SARAH S. VANCE, District Judge.
Before the Court is petitioner Steven Hebert's motion to vacate his guilty plea pursuant to 28 U.S.C. § 2255.
On February 18, 2010, the Government filed a superseding indictment charging Hebert with two counts of distributing narcotics, two counts of possession of narcotics with the intent to distribute, and two counts of unlawfully possessing firearms.
On the morning that his trial was to begin, Hebert entered into a plea agreement with the Government under Federal Rule of Criminal Procedure 11(c)(1)(C), in which Hebert agreed to plead guilty to Counts Three, Four, and Five of the indictment, and to the bill of information establishing Hebert's prior felony drug convictions.
Hebert pleaded guilty to the bill of information establishing his prior felony drug convictions and to Counts Three, Four, and Five of the superseding indictment.
The Court then had the lawyers explain the plea agreement and confirmed that Hebert understood it:
The Court specifically asked:
The Court then informed Hebert:
Hebert also assured the Court that no one promised or otherwise told him what specific sentence the Court would impose:
Finally, Mr. Chaney assured the Court that he had not made any representations to Hebert regarding what sentence the Court would impose:
At the sentencing proceeding held on September 21, 2011, the Court computed the sentencing guideline range:
The Court then accepted the plea agreement:
After hearing arguments from both sides, the Court sentenced Hebert to 292 months as to Count Three, 292 months as to Count Four, and 100 months as to Count Five, all to run concurrently.
Although Hebert waived his right to appeal his conviction and sentence, he reserved the right to challenge the validity of his guilty plea on ineffective assistance of counsel grounds. Thus, Hebert now seeks to vacate his plea pursuant to 28 U.S.C. § 2255. Hebert alleges that his attorney, George Chaney, falsely promised Hebert that the plea agreement guaranteed a specific term of 15years imprisonment. Hebert relies on the testimony of his fiancé, Shanda Duncan, and his mother, Shula Ingram, to corroborate his contention that Chaney induced Hebert's guilty plea through a false promise of a guaranteed 15-year sentence.
Section 2255 of Title 28 of the United States Code provides that a federal prisoner serving a court-imposed sentence "may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). Only a narrow set of claims are cognizable in a section 2255 motion. The statute identifies four bases on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." Id. A claim of error that is neither constitutional nor jurisdictional is not cognizable in a section 2255 proceeding unless the error constitutes "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
Ultimately, the petitioner bears the burden of establishing his claims of error by a preponderance of the evidence. Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980). For certain "structural" errors, relief follows automatically once the error is proved. Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993). For other "trial" errors, the court may grant relief only if the error "had substantial and injurious effect or influence" in determining the outcome of the case. Id. at 637-38; see also United States v. Chavez, 193 F.3d 375, 379 (5th Cir. 1999) (applying Brecht's harmless error standard in a section 2255 proceeding). If the court finds that the prisoner is entitled to relief, it "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).
Here, Hebert moves the Court pursuant to 28 U.S.C. § 2255(a) to vacate his guilty plea. Although Hebert waived his right to appeal from his conviction and sentence under 28 U.S.C. § 2255 in the plea agreement, he expressly reserved the right to bring a post conviction claim "if the defendant establishes that ineffective assistance of counsel directly affected the validity of . . . the guilty plea itself."
To establish an ineffective assistance of counsel claim, a petitioner must show that counsel's performance fell below an objective standard of reasonableness and must further show a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). This two-prong analysis applies to challenges to guilty pleas on ineffective assistance of counsel grounds. Hill v. Lockhart, 474 U.S. 52, 58 (1985). If a court finds that a petitioner has failed to make a sufficient showing for either prong of the inquiry, the court may dispose of the claim. Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").
With regard to the deficient performance prong, the Fifth Circuit has held that an attorney who misadvises his client of his true sentence exposure during plea negotiations has rendered deficient performance. See, e.g., United States v. Herrera, 412 F.3d 577, 580-81 (5th Cir. 2005); United States v. Grammas, 376 F.3d 433, 437 (5th Cir. 2004). Moreover, an attorney renders deficient performance in inducing a guilty plea by misrepresenting a defendant's sentence exposure. United States v. Perez, 227 F. App'x 357, 359 (5th Cir. 2007) ("It is well-settled law that a guilty plea may be invalid if induced by defense counsel's unkept promises.").
