Opinion
No. 99 Crim. 73 (AGS)
September 18, 2002
OPINION ORDER
I. Introduction
Sylvio Hernandez was charged in indictment S4 99 Cr. 73 with conspiracy to possess with intent to distribute heroin, cocaine, and cocaine base in violation of 21 U.S.C. § 846 and 841(b)(1)(A). On March 11, 2002, Hernandez pleaded guilty to Count 1 of the indictment. In early July 2002, prior to sentencing, Hernandez filed the instant motion pursuant to Fed R. Crim. P. 32(e) to withdraw his plea of guilty. Hernandez alleges that he entered the plea against his will and under pressure from his attorneys. Hernandez also alleges that he is in fact not guilty of conspiracy to distribute at least one kilogram of heroin, but that he conspired to distribute less than 600 grams of heroin. Finally, Hernandez argues that he should have been placed in Criminal History Category I instead of II, because his 1998 Rhode Island conviction was unconstitutional for a variety of reasons, including the fact that his attorney in that case had a conflict of interest. For the reasons set forth below, Hernandez's motion is denied.
II. Factual Background
Sylvio Hernandez was charged in indictment S4 99 Cr. 73 with conspiracy to possess with intent to distribute heroin, cocaine, and cocaine base in violation of 21 U.S.C. § 846 and 841(b)(1)(A). Hernandez was initially represented by attorney Julie Clark. On October 1, the Court received a letter from Hernandez indicating his dissatisfaction with Ms. Clark's performance. On October 3, a hearing was held at which Ms. Clark noted that Hernandez "has indicated to me that he does not believe that I have acted in his best interest in terms of negotiating pleas on [sic] his case and preparing the case for trial." Transcript of October 3, 2001 Hearing ("Oct. 3 Tr."), at 3. Hernandez similarly indicated that he and Ms. Clark had a "communication problem." Id. at 3. Consequently, the Court appointed attorney Michael Hurwitz to replace Ms. Clark. See Order dated October 3, 2001.
In mid-December of 2001, with a trial date scheduled for January 8, 2002, Hernandez again expressed his dissatisfaction with his attorney (now Mr. Hurwitz). Another hearing was held on December 20, 2001, at which Hernandez stated that he wished to replace Mr. Hurwitz because "he has not made a positive contribution to my case. The only thing that he is telling me is to plead guilty to ten years. And I can't plead to ten years." Transcript of December 20, 2001 Hearing ("Dec. 20 Tr."), at 7. Mr. Hurwitz explained that the government had expressed its determination to file predicate felony papers in the event Hernandez wished to proceed to trial. See id. at 3. This would mean that Hernandez's exposure through a plea would be a ten-year minimum sentence; whereas trial would expose him to a twenty-year minimum sentence. See id. at 3-4. Hernandez also stated that the predicate felony was a 1998 Rhode Island conviction (based on a plea of nolo contendere) which suffered from various constitutional infirmities. See id. at 6. In light of Hernandez's concerns, the Court again appointed a new attorney in this case, Larry Krantz. See Order dated December 20, 2001.
On March 11, 2002, Hernandez pleaded guilty to Count 1 of the indictment in the absence of a plea agreement. See Plea Hearing Transcript ("Plea Tr."), at 2. Hernandez was duly sworn and had the assistance of a Spanish-language interpreter. The Court conducted a lengthy plea colloquy with Hernandez to determine whether he was competent to enter a plea. See Plea Tr., at 4-17. The Court concluded that Hernandez "is fully competent and capab[le] of entering an informed plea [. . .]." Id. at 17. During the course of the colloquy, the Court explained to Hernandez that he enjoyed the presumption of innocence and that the government was required to prove his guilt beyond a reasonable doubt. See id. at 7. The Court also reviewed with Hernandez the numerous rights he would be giving up by pleading guilty, including the right to a speedy bench or jury trial, the right to an attorney, the right to cross-examine witnesses, and the right to call witness and testify on his own behalf. See id. at 6-8. Hernandez indicated that he understood these rights but was nonetheless willing to enter a plea of guilty. See Id. at 6-8.
Before Hernandez entered a plea, the Court informed him of the potential sentence he faced:
The Court: Do you understand that upon your plea of guilty to this charge, that is the charge of possessing with intent to distribute heroin, cocaine and cocaine base in violation of Title 21 of the United States code, Sections 846 and 841(b)(1)(A) that the Court has the power to sentence you to a maximum sentence of life imprisonment, a mandatory minimum sentence of ten years imprisonment, a maximum term of supervised release of life, a mandatory minimum term of, five years supervised release, a maximum fine of four million dollars or twice the pecuniary gain that you derived from the offense and a mandatory one hundred dollar special assessment; do you understand the Court has that authority under law?
