STEVEN D. MERRYDAY, District Judge.
Fajardo's motion to vacate under 28 U.S.C. § 2255 (Doc. 1) challenges the validity of both his conviction for conspiracy to possess with the intent to distribute and distribution of five hundred grams or more of cocaine and his sentence of forty-one months. The motion to vacate contains nine grounds of ineffective assistance of counsel. The United States correctly argues that, as part of a plea agreement, Fajardo waived his right to assert many of the grounds. Response (Doc. 7) The motion to vacate lacks merit.
During the period of the conspiracy charged in count one of the indictment, including during the period from July to September of 2008, Hugo Fajardo was a knowing and willing participant with other persons, including, but not limited to, Caroline Ramos, in a conspiracy to possess with the intent to distribute and to distribute over five hundred grams of cocaine. During the drug trafficking conspiracy, Fajardo would obtain cocaine from other persons and then further distribute the cocaine to other persons, including, but not limited to, Caroline Ramos. During the period from July to September of 2008, Ramos negotiated with a confidential informant (CI) and an undercover (U/C) DEA agent for the purpose of selling cocaine to the CI and U/C agent and distributed cocaine on the following occasions.
On July 30, 2008, Ramos met with the CI and U/C agent at the parking lot of the Ross Department store in Palm Harbor (Pinellas County) and sold approximately 81 grams of powder cocaine to the CI and U/C agent for $2,700.
On August 7, 2008, Ramos again met with the CI and U/C agent at the Ross Department Store parking lot and sold approximately 112 grams of powder cocaine to the CI and U/C agent for $4,000.
On September 18, 2008, Ramos met with the CI and U/C agent at the same location and sold approximately 232 grams of powder cocaine to the CI and U/C agent for $8,100. Ramos was arrested after the deal and after her Miranda warnings voluntarily admitted her involvement in distributing cocaine and agreed to contact one of her cocaine sources, Hugo Fajardo.
On September 18, 2008, Ramos called Hugo Fajardo and requested four ounces of powder cocaine, which Fajardo agreed to provide to Ramos. Law enforcement arrested Fajardo that evening and seized approximately 115 grams of powder cocaine from Fajardo which he (Fajardo) intended to deliver to Ramos.
After his arrest, Fajardo admitted that he obtained cocaine from other persons and that he had supplied Ramos with cocaine in the past.
The parties agree that Fajardo should be held accountable for at least five hundred grams, but less than two kilograms of cocaine for sentencing purposes.
Fajardo claims ineffective assistance of counsel, a difficult claim to sustain. "[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
Strickland requires proof of both deficient performance and consequent prejudice. Strickland, 466 U.S. at 697 ("There is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds."). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." 466 U.S. at 690. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." 466 U.S. at 690.
Fajardo must demonstrate that counsel's error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." 466 U.S. at 691-92. To meet this burden, Fajardo must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694.
Strickland cautions that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." 466 U.S. at 690-91. Fajardo cannot meet his burden merely by showing that the avenue chosen by counsel proved unsuccessful.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. ... [T]he issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (counsel has no duty to raise a frivolous claim).
Although the Strickland standard controls a claim that counsel was ineffective for recommending that a client plead guilty, Hill v. Lockhart, 474 U.S. 52 (1985), Agan v. Singletary, 12 F.3d 1012 (11th Cir. 1994), the quantum of evidence needed to prove both deficient performance and prejudice is different. "[C]ounsel owes a lesser duty to a client who pleads guilty than to one who decided to go to trial, and in the former case counsel need only provide his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between accepting the prosecution's offer and going to trial." Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984). To prove prejudice, "the defendant must show that 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 v. Lockhart, 474 U.S. at 59.
Tollett v. Henderson, 411 U.S. 258, 267 (1973), holds that a guilty plea waives a non-jurisdictional defect:
This waiver of rights precludes most challenges to the conviction. See e.g., United States v. Patti, 337 F.3d 1217, 1320 (11th Cir. 2003) ("Generally, a voluntary, unconditional guilty plea waives all non-jurisdictional defects in the proceedings."), and Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) ("A defendant who enters a plea of guilty waives all non-jurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained."). A guilty plea waives a claim of ineffective assistance of counsel based on a pre-plea event.
