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denying ineffective assistance claim, noting the various benefits the defendant secured
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01 Civ. 5808 (RWS).
May 16, 2002.
ALEXEI SCHACHT, ESQ., NALVEN SCHACHT, Astoria, NY, Attorney for Petitioner.
CHERYL KRAUSE, AUSA, New York, NY, Attorney for Respondent.
OPINION
Plaintiff Frank Agyekum ("Agyekum"), an incarcerated prisoner, has moved pursuant to 28 U.S.C. § 2255, arguing that the sentence to which he stipulated in his plea agreement should be reduced because his former counsel provided ineffective assistance of counsel.
The motion is denied for the following reasons.
Facts
A. Agyekum's Criminal Conduct
On May 24, 1999, agents of the Drug Enforcement Administration ("DEA") in California provided information to DEA agents in New York about suspected heroin trafficking in the Bronx, New York, by "Frank Jones." Among other things, the California agents advised that two confidential informants acting under the DEA's direction ("CI") had met with a co-conspirator in Los Angeles, California, who instructed them to call "Frank Jones," at a certain telephone number in New York to obtain up to one kilogram of heroin. The California agents further advised that an undercover officer then placed a recorded call to the specific number and spoke with "Frank Jones," who stated that he had the product and was ready to deal.
On May 25, 1999, in another telephone call to the same number by a CI, "Frank Jones" agreed to meet the CI the following day at a prearranged location in New York to negotiate the heroin deal.
In the morning of May 26, 1999, while DEA agents in the Bronx, New York conducted surveillance, a man later identified as appellant Frank Agyekum met with the CI at the prearranged location and agreed to provide the CI with a heroin sample that afternoon. Later that day, Agyekum provided the CI with a sample that tested positive for the presence of heroin.
In additional telephone conversations between the CI and Agyekum in early June 1999, Agyekum and the CI agreed that Agyekum would provide the CI with 500 grams of heroin for $35,000 at a prearranged location on June 9, 1999. On that date, agents conducting surveillance observed Agyekum meet with the CI at the prearranged location and place a telephone call on his cell phone. At that time, agents observed a young man later identified as Agyekum's nephew, Lawrence Agyekum, standing one block away and appearing to receive a call on his cell phone. After that call, Lawrence Agyekum walked towards Frank Agyekum and the CI and engaged in conversation with them. A short time later, the CI called one of the DEA agents and informed him that Lawrence Agyekum was carrying the heroin in his pants. Frank and Lawrence Agyekum were then arrested and approximately 545 grams of heroin were found in Lawrence Agyekum's pants.
The government's evidence also revealed that Agyekum was a manager and leader of the conspiracy, in that he directed his nephew on five separate occasions to participate actively in the ongoing narcotics conspiracy by having him wire money in order to purchase the drugs and to deliver drugs on at least three occasions.
B. Agyekum's Proffers
Between June 17, 1999, and October 1, 1999, Agyekum attended three proffers with the government to explore the possibility of his cooperation, all of which were terminated because of Agyekum's inability to be truthful. In connection with these proffers, as Agyekum acknowledges, he was advised by the prosecutor and the agents that he had to tell the truth, and the prosecutors and agents believed he had lied to them. Despite the admonition to be truthful, the first proffer was aborted within minutes and the second in less than an hour due to Agyekum's unwillingness to answer basic questions truthfully, if at all. In the second proffer, Agyekum acknowledged his role in trafficking more than two kilograms of heroin over the past few years. Again, however, Agyekum continued to provide incomplete and inaccurate information. In the third proffer in October 1999, DEA agents from California who had requested the opportunity to meet with Agyekum to explore the possibility of his cooperation terminated the proffer because of Agyekum's patently false statements.