The evidentiary burden on a petitioner is more onerous when a written plea agreement and statements in open court contradict an allegation of an unkept promise. See, e.g., United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998) (citations omitted) ("Solemn declarations in open court carry a strong presumption of verity, forming a formidable barrier in any subsequent collateral proceedings."); United States v. Soliz, 359 F. App'x 466, 470 (5th Cir. 2009) (per curiam)(citations omitted) ("[O]fficial documents, such as a written plea agreement, are entitled to a presumption of regularity and are accorded great evidentiary weight."). Nevertheless, a petitioner may demonstrate entitlement to relief on the basis of his attorney's alleged promises, though inconsistent with his representations in open court when entering his guilty plea, by proving: (1) the exact terms of the alleged promise; (2) exactly when, where, and by whom such promise was made; and (3) the precise identity of any eyewitness to the promise. Cervantes, 132 F.3d at 1110; Smith v. Blackburn, 785 F.2d 545, 548 (5th Cir. 1986); Hayes v. Maggio, 699 F.2d 198, 203 (5th Cir. 1983).
With respect to the prejudice prong of an ineffective assistance of counsel claim, a petitioner must demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." United States v. Smith, 844 F.2d 203, 209 (5th Cir. 1988) (quoting Hill, 474 U.S. at 59). A petitioner must do more than simply allege that he would have insisted on going to trial. "The test is objective; it turns on what a reasonable person in the defendant's shoes would do." Id. at 209. See also Padilla v. Kentucky, 559 U.S. 356, 372 (2010) ("[A] petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances."). In the Fifth Circuit, relevant circumstances include the strength of the evidence against the petitioner, the benefit received under the terms of the agreement relative to the petitioner's sentencing exposure should he have gone to trial, and the information made available to the petitioner during the plea colloquy. See, e.g., Smith, 844 F.2d at 209; United States v. Thompson, 44 F.3d 1004, at *2 (5th Cir. 1995); United States v. Williams, 490 F. App'x 632, 633 (5th Cir. 2012); United States v. Mackay, 339 F. App'x 367, 368-69 (5th Cir. 2009).
Hebert asks the Court to revoke his guilty plea because his attorney, George Chaney, allegedly induced Hebert to plead guilty by falsely promising a fixed sentence of 15 years. This contention is directly contradicted by Hebert's sworn statements in open court and the express terms of the plea agreement itself,
The first prong of the Strickland test requires Hebert to demonstrate that Chaney's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687. Hebert's allegation—that Chaney promised a specific term of 15 years—if true, would certainly constitute deficient performance. See Perez, 227 F. App'x at 359. The Court finds, however, that Hebert has failed to provide this Court with any credible evidence to support his contention that Chaney made the alleged promise.
On August 26, 2014, the Court held an evidentiary hearing to determine whether Hebert's counsel, George Chaney, induced Hebert to plead guilty by promising Hebert a specific sentence of 15 years. Hebert offered his own testimony as well as the testimony of his fiancé, Shanda Duncan, and his mother, Shula Ingram, in an attempt to establish that Chaney promised all three individuals that "[Hebert] would be basically already sentenced at the plea hearing because the plea was under a certain rule that did not allow the judge to go outside of the agreed upon 15 years."
As an initial matter, the Court finds Hebert's proffered evidence incredible in light of the signed plea agreement and Hebert's sworn statements during the plea colloquy. The plea agreement unequivocally stated that the parties agreed that "a specific sentencing range of not less than 15 years and maximum of life imprisonment is appropriate in the disposition of this case."
Although not dispositive, the written plea agreement and Hebert's sworn statements "carry a strong presumption of verity, [and] form[] a formidable barrier in [this] subsequent collateral proceeding[]." Cervantes, 132 F.3d at 1110.