Hutchens v. Sec'y, Dep't of Corr., 273 Fed. App'x 777, 778 (11th Cir.), cert. denied, 555 U.S. 857 (2008). Consequently, the entry of a guilty plea waives a claim (other than a jurisdictional challenge), including both a substantive claim and a purported failing of counsel that occurred before entry of the plea. See McMann v. Richardson, 397 U.S. 759, 766 (1970) (holding that a plea waives the right to trial and, therefore, waives the "right to contest the admissibility of any evidence the State might have offered against the defendant").
As a preliminary matter, the grounds for relief are addressed in a sequence different from their order in the motion to vacate.
Caroline Ramos was arrested for selling cocaine to an undercover officer and agreed to reveal her supplier. Ramos arranged for a sale from her daughter's fiancee, Fajardo, who was arrested just before delivering the cocaine to Ramos. Fajardo pleaded guilty pursuant to a plea agreement only one month after he was indicted and immediately cooperated with the police. Relatives of Ramos and his fiancee attacked Fajardo and damaged his car with a baseball bat. This violence forced him to temporarily re-locate.
Fajardo retained Daniel Fernandez, Esq., as his counsel. Fajardo represents that he "has known counsel for a long time and trusted him" and that "counsel has a reputation . . . as someone who always gets his client to cooperate with law enforcement." Reply at 6, 13 and 23 (Doc. 13)
Fajardo alleges that trial counsel rendered ineffective assistance by failing to advise him about every paragraph both in the plea agreement and the pre-sentence report. The claim lacks merit because, at the change of plea hearing, the magistrate judge thoroughly reviewed the plea agreement with Fajardo, who represented that he both had read the agreement and "fully understood" it. Transcript of Change of Plea Hearing at 36 (Doc. 27) Because Daniel Fernandez was not available, his partner, Cynthia Hernandez, represented Fajardo at the change of plea hearing. Hernandez represented that she was "actively involved" in Fajardo's case and not simply "standing in" for Fernandez. Fajardo stated that he had no complaints about his attorneys' representations. Transcript of Change of Plea Hearing at 40 and 29, respectively (Doc. 27) Fajardo understood that the prosecutor had sole discretion whether to recommend a reduced sentence based on "substantial assistance." Transcript of Change of Plea Hearing at 19 (Doc. 27) Fajardo's representations carry great weight. "[T]he representations of the defendant . . . [at the plea proceeding] as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Additionally, a plea waives both known and unknown challenges to the proceedings. Brady v. United States, 397 U.S. 742, 757 (1970) ("A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents . . . a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise."). Grounds two and eight lack merit.
Fajardo alleges that counsel rendered ineffective assistance by (1) failing to challenge the quantity of drugs alleged in the indictment (ground four), (2) failing to challenge the government's failure to call Ramos as a witness at the sentencing to show that he was not responsible for 500 grams of cocaine (ground five), and (3) allowing the prosecutor to base the indictment on Ramos's false testimony. Grounds four and five lack merit because, by agreeing to the drug quantity stated in the plea agreement, Fajardo waived the right to challenge the quantity of the drugs alleged in the indictment. Fajardo represented that he understood that his guilty plea would relieve the United States from having to prove the drug quantity. Transcript of Change of Plea Hearing at 15 (Doc. 27) Ground six lacks merit because the falsity of Ramos's information to the police was revealed at sentencing. Transcript of Sentencing at 8-10 (Doc. 30)
Fajardo alleges that counsel rendered ineffective assistance by failing to move for a downward departure based on the violence he endured because he cooperated with the police. Fajardo cannot show either deficient performance or prejudice because the violence was discussed at sentencing. The violence was considered in granting Fajardo a departure one level lower than the United States requested.
Fajardo alleges that counsel rendered ineffective assistance by not explaining the potential immigration consequences of his conviction. Fajardo relies on Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 1486 (2010), which holds "that counsel must inform her client whether his plea carries a risk of deportation." Padilla was decided several months after Fajardo's conviction became final. Generally, "a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise." Brady v. United States, 397 U.S. 742, 757 (1970). Consequently, Fajardo's claim depends on Padilla's retroactive application. The analysis of retroactivity is controlled by Teague v. Lane, 489 U.S. 288 (1989), which "clarif[ied] how the question of retroactivity should be resolved for cases on collateral review," 489 U.S. at 300, and holds that, "[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." 489 U.S. at 310. Retroactively applying a "new rule" is disfavored. See Teague, 489 U.S. at 309 ("Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system."). Despite Teague's caution about the Court's need to address the retroactivity of a decision—"the question whether a decision announcing a new rule should be given prospective or retroactive effect should be faced at the time of that decision," 489 U.S. at 300 (internal quotations omitted)—Padilla fails to state whether it applies retroactively and the Eleventh Circuit Court of Appeals has not yet addressed whether Padilla applies retroactively.
