TED STEWART, District Judge.
This matter is before the Court on Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. For the reasons discussed below, the Court will deny the Motion and dismiss this case.
Petitioner was originally charged in a four-count Indictment on December 23, 2015. The Indictment charged him with possession of methamphetamine with intent to distribute, possession of heroin with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime, and felon in possession of firearms and ammunition. A Superseding Indictment was filed on February 3, 2016, which included the same charges.
On July 21, 2016, Petitioner pleaded guilty to possession of methamphetamine with intent to distribute. That charge carried a minimum mandatory sentence of ten years, with a maximum possible penalty of up to life. In exchange for his guilty plea, the government agreed to dismiss the remaining counts and forego the filing of a sentencing enhancement under 21 U.S.C. § 851. Additionally, the government agreed to recommend a sentence within the guideline range determined by the Court. Petitioner agreed to waive certain appeal rights and also agreed to the forfeiture of specific property.
Petitioner proceeded to sentencing on January 4, 2017. The Presentence Report ("PSR") calculated Petitioner's guideline range as 188 to 235 months. Prior to sentencing, Petitioner's counsel filed a document entitled Position Regarding Sentencing and Motion for Downward Departure and/or Variance. In that filing, counsel requested the Court impose the mandatory minimum sentence of ten years. At sentencing, the Court declined this request and sentenced Petitioner to a low-end sentence of 188 months.
Petitioner filed a pro se notice of appeal on January 10, 2017. The Tenth Circuit Court of Appeals appointed the Federal Public Defender to represent him on appeal. On appeal, Petitioner challenged whether the guidelines were properly calculated and whether his sentence was reasonable. The government moved to enforce the appeal waiver contained in his plea agreement. The Tenth Circuit agreed and dismissed the appeal. Petitioner timely filed the instant Motion.
Petitioner's Motion raises five claims of ineffective assistance of counsel. Petitioner argues that counsel was ineffective for: (1) failing to challenge a breach of the plea agreement; (2) coercing Petitioner into an unknowing and involuntary plea; (3) failing to seek a mental health evaluation and failing to introduce it as mitigation evidence at sentencing; (4) failing to properly challenge the imposition of a sentencing enhancement; and (5) failing to perfect the appeal. Before reaching the merits of these claims, however, the Court must address the government's contention that claims three through five are barred by the collateral appeal waiver contained in Petitioner's plea agreement.
As part of his plea agreement, Petitioner agreed to waive his ability to bring a collateral attack as follows:
The Court disagrees.
The Tenth Circuit has established a three-part test based upon contract principles to interpret appeal waivers.
"In determining the scope of waiver, we apply principles of contract law and examine the plain language of the plea agreement."
The government argues that the collateral appeal waiver here limits Petitioner's ability to bring ineffective assistance of counsel claims to only those claims involving challenges to the validity of the plea or the waiver. Because Petitioner's third, fourth, and fifth claims do not involve challenges to the validity of the plea or waiver, the government argues they are barred by the wavier. However, the language of the agreement is not as limiting as the government would suggest. The plea agreement specifically allows Petitioner to bring § 2255 claims for ineffective assistance of counsel. There is no language restricting the types of ineffective assistance claims Petitioner may bring. While the plea agreement could have limited Petitioner's ability to bring ineffective assistance claims relating only to the validity of the plea or waiver,
The Supreme Court has set forth a two-pronged test to guide the Court in making a determination of ineffective assistance of counsel. "To demonstrate ineffectiveness of counsel, [Petitioner] must generally show that counsel's performance fell below an objective standard of reasonableness, and that counsel's deficient performance was prejudicial."
A court is to review Petitioner's ineffective-assistance-of-counsel claim from the perspective of his counsel at the time he or she rendered the legal services, not in hindsight.
Petitioner first argues that his counsel was ineffective for failing to challenge a breach of the plea agreement. Petitioner states that his counsel told him that the plea offer from the government was for 144 months on Count One and there would be no enhancements. However, Petitioner received a sentence of 188 months. Based upon this, Petitioner asserts either: (1) the government breached the plea agreement; or (2) such an agreement never existed and his attorney misled him.
"In interpreting a plea agreement, we rely on general principles of contract law."
Turning first to the express language of the agreement, there is no reference to an agreement that Petitioner would receive or the government would recommend a sentence of 144 months. The agreement does state that, in exchange for Petitioner pleading guilty to Count One, the government agreed to dismiss the remaining counts. The government also agreed to forego filing an enhancement under 21 U.S.C. § 851. However, the government did not agree to a sentence of 144 months. Rather, the government agreed "to recommend at sentencing that [Petitioner] be sentenced to a term of incarceration within the Sentencing Guideline range determined by the Court."
Petitioner's understanding of the plea agreement can be found in the plea agreement and his statements at the change of plea hearing. The plea agreement informed Petitioner that the maximum possible penalty was a term of imprisonment of up to life and a minimum mandatory sentence of ten years. Petitioner acknowledged that "the final calculation of my sentence by the Court may differ from any calculation the United States, my attorney, or I may have made, and I will not be able to withdraw my plea if this occurs."
At the change of plea hearing, Petitioner confirmed that he read "each and every sentence of [the plea] agreement" and had a sufficient opportunity to review it with his attorney.