At the evidentiary hearing, Hebert offered his own testimony as well as that of his mother and fiancé. Although Hebert and his fiancé claimed, in general terms, that Chaney promised a sentence of 15 years, their stories were inconsistent regarding the details. For example, Hebert's fiancé testified that Chaney made the alleged promise a few weeks before the trial, notwithstanding the fact that the plea agreement at issue was not reached until three days prior to the trial date. Hebert, on the other hand, vacillated between testifying that Chaney's promise was communicated to him through his mother and fiancé, and testifying that Chaney made the promise to Hebert in person the morning trial was to commence. Even ignoring these inconsistencies, Hebert's mother directly contradicted the testimony of both Hebert and his fiancé. Hebert's mother testified that Hebert, his mother, and his fiancé all knew that Hebert could receive a sentence greater than 15 years and acknowledged that they knew they "were taking a chance" by signing the plea agreement. Hebert's mother further testified that it was Hebert himself who initially told her that there was a chance he could receive a longer sentence.
George Chaney also testified at the evidentiary hearing and stated, in no uncertain terms, that he never promised Hebert, Hebert's mother, or Hebert's fiancé a fixed sentence of 15 years. Chaney further testified that Hebert understood the sentencing guidelines and was adamant that Chaney file objections to the Presentence Investigation Report which called for an elevation of the sentencing range based on Hebert's prior drug convictions. Chaney also stated that Hebert conducted significant research on his own and understood that he faced a higher guideline range if the Court sentenced him as a career offender.
In conclusion, having observed the testimony and demeanor of the witnesses, the Court finds that Hebert and his fiancé lack credibility. Chaney and Hebert's mother provided the only internally consistent and plausible account of the events, and both Chaney and Hebert's mother testified that Hebert knew that the Court could impose a sentence anywhere between 15 years to life imprisonment. Thus, Hebert has failed to proffer any credible evidence to support his contention that Chaney induced his guilty plea through a promise of a specific 15-year jail sentence. Accordingly, the Court finds that Hebert has failed to establish that Chaney rendered deficient performance in connection with his guilty plea.
To prove prejudice, Hebert must demonstrate "a reasonable probability that, but for counsel's [false promise], he would not have pleaded guilty and would have insisted on going to trial." Smith, 844 F.2d at 209. Hebert's bald assertions that he would have insisted on going to trial are insufficient; Hebert "must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, 559 U.S. at 372. Relevant circumstances include the strength of the evidence against Hebert, the benefit he received under the plea agreement, and the information the Court provided Hebert during the plea colloquy. Williams, 490 F. App'x at 633.
As an initial matter, the Government's evidence against Hebert in this case was overwhelming. Counts Three, Four, and Five of the superseding indictment charged Hebert with possession with the intent to distribute 500 grams of cocaine hydrochloride, possession with the intent to distribute five grams or more of cocaine base, and possession of firearms after having been previously convicted of a felony offense, respectively.
Second, Hebert received a considerable benefit under the plea agreement. Indeed, under the terms of the plea agreement, the Government agreed to the dismissal of half of the counts against Hebert, including Counts One and Six.
Finally, the Court went to great lengths during the plea colloquy and sentencing hearing to ensure that Hebert understood his sentencing exposure without a plea agreement as well as his exposure if the Court accepted the plea agreement. At the rearraignment proceeding, the Court repeatedly advised Hebert of the potential consequences of his plea, and Hebert consistently stated, under oath, that he understood. The Court also explained the consequences of admitting his four prior felony drug convictions and the effect of those prior convictions on his sentencing exposure.
The Court additionally explained that it would allow Hebert to withdraw his guilty plea if the Court rejected the plea agreement.
Finally, at the sentencing hearing the Court explained that even if it accepted the plea agreement, the sentence could range from 15 years to life imprisonment.
Having considered all of the circumstances, the Court finds that Hebert has failed to demonstrate that, but for his counsel's alleged promises, he would have rejected the plea agreement and insisted on going to trial. Smith, 844 F.2d at 209.
Having considered the relevant circumstances, the Court finds that Hebert has failed to demonstrate that his guilty plea was a consequence of the ineffective assistance of counsel. Accordingly, the Court DENIES Hebert's motion to vacate his plea.