C. Agyekum's Plea Agreement and Guilty Plea
Having exhausted the possibility of cooperating, Agyekum entered into a plea agreement with the government on October 19, 1999. In the plea agreement, Agyekum stipulated that: (1) his base offense level was 28, pursuant to the United States Sentencing Guidelines (the "Guidelines" or "USSG"), § 2D1.1(c)(7); (2) a two-level enhancement was warranted, pursuant to USSG § 3B1.1(c) because Agyekum was a manager and supervisor of another individual involved in the offense; and (3) his offense level should be reduced by three levels, to 27, pursuant to USSG § 3E11.1(a) and (b)(2) for acceptance of responsibility. As Agyekum had no criminal history, and thus fell within Criminal History Category I, the "Stipulated Guidelines Range" was 70 to 87 month's imprisonment.
Under the plea agreement, Agyekum also agreed that "neither a downward nor an upward departure from the Stipulated Guidelines Range set forth above [was] warranted" and that he would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the Stipulated Guidelines Range."
On October 19, 1999, Agyekum pleaded guilty to the information before Magistrate Judge Ronald L. Ellis. Before accepting Agyekum's guilty plea, Magistrate Judge Ellis conduct a careful and thorough proceeding that complied in all respects with Rule 11 of the Federal Rules of Criminal Procedure.
Magistrate Judge Ellis determined that Agyekum was fully competent to enter into an informed plea. Agyekum confirmed that he "had adequate time to discuss with [his] attorney how [he] wish[ed] to plead" and that he was "satisfied with his attorney." In addition, Agyekum acknowledged that he had "discussed with [his] attorney how the sentencing guidelines may apply to [his] case," and that he understood that the Court would take many factors into account when imposing sentence, and that he understood that until the presentence report was prepared, neither he, nor his attorney, nor the government would be able to determine precisely what range of penalties would apply to his case. Magistrate Judge Ellis then advised Agyekum that the count to which he was pleading guilty carried a minimum term of five years' imprisonment and a maximum term of 40 years' imprisonment, and Agyekum stated that he understood these penalties. Agyekum also acknowledged that he would not be permitted to withdraw his plea even if his sentence was more severe than he expected.
Magistrate Judge Ellis then inquired into Agyekum's understanding of the plea agreement. First, Agyekum confirmed that other than the plea agreement, no promises were made to him by anyone to influence him to plead guilty and specifically that no promises had been made to him by anyone concerning what sentence would be imposed if he pled guilty. Agyekum also twice specifically acknowledged that he understood that the guideline range was 70 to 87 months. He also acknowledged that he had agreed in the plea agreement not to appeal or otherwise litigate any sentence within or below that stipulated guideline range.
Pursuant to Rule 11, Magistrate Judge Ellis informed Agyekum of the rights he would be yielding by entering a plea of guilty and then properly inquired as to the factual basis of the plea. In response to questioning by the Court, Agyekum acknowledged that he was delivering approximately 545 grams of heroin to another person in Manhattan on June 9, 1999, and that he knew what he was doing was wrong. Magistrate Judge Ellis confirmed with Agyekum that he was making this plea voluntarily and made a finding that Agyekum's plea was knowing and voluntary and there was a factual basis for the plea.
D. Presentence Proceedings
In anticipation of sentencing, the United States Probation Office prepared an initial Presentence Investigation Report ("PSR"), dated January 21, 2000, and later, an amended PSR.
In the Initial PSR, the Probation Department did not track the stipulations of the plea agreement and incorrectly assumed that Agyekum was not a manager and supervisor and therefore was not disqualified from "safety valve" consideration under 21 U.S.C. § 3553 (f)(4) and USSG § 5C1.2 (4). The initial PSR further incorrectly assumed that Agyekum had satisfied the other "safety valve" criteria, including that he had "truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan." 18 U.S.C. § 3553 (f)(5) and USSG § 5C1.2 (5). The initial PSR thus concluded that Agyekum warranted a base offense level of 23 and a Sentencing Guidelines Range of 46 to 57 months' imprisonment without imposition of the mandatory 60-month minimum.