Based upon this evidence, the Court concludes that counsel was not ineffective in failing to object to a breach of the plea agreement because there was no such breach. The express language of the plea agreement contains no agreement for the government to recommend or the Court impose a sentence of 144 months. Further, Petitioner stated, both in the plea agreement and under oath in open court, that no other promises were made to him. Petitioner's conclusory statement that his counsel informed him that the deal was for 144 months does not overcome this evidence. "Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal. . . ."
Alternatively, Petitioner argues that his counsel coerced an unknowing and involuntary plea. "[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel."
"A plea may be involuntary when an attorney `materially misinforms the defendant of the consequences of the plea or the court's probable disposition.'"
Moreover, there is no evidence that, but for counsel's alleged errors, Petitioner would have pleaded not guilty and would have insisted on going to trial. Nowhere in his Motion or supporting declaration does Petitioner state that he would have gone to trial. Even if he had made such a statement, it would fail. Both the plea agreement and the colloquy at the change of plea hearing made clear to Petitioner that there was no agreement that he would be sentenced to 144 months. Despite being so informed, Petitioner pleaded guilty. Given the fact that Petitioner still pleaded guilty, he cannot demonstrate that he would have insisted on going to trial.
Petitioner states that he suffers from several mental health issues, some of which are the result of his father being killed by law enforcement. Petitioner argues that his counsel was ineffective for failing to further develop the record on this issue. Petitioner believes that having a psychological assessment would have mitigated the sentence the Court ultimately imposed.
The Court cannot conclude that counsel's performance was deficient in failing to seek a mental health evaluation or further developing the record on Petitioner's mental health issues. The PSR noted that Petitioner's father was shot and killed by law enforcement. The PSR further reported that Petitioner suffered from head injuries as a child and as an adult, and stated that his family believed that he suffered from brain damage. The PSR further stated that prison records revealed that Petitioner was diagnosed with anxiety disorder and ADHD.
In the Position Regarding Sentencing and Motion for Downward Departure and/or Variance, Petitioner's counsel provided further detail of Petitioner's mental health issues. Counsel argued that Petitioner was "a long-time addict with a troubled childhood, a probable brain injury, and inadequate social skills in an effort to ingratiate himself with others was taken advantage of by criminal acquaintances and found himself involved in the distribution of methamphetamine."
Based upon this, the Court cannot conclude that counsel's performance was deficient. Counsel brought Petitioner's mental health issues to the attention of the Court. He argued that those issues, along with a number of other factors, warranted a lesser sentence. Ultimately, the Court disagreed with the recommendation to sentence Petitioner at the statutory minimum sentence. But the Court also disagreed with the government's recommendation to sentence Petitioner at the high-end of the guideline range. While counsel could have certainly done more, his performance was not constitutionally deficient.
Even assuming counsel's performance was deficient, Petitioner has failed to demonstrate a reasonable probability that his sentence would have been different had counsel done more. Petitioner states, in a conclusory fashion, that he believes that a psychological assessment would have mitigated the sentence ultimately imposed. However, he fails to identify any information that would have been contained in that assessment that was not already before the Court. Petitioner merely states that he suffers from several mental health issues, some of which were brought on by his father's death. However, counsel provided this information to the Court. As a result, not only was counsel's performance not deficient, Petitioner has failed to demonstrate prejudice.
The PSR contained a two-level enhancement for obstruction of justice. Petitioner argues that his counsel was ineffective in failing to challenge the inclusion of this enhancement.
Section 3C1.1 of the 2015 Guidelines states:
The Commentary provides examples of obstructive conduct, including "destroying or concealing or directing or procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding . . . or attempting to do so."
Petitioner does not challenge these facts in the present Motion. Petitioner appears to believe that the enhancement was applied because he committed perjury. However, that is not the case. Without some showing that the facts in the PSR were incorrect, Petitioner has failed to provide a basis to conclude that his counsel was ineffective for failing to object. Therefore, this claim fails.
Petitioner's final argument is that his original counsel was ineffective in failing to perfect an appeal. Petitioner argues that his first three claims were not barred by the appeal waiver and should have been addressed on direct appeal.
This argument fails on the prejudice prong for two reasons. First, Petitioner was able to file an appeal and was appointed counsel. Petitioner's appointed counsel was able to perfect the appeal, though the appeal was later dismissed as being barred by the appeal waiver. Second, Petitioner has failed to show that there is a reasonable probability that any of the claims he believes should have been raised would have resulted in a reversal on appeal.
"[I]t is difficult to establish a claim of ineffective assistance of appellate counsel based on a failure to raise a particular issue on appeal."
When the basis of a claim for ineffective assistance of counsel is the failure by appellate counsel to raise an issue on appeal, "we must look to the merits of the omitted issue."
Petitioner argues that his first, second, and third claims would not have been barred by the appeal waiver and should have been addressed on direct appeal. To the extent that Petitioner sought to assert claims of ineffective assistance on direct appeal, the Tenth Circuit has consistently held that "[i]neffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal."
It is therefore
ORDERED that Petitioner's Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Docket No. 1 in Case No. 1:18-CV-12 TS) is DENIED. It is further
ORDERED that, pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an evidentiary hearing is not required. It is further
ORDERED that pursuant to Rule 11(a) of the Rules Governing § 2255 Cases, the Court DENIES Petitioner a certificate of appealability.
