Opinion
00 Civ. 3325 (BSJ), 98 Cr. 1409 (BSJ)
November 8, 2001
Order Opinion
On January 7, 1999, Petitioner, Maria Luisa Flores De Garcia, was indicted on a single count of conspiring to sell more than five kilograms of cocaine in violation of 21 U.S.C. § 846. On April 21, 1999, Petitioner pleaded guilty, and on August 6, 1999, she was sentenced to 120 months imprisonment in accordance with the statutory minimum term of imprisonment required by 21 U.S.C. § 841(b)(1)(A). Petitioner now moves pursuant to 28 U.S.C. § 2255 to challenge the validity of her plea and sentence. Petitioner claims that she was not competent at the time she pleaded guilty and that her attorney was ineffective for, among other things, failing to argue at sentencing for a downward departure and for adjustments to her Sentencing Guidelines range. Petitioner also claims that her attorney was ineffective for failing to file an appeal despite her request that he do so. For the reasons set forth below, the petition is DENIED.
I. BACKGROUND A. Plea Proceedings
Petitioner's guilty plea was entered pursuant to a written plea agreement. In the plea agreement, the parties stipulated that Petitioner's base offense level was thirty-two pursuant to U.S.S.G. §§ 2D1.1(a)(3) and 2D1.1(c)(4) and that a three-level reduction in offense level was warranted under U.S.S.G. §§ 3E1.1(b)(2) for acceptance of responsibility. The parties further stipulated that Petitioner's criminal history category was II based on Petitioner's prior conviction for importation of cocaine. With a criminal history category of II and an offense level of 29, the plea agreement contained a sentencing range of 97 to 121 months. However, Petitioner's stipulated Sentencing Guidelines range was 120 to 121 months because 21 U.S.C. § 841(b)(1)(A) requires a statutory minimum term of imprisonment of 120 months. The parties also agreed that neither a downward nor upward departure was warranted or would be sought, and Petitioner stipulated that she would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated Sentencing Guidelines range. . . ." (Plea Agreement at 2, 4.)
On April 21, 1999, Petitioner entered an unconditional guilty plea to Count One of the indictment. During the plea proceeding held before this court, Petitioner was represented by attorney Donald Yanella. Mr. Yanella informed the court that the plea agreement had been translated for Petitioner before she executed it. (Plea Tr. at 2.) After Petitioner was placed under oath, the court ensured that she had no problems communicating with the interpreter who had been provided. (Plea Tr. at 3.) When Petitioner informed the court that she had consulted a psychiatrist in prison and was taking medication for her nerves, (Plea Tr. at 3-4, 7), the court followed up with questions to ensure that Petitioner was competent to enter a plea. Petitioner told the court that she had never been treated or hospitalized for mental illness except for the consultation during her imprisonment. (Plea Tr. at 4-5, 7-8.) On three different occasions, Petitioner indicated that she had not taken any medication the night before the hearing, that she felt "fine" and that her mind was clear. (Plea Tr. at 5-6.)
References to "Plea Tr." are to the transcript of Petitioner's plea hearing in this court, which was held on April 21, 1999.
Mr. Yanella also informed the court that he had no doubts that his client was competent to plead guilty. (Plea Tr. at 6.) Petitioner then indicated to the court that she wished to enter a plea of guilty. Petitioner acknowledged that she had discussed her case fully with Mr. Yanella and that she had spoken with him regarding the consequences of entering a guilty plea. (Plea Tr. at 6.) She also indicated that she was satisfied with Mr. Yanella and his representation of her. (Plea Tr. at 6.) On the basis of Petitioner's responses and the court's observation of her demeanor, the court found that she was fully competent to enter a plea. (Plea Tr. at 6.)
Petitioner also informed the court that she had discussed the plea agreement with her attorney and that she fully understood it. (Plea Tr. at 13-14.) The court inquired as to whether Petitioner understood that, because of the statutory minimum prison term, the stipulated sentencing range in the plea agreement was limited to 120 to 121 months, and Petitioner stated that she understood. (Plea Tr. at 14.) Petitioner also acknowledged that she understood that she was "waiving or giving up [her] right to appeal" if sentenced within that range. (Plea Tr. at 15.)
Petitioner then explained her involvement in the conspiracy. She stated that she had "agreed to come to this country, carry some money and through that become involved in a drug transaction." (Plea Tr. at 16.) She admitted that she was going to receive money from the sale of cocaine in New York and transport it to Colombia. (Plea Tr. at 17.) She further admitted that on the day she was arrested she had $9,000 in her possession that was to be used to purchase cocaine. (Plea Tr. at 18.) At the close of the hearing, Petitioner pleaded guilty and her plea was accepted by the court. (Plea Tr. at 23.)