On February 15, 2000, in anticipation of sentencing, the Court issued a proposed sentencing opinion, incorporating the erroneous assumptions of the initial PSR.
Upon receipt of this opinion, the government offered Agyekum an opportunity to extend a "safety valve" proffer, to which he declined. Following an exchange of correspondence between the government and defense counsel, defense counsel wrote to the government and the Court on April 4, 2000, endorsing the Probation Department's position in the initial PSR and claiming that Agyekum was not a manager or supervisor, that he qualified for the "safety valve" by "providing information" in the aborted proffers, and that the appropriate Sentencing Guidelines range was 46 to 57 months.
The government then submitted a letter on May 16, 2000, setting forth,inter alia, a detailed explanation of Agyekum's role as a manager and supervisor of his nephew, his stipulation in the plea agreement that he had supervised another, his failure to satisfy the requirement of a "safety valve" proffer, and his resulting ineligibility for the safety valve.
In light of this information, the Probation Department issued an amended PSR. The amended PSR imposed a two-level enhancement for Agyekum's management and supervision of his nephew, resulting in an adjusted offense level of 27 and an applicable Sentencing Guidelines Range of 70 to 87 months. The Probation Department recommended a sentence at the bottom of that range.
As the sentencing proceeded on June 22, 2000, the Court confirmed that Agyekum and his counsel had reviewed the PSR and had no objections. Defense counsel specifically recognized that Agyekum had entered into a plea agreement, indicating that he could not argue with the conclusion of the amended PSR that Agyekum was a manager and supervisor. This Court then adopted the recommendations of the amended PSR, found that Agyekum was a manager and a supervisor imposed a sentence at the bottom of the applicable range, i.e., 70 months' imprisonment with four years' supervised release and a $100 special assessment. The Court also advised Agyekum of his right to appeal and to be represented by counsel free of charge if he could not afford it. Subsequently, the Court also issued an amended sentencing opinion, dated July 12, 2000, which reflected the sentencing imposed at the June 22, 2000 sentencing proceeding.
On October 10, 2000, the offices of Louis R. Rosenthal, Esq., assigned counsel for the defendant on appeal, filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there were no non-frivolous issues to be raised on appeal. The government conducted its own independent review of the record and reached the same conclusion. After its review of the case, the Second Circuit agreed and dismissed the appeal on February 26, 2001.
Agyekum is currently serving his sentence. He filed this motion under Section 2255 on June 26, 2001. The motion was considered fully submitted on January 31, 2002.
Discussion
Agyekum argues that the sentence to which he agreed should be reduced because of ineffective assistance of counsel.
I. Waiver of Right to Appeal Under § 2255
As a preliminary matter, Agyekum waived his right to appeal under § 2255 in his plea agreement. Such waivers have been upheld. E.g., Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001) (enforcing defendant's waiver of collateral attack under § 2255 where defendant knowingly and voluntarily waived right in plea agreement).
However, the Second Circuit has suggested that a defendant's claim of "ineffective assistance of counsel in entering the plea agreement" might "cast doubt on the validity of his waiver" of the right to appeal. United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998) (per curiam); see also United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001) (waiver of appellate rights cannot bar ineffective assistance claim where defendant is claiming that the waiver is the product of ineffective assistance); United States v. DeJesus, 219 F.3d 117, 121-23 (2d Cir. 2000) (dismissing appeal where waiver of right to appeal was held enforceable because knowing and voluntary and defendant did not enter plea agreement due to ineffective assistance of counsel), cert. denied, 121 S.Ct. 502 (2000).
Accordingly, a number of district courts within this Circuit have held that a § 2255 petitioner should not be deemed to have waived the right to collaterally attack his sentence if the ground for the attack is ineffective assistance of counsel. Balbuena v. United States, 104 F. Supp.2d 218, 220 (S.D.N.Y. 2000) see also Ocasio v. United States, 2000 WL 460459, at *3 (S.D.N Y April 18, 2000); Ramirez v. United States, 963 F. Supp. 329, 331-32 (S.D.N.Y. 1997).