(Counsel confers with his client) Hernandez (in English): Yes, your Honor.
Plea Tr., at 8-9. The Court also reviewed with Hernandez the March 11, 2002 letter submitted by the government pursuant to the suggestion in U.S. v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991) (" Pimentel letter"). The Court told Hernandez that according to the Pimentel letter, his base offense level was 32 because the offense involved at least one kilogram but less than three kilograms of heroin. The base offense level would then be reduced by three points because of Hernandez's acceptance of responsibility, resulting in a base offense level of 29. See Plea Tr., at 11-12. With respect to criminal history, the Pimentel letter asserted that Hemandez had three criminal history points. One point was due to a previous conviction in Rhode Island for possession of heroin, for which Hernandez was sentenced to eighteen months of probation. See Pimentel letter, at 2; U.S.S.G. § 4A1.1(c). The other two points were due to the fact that the instant offense was committed while Hernandez was on probation for the Rhode Island conviction. See Id. at 2; U.S.S.G. § 4A1.1(d). With an adjusted offense level of 29 and three criminal history points, the guideline sentencing range was 97-121 months, with a statutory mandatory minimum term of imprisonment of 120 months and an applicable fine range of $50,000 to four million dollars. Hernandez stated that the contents of the Pimentel letter had been explained to him but added that, "I would like you to know that I am appealing the Rhode Island case, because there were many violations, both of civil rights and conflicts of interest. I am fighting that." Plea Tr., at 12.
Notwithstanding this proviso, Hernandez reiterated his willingness to plead guilty to Count 1 of the indictment, indicating, however, that while he was charged with distribution of heroin, cocaine, and "crack," he had only been involved with heroin. See Plea Tr., at 13, 15. The Court then asked Hernandez to state in his own words what it was that he had done:
The Court: Mr. Hernandez, if you wish to plead guilty, I'm going to ask you to tell me what it is you say you did that caused you to offer to plead guilty. Your answer to these questions will be on the record and made in the presence of Mr. Krantz, your attorney. I inform you that since you are now under oath, your answers may later be used against you in a prosecution for perjury or making fall [sic] statements if in the view of the prosecutor or the grand jury such statements are believed to be false, do you understand that?
Hernandez: Yes, your Honor.
The Court: Do you still wish to plead guilty to Count 1 of the indictment.
Hernandez: Yes.
The Court: All right, tell me what you did.
Hernandez: Between May of `98 and January of `99, I came to an agreement with Sandra [sic] Ospina and others to distribute over a kilo of heroin but under three kilos. I knew that that was against the law. And that took place in the Bronx.
The Court: By that took place, you mean the agreement with Sandra [sic] Ospina and others, you made that agreement to distribute the heroin in the Bronx?
Hernandez: Yes.
Plea Tr., at 16-17. Based on the foregoing, the Court accepted Hernandez's plea and found that he was "fully competent and capab[le] of entering an informed plea and that his plea [was] voluntary and knowing and [was] supported by an independent basis in fact containing each and every element of the offense charged in Count 1 of the indictment." Id. at 17.
On April 15, 2002, a court hearing was held in response to a letter from Hernandez to the Court in which Hernandez indicated that was having difficulties contacting his attorney, Mr. Krantz, and asked that the Court terminate Mr. Krantz's representation of him. See Transcript of April 15, 2002 Hearing ("Apr. 15 Tr."), at 2. Although the Court offered to assign Hernandez another attorney, Hernandez said he preferred to represent himself. The Court strongly advised Hernandez against representing himself. See Id. at 8, 9, 10, 12. Ultimately, the Court permitted Hernandez to represent himself, but asked Mr. Krantz to remain counsel of record and to advise Hernandez. See Id. at 15. During the April 15 hearing, Hernandez also discussed his earlier plea. He stated that he had pleaded guilty "to an amount of drugs I didn't actually have." Id. at 7. He added "But I had to do it because I had no other options." Id. at 7. Nonetheless, he stated, "I pled guilty and I am not going back on that because I made a decision, a responsible decision about that. But I am a Christian. If it is God's will for me to be in here, that's it. I will be." Id. at 10. The Court then gave Hernandez nearly 90 days to file a pre-sentencing motion. Hernandez indicated that he sought to collaterally attack his earlier Rhode Island conviction because his constitutional rights in that case were violated and because his attorney in that case also represented a codefendant, creating a conflict of interest. See Id. at 16-17.
