counsel fell below the constitutional minimum guaranteed by the Sixth Amendment. United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994). Analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. Strickland, 466 U.S. at 688-89. Petitioner "carries the burden of proof . . . and must overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance." Crockett v. McCotter, 796 F.2d 787, 791 (5 Cir. 1986) (citations omitted), cert. denied, 479 U.S. 1021 (1986).
Pena alleges that he received ineffective assistance of counsel because his attorneys acted under a conflict of interest and pressured him into pleading guilty. Specifically, he claims that his attorney, Laurie White, had a conflict of interest because she represented Pena's wife in their divorce, she was associated with attorney Frank DeSalvo, and she engaged in a "quasi-sexual" relationship with Pena. Moreover, Pena claims that his additional counsel, Ron Rakosky acted improperly in preparing him to plead. Finally, Pena argues that his attorney-client privilege was violated when the government recorded his conversations with defense investigator William Gassen.
The Court finds that the actions of White do not rise to the level of deficiency required by Strickland because Pena fails to demonstrate "an actual conflict of interest adversely affect[ing] his lawyer's performance." Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980). First, Pena mistakenly suggests that White represented his former wife in their divorce. The judgment of divorce entered in the 24k" Judicial District Court for the Parish of Jefferson, Louisiana lists Peter Barbee rather than White as counsel for Amy St. Pierre Pena. See Govt.'s Answer to Def.'s Mot. to Expand Record, Ex. B. White, therefore, could not have an actual conflict of interest on this basis.
Second, no evidence supports Pena's claims that White acted under an actual conflict of interest because of her association with Frank DeSalvo. At a Garcia hearing on March 16, 1998, the Court explained to Pena his right to effective assistance of counsel including the right to conflict free representation. Tr. at 6. The Court informed Pena of White's possible conflict of interest because of her relationship with DeSalvo and the potential that he might be called to testify at trial. See id. at 9-11. Pena responded that he understood the potential conflict of interest and that he still wished to have White represent him. See id. at 13. Pena further stated that no one forced him, threatened him, or intimidated him into selecting White as his counsel and that he did so of his own free will and volition. See id. Pena, therefore, voluntarily chose White to represent him despite appreciating her relationship with DeSalvo. Finally, no actual conflict of interest ever arose because Pena pled guilty and White did not examine DeSalvo at trial.
Third, Pena fails to support his allegation of a compromising "quasi-sexual" relationship with White. While he admits that he never had sexual relations with White, Pena asserts without evidence that he received suggestive cards and photographs from her. In a sworn affidavit, however, White explains that she provided Pena with photographs of her, his wife, and a pet that were prepared for use for mitigation during the penalty phase of a trial. See Govt.'s Answer to Def.'s First Amend. Pet. Ex. D. No evidence, therefore, supports Pena's allegation of an improper relationship with his counsel. Accordingly, petitioner fails to prove that the conduct of White fell below the constitutional minimum guaranteed by the Sixth Amendment.
The representation of Ron Rakosky also does not satisfy the requirements of a claim for ineffective assistance of counsel. Pena contends that he did not trust Rakosky and that Rakosky acted improperly by explaining the rearraignment procedure to him. The Court, however, finds that Rakosky effectively represented Pena. Rakosky assisted Pena in reaching a plea agreement with the government that avoided the possibility of a death sentence. Moreover, Rakosky appropriately reviewed the procedure for pleading guilty with Pena. At rearraignment, Pena stated that he was satisfied with the services of his counsel. See Rearr. Tr. at 4-5. Pena also prepared a written note for Rakosky indicating his intent to plead guilty in accordance with the terms of the plea agreement. Govt.'s Answer to Def.'s Amend. Pet. at Ex. 1. Therefore, Pena fails to show that Rakosky ineffectively represented him.
Pena also was not denied effective assistance of counsel because the government recorded his conversation with defense investigator William Gassen. Pena's discussion with Gassen concerned his plans to escape from jail rather than defense theories and therefore does not qualify for the attorney-client privilege. See United States v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994) (denying attorney-client privilege to conversations concerning the furtherance of criminal activity). The government also obtained Gassen's consent to be taped and screened the taped discussion from government prosecutors. Therefore, Pena did not receive ineffective assistance of counsel because the government recorded his plans for escaping prison.
Although the Court need not address the second prong of the Strickland standard, having already found that counsel did not perform deficiently, the Court will nevertheless address whether Pena was prejudiced by the representation of counsel. To prove prejudice under the Strickland standard, Pena "must show 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 694. The Strickland court defined a reasonable probability as "a probability sufficient to undermine confidence in the outcome." Id. In making a determination as to whether prejudice occurred, courts must review the record to determine the "relative role that the alleged trial errors played in the total context of [the] trial." Crockett, 796 F.2d at 793.
The record reveals that counsel made no errors that prejudiced Pena. Rather, Pena's counsel successfully negotiated a plea agreement with the government by which Pena received life imprisonment rather than a potential death sentence. See Brown, 622 F.2d at 916 (finding that a guilty plea made to avoid a death sentence does not make the plea involuntary). As previously discussed, Pena evidenced his voluntarily and knowing consent to this agreement by his hand-written note to counsel and by his responses to the Court's questions during his rearraignment. Counsel effectively represented him by reaching a plea agreement with the government despite the significant crimes with which he was charged. The Court, therefore, finds that Pena was not prejudiced by the representation of his counsel.
III. CONCLUSION
For the foregoing reasons, petitioner Richard Pena's motion to vacate, set aside, or correct sentence pursuant to Title 28, United States Code, Section 2255 and amended motion to vacate, set-aside or correct sentence pursuant to Federal Rule of Civil Procedure 15(A) are DENIED and his claims for habeas corpus relief are DENIED WITH PREJUDICE.