In accordance with these cases, the Court holds that Agyekum did not fully waive his right to attack his sentence collaterally pursuant to § 2255. Agyekum is not barred from bringing a § 2255 petition that is based on a claim of ineffective assistance of counsel in connection with the plea negotiations. Whether Agyekum in fact established ineffective assistance of counsel is a separate inquiry.
II. Agyekum Did Not Receive Ineffective Assistance of Counsel
To evaluate a claim that a guilty plea was involuntary or unknowing due to ineffective assistance of counsel, the familiar framework ofStrickland v. Washington, 466 U.S. 668 (1984) is utilized. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985) (applying Strickland in context of guilty pleas); see also United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998) (by "grossly underestimating "defendant's sentencing exposure, defense counsel breached his duty "to advise his client fully on whether a particular plea to a charge appears desirable") (quotingBoria v. Keane, 99 F.3d 492, 396 (2d Cir. 1996)). A defendant must establish that (1) "counsel's representation fell below an objective standard of reasonableness"; and (2) "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." Hill, 474 U.S. at 57-58.
Post-hoc complaints about the strategy or tactics employed by trial counsel, or complaints that trial counsel did not conduct a sufficiently vigorous pretrial investigation, are typically found to be insufficient to satisfy Strickland. E.g., United States v. Simmons, 923 F.2d 934, 956 (2d Cir. 1991) (appellant's displeasure with strategy employed by trial counsel insufficient to establish ineffectiveness); United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987) (fact that appellate counsel would have conducted more vigorous pretrial discovery does not establish ineffectiveness of counsel).
Further, even if a defendant makes out facially plausible allegations of ineffectiveness, a district court has the discretion to rely on a defendant's sworn statements in open court and to hold defendant to them. Blackledge v. Allison, 431 U.S. 63, 74 (1977) ("The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible."); see also United States v. Torres, 129 F.3d 710, 716-717 (2d Cir. 1997) (claims that guilty plea was involuntary because defense counsel coerced plea and plea was entered out of fear that defense counsel was unprepared to go to trial properly rejected where contradicted by his plea allocution); United States v. Gonzales, 970 F.2d 1095, 1099-1101 (2d Cir. 1992) (defendant's allegations about ineffectiveness of his lawyer in relation to guilty plea "merely contradicted [defendant's] earlier statements made under oath at his plea allocution" and therefore did not warrant a hearing).
Agyekum asserts that he expected to receive "a sentence of time served or close to that," and was "shocked" to receive a 70-month sentence because his formal counsel at some unspecified time purportedly advised him that he was likely to receive "a sentence of time served or close to that."
Yet, the express terms of the plea agreement and Agyekum's sworn testimony at his plea allocution directly contradict this claim. The plea agreement provided that the mandatory minimum sentence Agyekum could receive for the offense to which he was pleading guilty was 60 months' imprisonment; and, inter alia, that the stipulated sentencing range was 70 to 87 months. Agyekum does not deny reading, understanding, or signing this document.
Moreover, at his plea allocution, Agyekum acknowledged that he understood the count under which he was charged carried a minimum term of 5 years' imprisonment up to a maximum of 40 years' imprisonment; that he had discussed with his attorney how the sentencing guidelines might apply to his case, and that he had had adequate time to discuss with his attorney how he wished to plead and was satisfied with his attorney. Agyekum proceeded to make clear that he understood that the Guidelines range to which he stipulated in the plea agreement was between 70 and 87 months' imprisonment and that, other than the plea agreement, he had received no promises about his sentence. Magistrate Judge Ellis asked Agyekum twice whether he understood the guidelines range was 70 to 87 months, and Agyekum responded affirmatively both times.