By a pro se motion dated July 3, 2002, Hernandez seeks to withdraw his guilty plea pursuant to Fed.R.Crim.P. 32(e). See Defendant Sylvio Hernandez's Motion and Memorandum of Law to Withdraw his Guilty Plea ("Motion Brief"). The motion presents two distinct arguments. The first argument made by Hernandez is that he pleaded guilty because attorneys Hurwitz and Krantz pressured him to do so. The second argument he makes is that his prior Rhode Island conviction suffered from an array of Fourth, Fifth, and Sixth Amendment violations. He also alleges that his attorney in the Rhode Island case labored under a conflict of interest. Specifically, Hernandez states that his attorney, Anthony Bucci, was paid by co-defendant Carlos Ruiz and represented both Ruiz and Hernandez. Hernandez states that Bucci manipulated him into pleading nolo contendere while ensuring that the charges were dropped against Ruiz. Hernandez also alleges that Bucci made a variety of false promises to Hernandez, such as promising to have his conviction expunged. See Motion Brief, at 4. Consequently, Hernandez argues, the government had no basis for threatening to file a prior felony information in the event that he opted to go to trial. Moreover, because the Rhode Island conviction was constitutionally defective, he should have been placed in Criminal History Category I instead of II.
In his Motion Brief, Hernandez identifies Michael Hurwitz as "Michael Herring."
III. Legal Standards
A. Pro Se Petitions
It is "well settled that pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read `to raise the strongest arguments that they suggest.'" Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)); cf. United States v. Ben-Shimon, 249 F.3d 98, 103 (2d Cir. 2001). In the instant case, Hernandez's motion appears to have been drafted without significant assistance from an attorney. Consequently, the Court applies the "liberal construction" standard to Hernandez's motion.
B. Motions to Withdraw Guilty Plea
Motions to withdraw a guilty plea are governed by Fed.R.Crim.P. 32(e), which states in relevant part: "If a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." A defendant therefore does not enjoy an unfettered right to withdraw his guilty plea. See United States v. Fernandez-Antonia, 278 F.3d 150, 155 (2d Cir. 2002). In determining whether a "fair and just reason" exists for withdrawal of the plea, a district court should consider: "(1) the time lapse between the plea and the motion; and (2) whether the government would be prejudiced by a withdrawal of the plea." Id. at 155 (citation omitted). The defendant bears the burden of showing that there are valid grounds for relief. See United States v. Maher, 108 F.3d 1513, 1529 (2d Cir. 1997).
With regard to the timing factor, Hernandez announced his desire to file a presentencing motion on April 15, 2002, approximately one month after he entered his guilty plea. This length of time, while not short, is not excessively long. Therefore, the Court determines that this factor is neutral and does not militate for or against granting Hernandez's motion. With regard to the prejudice issue, the government "need not demonstrate prejudice where the defendant fails to show sufficient grounds to justify withdrawal of the plea." Fernandez-Antonia, 278 F.3d at 155 (citation omitted). The threshold issue therefore is whether Hernandez has made a prima facie showing of sufficient grounds to justify withdrawal of the plea.
At the time, however, Hernandez stated that he sought to file a motion for a downward departure, not a motion to withdraw his plea. See Apr. 15 Tr., at 15.
IV. Legal Analysis
A. Standards for Withdrawing a Plea
The Supreme Court has held that a "guilty plea is [not a] trifle, but a `grave and solemn act,' which is `accepted only with care and discernment.'" United States v. Hyde, 520 U.S. 670, 677 (1997). A plea may not be withdrawn "on a lark"—the solemn act of pleading guilty is more than "something akin to a move in a game of chess." Id. at 676, 677. According to Rule 32(e), withdrawal of a guilty plea is not automatic, reflecting society's "strong interest in the finality of guilty pleas." United States v. Maher, 108 F.3d 1513, 1529 (2d Cir. 1997). Permitting defendants to withdraw pleas "not only `undermines confidence in the integrity of our judicial procedures,' but also `increases the volume of judicial work, and delays and impairs the orderly administration of justice.'" Id. at 1529 (quoting United States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989) (per curiam). A "change of heart prompted by [a defendant's] reevaluation of either the Government's case against him or the penalty that might be imposed is not a sufficient reason to permit withdrawal of a plea." Maher, 108 F.3d at 1529 (citation omitted). Nor is a "belated claim of actual innocence." Id. at 1529 (citation omitted).