B. Sentencing Proceedings
In advance of Petitioner's sentencing, the Probation Office prepared a Presentence Report ("PSR"). Because the PSR was expedited, it was forwarded to the court and counsel simultaneously on July 13, 1999. (PSR at 13.) The PSR determined that the base offense level was thirty-two, pursuant to U.S.S.G. § 2D1.1(c)(4), because the offense involved between five and fifteen kilograms of cocaine. The PSR also determined that a three-point reduction in offense level was applicable pursuant to U.S.S.G. § 3E1.1. (PSR ¶¶ 18, 24, 27.) Thus, the adjusted offense level was twenty-nine. The PSR calculated that Petitioner had three criminal history points as a result of her 1990 conviction for importing cocaine into the United States, and a resulting criminal history category of II was assigned. (PSR ¶¶ 30-32.) Thus, the Sentencing Guidelines range of 120-121 months calculated by Probation was the same as that contained in the plea agreement signed by Petitioner. (PSR ¶ 56.)
Petitioner's sentencing hearing was held on August 6, 1999. At the hearing, Petitioner acknowledged that she had reviewed the PSR and spoken with Mr. Yanella about it. (Sentencing Tr. at 2.) Neither she nor Mr. Yanella indicated any objections to the PSR at that time. (Sentencing Tr. at 2.) After providing Mr. Yanella and Petitioner opportunities to speak on her behalf, the court sentenced Petitioner to 120 months, which was the lowest sentence Petitioner could receive under the mandatory minimum sentence. Petitioner's attorney indicated that there was no "legal reason why the sentence . . . should not be imposed." (Sentencing Tr. at 8.)
References to "Sentencing Tr." are to the transcript of Petitioner's sentencing hearing in this court, which was held on August 6, 1999.
II. DISCUSSION A. Competence
Petitioner now claims that she was not competent to plead guilty and that her attorney was ineffective for failing to ensure that she was competent to plead. Petitioner alleges that she entered her guilty plea involuntarily because she was unable to understand English, had a "limited educational background," and had been abused. (Petition at 4.) The court rejects the claim in its entirety.
In order to be competent, "the defendant must have (1) sufficient present ability to consult with [her] lawyer with a reasonable degree of rational understanding and (2) a rational as well as factual understanding of the proceedings against [her]." United States v. Morrison, 153 F.3d 34, 46 (2d Cir. 1998) (internal quotations and citations omitted). Moreover, "[i]t is well-established that some degree of mental illness cannot be equated with incompetence. . . ." United State v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986), cert. denied, 479 U.S. 1036 (1987).
As described in some detail above, Petitioner's claims that she was incompetent to plead guilty are flatly contradicted by the answers she gave this court at her plea hearing. Despite Petitioner's claims to the contrary, nothing in the PSR indicates that she had a diminished mental capacity; in fact, the PSR notes that she had seen a psychiatrist weekly and had "made significant progress." (PSR at ¶ 43.) While Petitioner's incarceration and separation from her children was no doubt upsetting to her, her resulting nervousness and depression does not rise to the level of incompetence. Significantly, Petitioner informed this court that she had not taken any medication the night before the plea hearing, and that she felt "fine" and her mind was clear. (Plea Tr. at 5-6.) Moreover, both the plea agreement and the plea hearing were interpreted for Petitioner, and she acknowledged that she had understood her communications with her lawyer regarding the indictment and the plea agreement. (Plea Tr. at 11-14.) Thus, this court reaffirms its finding at the plea hearing that Petitioner was competent to enter a plea of guilty.
B. Ineffective Assistance of Counsel
Petitioner also claims that her counsel was ineffective for failing to ensure that she was competent to plead. She claims that her counsel "had reason to know that [her] mental abilities were in question necessitating an evaluation for competency to enter into a plea agreement." (Petition at 5.) Just as Petitioner's claim of incompetence fails, her derivative claim of ineffective assistance of counsel must fail as well.
In order to prevail on a claim of ineffective assistance of counsel, Petitioner must (1) show that her counsel's performance fell below an "objective standard of reasonableness" under "prevailing norms," and (2) "affirmatively prove prejudice" resulting from counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). By satisfying these two elements, a petitioner can show that "counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687. Under the first prong of Strickland, a conviction will not be overturned where counsel provided "reasonably effective assistance" to the defendant. Id. at 687. Furthermore, a reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." See United States v. Aguire, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689). Affirmative proof of prejudice requires that the petitioner demonstrate "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 446 U.S. at 693-94 (1984).
In Hill v. Lockhart, 474 U.S. 52, 57 (1985), the Supreme Court held that claims of ineffective assistance of counsel arising out of the plea process must be addressed under Strickland's two-pronged standard. The Court emphasized the importance of the prejudice prong of the inquiry, stressing the costs to the "orderly administration of justice" when a facially valid guilty plea is set aside. Id. at 58. In light of those considerations, the Supreme Court held that a defendant seeking to establish ineffective assistance of counsel in connection with a guilty plea must show not only that her counsel rendered objectively unreasonable performance, but also that "there is a reasonable probability that, but for counsel's errors, [s]he would not have pleaded guilty and would have insisted on going to trial." Id. at 57, 59.