Agyekum did not indicate at any time during the plea allocution that he was unfamiliar with the terms of the plea agreement. Nor did he express surprise or confusion about its central terms, the mandatory minimum sentence, or the stipulated sentencing range of 70 to 87 months.
Where a defendant states in open court and under oath that he understands the terms of the plea agreement and is pleading guilty pursuant to that agreement knowingly and voluntarily, and not based on any undisclosed promises, a district court may properly rely on those statements, despite subsequent disavowals of voluntariness, where the defendant fails to corroborate in any way his post-plea allegations. For instance, Agyekum could have submitted an affidavit from his former counsel confirming that Agyekum had been given advice wholly consistent with his plea allocution, or any such promises the lawyer made in writing.
Even if Agyekum is not estopped from asserting his claims, his counsel did not render ineffective assistance of counsel in advising him to enter into the plea agreement, including the stipulation that Agyekum was a manager and supervisor, which disqualified him from safety valve consideration. The evidence that Agyekum had participated in a narcotics conspiracy and supervised his nephew was overwhelming. Agyekum had been recorded negotiating a drug deal involving a kilogram of heroin on the telephone and was arrested in the act of directing his nephew to deliver approximately 545 grams of heroin to an informant. Moreover, the government developed other evidence, and the defendant acknowledged in proffers, that Agyekum had directed his nephew in narcotics transactions on at least five occasions. In the face of this evidence against Agyekum, it was not objectively unreasonable for defense counsel to stipulate to the drug quantity with which Agyekum and his nephew were arrested and to Agyekum's managerial role.
Agyekum also secured significant concessions by entering the plea agreement. The government agreed (1) to stipulate to the mere 545 grams of heroin with which Agyekum was arrested despite evidence of an agreement to distributed one kilogram of heroin and distribution of additional heroin on other occasions; (2) to file an information charging Agyekum with violation of 21 U.S.C. § 841 (b)(1)(B) instead of 21 U.S.C. § 841 (b)(1)(A); (3) to forgo any sentencing enhancement for Agyekum's false statements; and (4) to agree that Agyekum was entitled to a sentencing reduction for acceptance of responsibility. As a result of these concessions, Agyekum avoided a mandatory minimum sentence of 120 months and a higher Guidelines range that he would have faced in the absence of these concessions. Defense counsel's advice to enter the plea agreement and plead guilty therefore cannot be said to have been objectively unreasonable.
Agyekum also claims ineffectiveness of counsel because his counsel purportedly did not understand the requirements of obtaining safety valve treatment. There is no evidence for this assertion on this record. In any case, the evidence shows that Agyekum was disqualified from the treatment on two different grounds: (1) he was not completely truthful about his involvement, 18 U.S.C. § 3553 (f)(5) and USSG § 5C1.2 (5), and (2) the government had strong evidence that Agyekum was ineligible on the ground of his supervisory role, USSG § 5C1.2 (4). In light of this, counsel's advice to enter the plea agreement was neither objectively unreasonable nor prejudicial.
Agyekum also asserts that he received ineffective assistance of counsel because he might have received a cooperation agreement or a safety-value reduction if his counsel had advised him that he was required to be truthful in proffers. Advising one's client to be untruthful would be objectively unreasonable behavior. However, Agyekum presents no corroborating evidence (although it is unlikely that any affidavit to that effect would be forthcoming). In any case, Agyekum was not prejudiced by this advice or lack thereof. He was told by the prosecutor and agents that he had to tell the truth and that they believed he lied. Agyekum continued nonetheless to make false statements. Further, as discussed above, even if Agyekum were truthful during the proffers, he could not have received safety-value consideration because of his managerial role.
Because Agyekum received effective assistance of counsel in entering into the plea agreement and because he knowingly and voluntarily waived his right to appeal or challenge his sentence under § 2255, the motion is dismissed.
As Agyekum has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see also United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915 (a) that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962)
It is so ordered.