B. Alleged Attorney Coercion
Hernandez argues that his attorneys pressured him into pleading guilty. He states that attorney Hurwitz "constantly pressured me to plead guilty," and that attorney Krantz tried to "force" Hernandez to plead guilty. Motion Brief, at 1. Specifically, Hernandez alleges that Hurwitz and later Krantz "told me that if I did not plead guilty to the governments [sic] said amount that I would then face twenty years in prison because of the governments [sic] intention to file a predicate felon complaint against me." Id. at 1. Hernandez alleges that the attorneys pressured him to plead to distributing 1 kilogram or more of heroin notwithstanding the fact that his responsibility was for the sale of less than 600 grams of heroin and that pleading to 1 kilogram would "dramatically" increase his exposure at sentencing. See id. at 1.
See supra note 1.
That Hernandez felt pressured is understandable. After all, he faced the difficult dilemma of pleading guilty and receiving a minimum of ten years' imprisonment, or going to trial and risking receiving a minimum of twenty years' imprisonment (pursuant to the government's filing of a prior felony information). As the Second Circuit recently noted:
It is [...] commonplace that a defendant will feel "coerced" in the lay sense of the word by an attorney's recommendation to plead guilty rather than proceed to trial. Such recommendations often come with predictions of almost inevitable conviction at trial followed by a long jail sentence. A feeling of duress is hardly an unusual outcome of such deliberations.United States v. Juncal, 245 F.3d 166, 174 (2d Cir. 2001). Not surprisingly, facing such a bleak choice, many criminal defendants accuse their attorneys of pressuring them to take a plea. However, "defense counsel's blunt rendering of an honest but negative assessment of appellant's chances at trial, combined with advice to enter the plea" does not "constitute improper behavior or coercion that would suffice to invalidate a plea." Juncal, 245 F.3d at 172. Neither Hernandez's motion nor the record generally suggests that Hernandez's attorneys were not advising their client in good faith. Even if his attorneys accepted Hernandez's claim that he was responsible for only 600 grams instead of one kilogram, the best advice may have been for Hernandez to plead guilty to involvement with one kilogram, in light of what they perceived Hernandez's situation at trial to be. The Supreme Court and Second Circuit have both held that the "voluntariness" of a guilty plea is "determined by considering, not whether the defendant's decision reflected a wholly unrestrained will, but rather whether it constituted a deliberate, intelligent choice between available alternatives." Rosado v. Civiletti, 621 F.2d 1179, 1191 (2d Cir. 1980) (citing North Carolina v. Alford, 400 U.S. 25 (1970)).
As noted above, faced with two unpleasant alternatives, many defendants "will feel `coerced' in the lay sense of the word [...]." Juncal, 245 F.3d at 174 (emphasis added). However, merely because a defendant feels coerced in the lay sense does not mean that he has been coerced in the legal sense. According to the Second Circuit, a plea is improperly coerced where it was the product of: (1) "physical force or threat of physical force"; (2) "the improper use of economic power to compel another to submit to the wishes of one who wields it"; (3) "mental coercion" such as being "gripped by fear of the death penalty or hope of leniency" such that a defendant "could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty"; or (4) the defendant's "sheer inability to weigh his options rationally." United States v. Juncal, 245 F.3d 166, 172 (2d Cir. 2001) (citations omitted). None of these factors was at play in the instant case. Hernandez's own words, more than a month after his plea, validate this fact: "I pled guilty and I am not going back on that because I made a decision, a responsible decision about that." Apr. 15 Tr., at 10. Consequently, the Court sees no reason to permit Hernandez to withdraw his plea.
C. Quantity of Heroin
In conjunction with his argument that he only pleaded guilty because his attorneys pressured him to do so, Hernandez alleges that he should be held responsible for approximately 510 grams of heroin, rather than the one kilogram of heroin to which he pleaded guilty. See Motion Brief, at 1; Defendant Sylvio Hernandez's Reply Brief to the Governments [sic] Opposition Motion ("Reply Brief"), at 1. As noted supra, Hernandez stated under oath that "[b]etween May of `98 and January of `99, I came to an agreement with Sandra [sic] Ospina and others to distribute over a kilo of heroin but under three kilos. I knew that that was against the law. And that took place in the Bronx." Plea Tr., at 17. While Hernandez's recitation of the facts at the plea was cursory, he did specifically note that the quantity of heroin was more than one kilogram. However, in his Motion Brief, Hernandez states that his responsibility was for less than 600 grams of heroin rather than the greater-than one kilogram amount he claimed in his plea allocution. In his Reply Brief, Hernandez explains for the first time in detail how he is only responsible for 510 grams of heroin. See Reply Brief, at 1-2. However detailed these claims, however, they are unsupported by evidence. "A Defendant's bald statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea." Hirsch, 239 F.3d at 225. Admissions of guilt at a plea allocution enjoy a "strong presumption of verity." United States v. Hirsch, 239 F.3d 221, 225 (2d Cir. 2001) (citation omitted). This is especially true given the fact that Hernandez felt no compunctions about correcting the Court on what he perceived to be an error in the plea allocution. Thus, when the Court asked Hernandez if he had any questions about the plea or the consequences of pleading guilty, Hernandez openly stated that "Count 1 mentions the distribution of cocaine and crack and I was never involved with that, only with heroin." Plea Tr., at 15. Hernandez is at a loss to explain why he did not mention in the same breath that he was responsible for only 510 grams of heroin rather than one kilogram. In light of the foregoing, Hernandez's original plea stands.