As the Supreme Court has noted, the "object of an ineffectiveness claim is not to grade counsel's performance;" therefore, "if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." Id. at 697; see, e.g.,Strouse v. Leonardo, 928 F.2d 548, 556 (2d Cir. 1991) (declining to address alleged deficiencies of counsel given the overwhelming evidence of guilt at trial). The court is particularly mindful of that principle when considering Petitioner's allegation of ineffective assistance regarding competency. Given that Petitioner has failed to set forth facts warranting the conclusion that she was incompetent, failure by counsel to pursue a meritless motion could not have affected the course of her case. Because Petitioner has failed to produce any credible evidence of actual incompetence at the time she pleaded guilty, this court finds that she cannot establish that but for counsel's actions the result of the proceeding would have been different.
Petitioner raises additional allegations of ineffective assistance of counsel with respect to the plea stage of her case. Specifically, she alleges that counsel failed to inform her that her plea agreement might be rejected by the court, which ultimately would determine the Sentencing Guidelines range and sentence. (Petition at 2-3.) She further claims that she "had no idea" that she would receive a ten-years sentence. (Petition at 5.) These allegations can be quickly dispatched, since it is very clear that Petitioner understood all of these things at the plea hearing, where the court inquired about them in depth. Moreover, the plea agreement stated each of those facts in its text, and Petitioner acknowledged that she understood these aspects of the agreement at the plea hearing. (Plea Tr. at 12, 14-45.) Even if the court found that counsel had failed to explain these things to Petitioner, which it explicitly does not, Petitioner could not establish that she was prejudiced in any way. Therefore, Petitioner's claims of ineffective assistance of counsel at the plea stage of her case must all fail.
C. Other Allegations — Waiver
Having concluded that Petitioner was competent to enter her plea, and that she cannot make a successful claim of ineffective assistance of counsel with respect to the entry of her guilty plea, the court now considers her other claims. Petitioner's additional allegations include claims of ineffective assistance at her sentencing hearing and failure of counsel to file a requested appeal. Under her plea agreement, Petitioner not only stipulated that her Sentencing Guidelines range was 120 to 121 months, but she also explicitly waived her right to appeal or to file a motion under § 2255 if her sentence was within that range. Since Petitioner was sentenced to 120 months, she has waived both rights.
In an excess of caution and with the consent of the Government, the court held a hearing on July 27, 2001, taking testimony from Petitioner and Mr. Yanella to determine whether or not Petitioner had asked her attorney to file a notice of appeal. Although not necessary to the court's determination today because the court has found that Petitioner had waived her right to appeal, the court finds that Petitioner did not request Mr. Yanella to file a notice of appeal. The court credits Mr. Yanella's testimony that Petitioner never asked him to file a notice of appeal. (see Hearing Tr. at 7, 10.)
The Second Circuit has repeatedly held that a defendant's waiver of the right to appeal a sentence within an agreed-upon Guidelines range is generally enforceable. See, e.g., United States v. Difeaux, 163 F.3d 725, 728 (2d Cir. 1998). The same analysis applies to a § 2255 motion. When a defendant has knowingly and voluntarily waived her right to litigate her sentence within a stipulated range under § 2255, she may not subsequently challenge that sentence. United States v. Carrasco, 1999 WL 286083, at *2 (N.D. Ill. 1999); cf. United States v. Maher, 108 F.3d 1513, 1531 (2d Cir. 1997) (declining to address the merits of sentencing contentions in light of waiver of the right to appeal in a plea agreement); United States v. Salcido-Contreras, 990 F.2d 51, 52 (2d Cir.) (per curiam), cert. denied, 509 U.S. 931 (1993).
Of course, Petitioner's waiver of her right to litigate under § 2255 may be enforced only if it was knowing and voluntary. Cf. United States v. Ready, 82 F.3d 551, 556-57 (2d Cir. 1986). Here, the Plea Agreement plainly set forth that the stipulated Guidelines Range would be 120 to 121 months, and that Petitioner agreed to forego litigating pursuant to § 2255 if she was sentenced within that range. In addition, this court confirmed that Petitioner had read and signed the agreement, discussed it with her counsel and understood its terms. (Plea Tr. at 13, 14, 16.) The court finds that the remainder of Petitioner's claims are clearly an attempt to circumvent the valid waiver to which she knowingly and voluntarily agreed. As a result, the remainder of the petition is dismissed.
III. CONCLUSION
For the reasons set forth above, Petitioner's motion pursuant to 28 U.S.C. § 2255 is DENIED. The petitioner may not appeal this order to the Court of Appeals unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1). A certificate will be granted "only if the applicant has made a showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). This court finds that Petitioner will not be able to sustain her burden. Thus, this court declines to issue a certificate of appealability. Petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). Should Petitioner seek to appeal in forma pauperis, this court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).