Padilla announced a "new rule." In deciding whether a rule is new, Saffle v. Parks, 494 U.S. 484, 488 (1990), suggests determining "whether a state court considering Parks's claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule Parks seeks was required by the Constitution." Padilla specifically recognized the abrogation of the law in most of the states and in all of the federal circuits, and the concurring opinion cites an article in which the authors report that eleven federal circuit courts plus more than thirty states and the District of Columbia "`hold that defense counsel need not discuss with their clients the collateral consequences of a conviction,' including deportation." 130 S. Ct. at 1481 and 1487. Based on the near uniformity of law that Padilla abrogated, a court "would [not] have felt compelled by existing precedent to conclude that" trial counsel renders ineffective assistance by not advising a client about the risks of deportation. No earlier Supreme Court decision extended Strickland's ineffective assistance of counsel test to this situation. To the contrary, precedent in this circuit foreclosed a claim of ineffective assistance of counsel based on these facts. See, e.g., United States v. Campbell, 778 F.2d 764 (11th Cir. 1985).
A "new rule" is defined as "a rule that `breaks new ground,' `imposes a new obligation on the States or the Federal Government,' or was not `dictated by precedent existing at the time the defendant's conviction became final.'" Parks, 494 U.S. at 488. Generally, a "new rule" is not retroactively applied.
Parks, 494 U.S. at 494-95 (quoting Teague). Neither of the two exceptions to non-retroactivity applies.
Although the Court justified the need to abrogate the universal rule against requiring immigration advice, Teague precludes Fajardo's benefitting from the retroactive application of Padilla.
Fajardo alleges that counsel rendered ineffective assistance by erroneously assuring him that he would serve less time than the sentence imposed if he participated in a drug treatment program. Fajardo contends that his immigration status precludes his receiving a reduction in the amount of time he must serve. When he pleaded guilty, Fajardo was cautioned that an attorney's representation about the likely sentence is not binding on the court and that the sentence actually imposed might be harsher than what counsel estimated, and Fajardo assured the court that "[no]body has promised him anything other than what is set out in [the] plea agreement. ..." Transcript of Change of Plea Hearing at 22 and 28 (Doc. 27) At sentencing, Fajardo was recommended for the drug treatment program "if eligible and qualifying. ..." Transcript of Sentencing at 36 (Doc. 30) Consequently, ground seven lacks merit.
Fajardo alleges that counsel's cumulative errors deprived him of his Sixth Amendment right to the effective assistance of counsel. Fajardo can prove cumulative error only by showing two or more errors. "Without harmful errors, there can be no cumulative effect compelling reversal." United States v. Barshov, 733 F.2d 842, 852 (11th Cir. 1984), cert. denied, 469 U.S. 1158 (1985). See Conklin v. Schofield, 366 F.3d 1191, 1210 (11th Cir. 2004) ("[T]he court must consider the cumulative effect of [the alleged errors] and determine whether, viewing the trial as a whole, [petitioner] received a fair trial as is [his] due under our Constitution."). Because each individual claim of error lacks merit, Fajardo shows no cumulative prejudicial effect.
Accordingly, both the motion to vacate under 28 U.S.C. § 2255 (Doc. 1) and the sealed motion to supplement (S-1) are DENIED. The clerk shall enter a judgment against Fajardo and close this case.
Rule 11(a), Rules Governing Section 2254 Cases, requires a district court to "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." As stated in Slack v. McDaniel, 529 U.S. 473, 483-84 (2000):
An applicant need not show probable success on appeal, but the issuance of a certificate of appealability entails more than "mere good faith" or only the "absence of frivolity." As stated in Miller-El v. Cockrell, 537 U.S. 322, 338 (2003):
Fajardo asserts that he is entitled to the benefit of Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 1486 (2010). Because the circuit courts are split on the issue, whether the holding in Padilla is a non-retroactive new rule or simply an extension of Strickland v. Washington, 466 U.S. 668 (1984), is a debatable issue amongst jurists of reason.
Accordingly, a certificate of appealability is GRANTED on the following issue:
Leave to proceed in forma pauperis on appeal is GRANTED. ORDERED