D. Hernandez Cannot Collaterally Attack his State Court Conviction
Hernandez seeks to collaterally attack his 1998 Rhode Island conviction based on his plea of nolo contendere. As noted supra, Hernandez claims that he was deprived of a variety of rights under the Fourth, Fifth, and Sixth Amendments, including his rights under Miranda and Brady. He also claims that his attorney in the Rhode Island case had a conflict of interest because he represented both Hernandez and Carlos Ruiz, Hernandez's co-defendant, who paid the attorney.
The Supreme Court has been explicit in permitting collateral attacks on state court convictions only in the narrowest of circumstances. Specifically, the Court has held that unless the statute under which the defendant is sentenced specifically permits collateral attacks, a state court adjudication may only be attacked when the conviction is obtained in violation of the right to counsel in Gideon v. Wainwright, 372 U.S. 335 (1963). See Custis v. United States, 511 U.S. 485 (1994). While the facts of Custis involved sentence enhancement under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e) ("ACCA"), the Second Circuit has followed the Custis ruling "whether sentence enhancement is imposed pursuant to the ACCA, the Sentencing Guidelines [...], or any other statutory scheme providing for sentence enhancement on the basis of prior felony convictions." United States v. Jones, 27 F.3d 50, 52 (2d Cir. 1994). Virtually all circuit courts have so held. See United States v. Bacon, 94 F.3d 158, 163 n. 5 (4th Cir. 1996) (noting that "[a]t least eight other courts of appeals have extended Custis to Guidelines cases").
In the instant case, Hernandez points to no relevant statute explicitly permitting collateral attacks on state court convictions. It is also clear that Hernandez's allegations of Fourth and Fifth Amendment violations may not be used to collaterally attack his Rhode Island conviction. In his Reply Brief, Hernandez argues that the alleged conflict of interest of the attorney in the Rhode Island case constitutes a Gideon violation. The Court disagrees. The holding in Gideon is limited to a right to counsel, not the right to effective, conflict-free counsel. The Supreme Court has expressly denied the argument that the ineffective assistance of counsel constitutes a violation of Gideon. Thus, in Custis, the petitioner argued that his attorney in an earlier case was ineffective and that his guilty plea was not knowing and intelligent. See Custis, 511 U.S. at 488. This is nearly identical to the claim of Hernandez, who essentially argues that he did not knowingly and intelligently enter a plea of nolo contendere because of his attorney's conflict of interest. However, the Custis court rejected this argument, noting that the failure to appoint counsel is a "unique constitutional defect." Id. at 496. With regard to ineffective assistance of counsel, or the entry of a non-knowing, non-intelligent plea, "[n]one of these alleged constitutional violations rises to the level of a jurisdictional defect resulting from the failure to appoint counsel at all." Id. at 496. Consequently, if counsel is appointed in a state case, collateral attacks on the conviction are prohibited unless the statute under which the defendant is charged specifically authorizes such attacks. Because Hernandez concedes that he did have counsel, albeit one allegedly working under a conflict of interest, he may not collaterally attack his Rhode Island conviction in the context of this case.
The government threatened to file a prior felony information if Hernandez elected to go to trial. Because Hernandez pleaded guilty, it has not done so. If the government had, however, Hernandez could collaterally attack his Rhode Island sentence, because 21 U.S.C. § 851(c) explicitly permits collateral attacks in response to the government's filing of a prior felony information. Cf. Custis v. United States, 511 U.S. 485, 491-92 (1994).
V. Conclusion
In light of the foregoing, Hernandez's motion to withdraw his plea of guilty is DENIED. Hernandez will be sentenced in accordance with his plea.