USCA1 Opinion
March 27, 1995
[Not for Publication]
[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 94-1693
GEBRAN HANNA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Salvatore C. Adamo for appellant.
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Kevin P. McGrath, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for appellee.
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STAHL, Circuit Judge. Petitioner Gebran Hanna
STAHL, Circuit Judge.
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appeals from the dismissal without hearing of his 28 U.S.C.
2255 motion to vacate, set aside, or correct his sentence.
We affirm.
I.
I.
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Background
Background
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Pursuant to a plea agreement with the government,
on February 19, 1993, just three days before his trial was
scheduled to begin, petitioner pled guilty to two counts of a
superseding indictment.1 Count One charged petitioner and
nine other defendants with conspiring, between March 1988 and
August 1991, to import hashish from Beirut, Lebanon into
Boston, Massachusetts, in violation of 21 U.S.C. 952(a)
and 963. Count Two charged petitioner and three other
defendants with conspiring to possess with intent to
distribute, and to distribute, hashish in violation of 21
U.S.C. 841(a) and 846.
The district court departed below the minimum
mandatory sentence and sentenced petitioner to eight years'
imprisonment, plus five years of supervised release and a
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1. On August 26, 1991, petitioner and others were charged in
a two-count indictment with one count of conspiracy to import
hashish and one count of conspiracy to possess hashish with
the intent to distribute it. On January 31, 1992, a six-
count superseding indictment was filed, charging petitioner
with the same two conspiracy counts plus two additional,
related substantive counts. Eleven other defendants were
charged in various counts of the superseding indictment.
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special assessment of $100.00. Petitioner did not appeal.
On February 14, 1994, petitioner sought collateral relief
pursuant to 2255, which the district court denied. This
appeal followed.
II.
II.
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Discussion
Discussion
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Section 2255 provides that federal prisoners may
file a motion in the "court which imposed the sentence to
vacate, set aside or correct the sentence." To receive
relief, a petitioner must establish a jurisdictional or
constitutional error, "a fundamental defect which inherently
results in a complete miscarriage of justice," or "an
omission inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S. 424, 428 (1962).
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A. Failure to Hold a Hearing
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Petitioner first argues that the district court
abused its discretion by failing to hold an evidentiary
hearing to consider his 2255 motion. In making this
argument, petitioner primarily relies on the language of
2255, which provides, in pertinent part:
Unless the motion and the files and
records of the case conclusively show
that the prisoner is entitled to no
relief, the court shall cause notice
thereof to be served upon the United
States attorney, grant a prompt hearing
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thereon, determine the issues and make
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findings of fact and conclusions of law
with respect thereto.
28 U.S.C. 2255 (emphasis added).
We have previously held that 2255 does not create a
special presumption in favor of an evidentiary hearing. United
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States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). A hearing is
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not necessary "`when a 2255 motion (1) is inadequate on its
face, or (2) although facially adequate is conclusively refuted
as to the alleged facts by the files and records of the case.'"
Id. at 225-26 (quoting Moran v. Hogan, 494 F.2d 1220, 1222 (1st
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Cir. 1974)). "In other words, a 2255 motion may be denied
without a hearing as to those allegations which, if accepted as
true, entitle the movant to no relief, or which need not be
accepted as true because they state conclusions instead of facts,
contradict the record, or are inherently incredible." McGill, 11
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F.3d at 226 (quotation and citation omitted).
When a petition is brought under 2255, "the
petitioner bears the burden of establishing the need for an
evidentiary hearing." Id. at 225. This burden is more difficult
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when the petition is presented to the trial judge, for in such
circumstances "the judge is at liberty to employ the knowledge
gleaned during previous proceedings and make findings based
thereon without convening an additional hearing." Id.
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Judge Woodlock presided over petitioner's case from
the beginning, including his 2255 motion. Because we agree, as
explained below, that none of petitioner's stated grounds entitle
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him to relief, we hold that there was no abuse of discretion in
not holding an evidentiary hearing.
B. Guilty Plea: Knowing and Voluntary?
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Petitioner argues that during the change-of-plea
hearing, the district court failed to explain the consequences of
a guilty plea, specifically its permanence, its maximum possible
penalty, whether it carried a fine, and its supervised release
term. Petitioner argues that such failure violated Fed. R. Crim.
P. 11(c),2 and that because of such failure, his guilty plea was
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2. Fed. R. Crim. P. 11(c) provides:
"Advice to Defendant. Before accepting a plea of
Advice to Defendant.
guilty or nolo contendere, the court must address the
defendant personally in open court and inform the defendant
of, and determine that the defendant understands, the
following:
"(1) the nature of the charge to which the plea is
offered, the mandatory minimum penalty provided by law, if
any, and the maximum possible penalty provided by law,
including the effect of any special parole or supervised
release term, the fact that the court is required to consider
any applicable sentencing guidelines but may depart from
those guidelines under some circumstances, and, when
applicable, that the court may also order the defendant to
make restitution to any victim of the offense; and
"(2) if the defendant is not represented by an
attorney, that the defendant has the right to be represented
by an attorney at every stage of the proceeding and, if
necessary, one will be appointed to represent the defendant;
and
"(3) that the defendant has the right to plead not
guilty or to persist in that plea if it has already been
made, the right to be tried by a jury and at that trial the
right to the assistance of counsel, the right to confront and
cross-examine adverse witnesses, and the right against
compelled self-incrimination; and
"(4) that if a plea of guilty or nolo contendere is
accepted by the court there will not be a further trial of
any kind, so that by pleading guilty or nolo contendere the
defendant waives the right to a trial; and
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"unknowing." The government concedes that the district court
"did not explicitly state the maximum penalties that [petitioner]
faced at the change-of-plea hearing," but argues that
petitioner's plea was still knowing and voluntary.
Fed. R. Crim. P. 11(h) expressly provides: "Any
variance from the procedures required by this rule which does not
affect substantial rights shall be disregarded." Thus, a
violation of Rule 11 will not necessarily entitle petitioner to
relief. See United States v. Timmreck, 441 U.S. 780, 785 (1979)
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("collateral relief is not available when all that is shown is a
failure to comply with the formal requirements of [Rule 11]").
In denying petitioner's 2255 motion, the district
court held:
Contrary to petitioner's assertions, the
record substantiates that before he
tendered his plea of guilty, the
petitioner was made aware of potential
maximum penalties. The Rule 11 plea
colloquy incorporated by explicit
reference the written plea agreement
which recited those penalties.
Petitioner was reminded of the maximums
in the Presentence Report. The belated
assertion of this claim, well after
petitioner was aware of the maximum
penalties, demonstrates that a further
express recitation by the court itself of
the potential maximum penalty was not
material to his plea decision.
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"(5) if the court intends to question the defendant
under oath, on the record, and in the presence of counsel
about the offense to which the defendant has pleaded, that
the defendant's answers may later be used against the
defendant in a prosecution for perjury or false statement."
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We find no error in this holding.
Petitioner argues that his limited English skills and
his inability to read or write made it imperative that the
district court recite the maximum penalties during the Rule 11
plea colloquy. The record clearly indicates, however, that
petitioner was informed of the maximum penalties at several
points prior to the change-of-plea hearing, including just before
the hearing, when the plea agreement was read to him in Arabic by
the court interpretor. In light of this, the district court did
not clearly err in finding that, even though it had neglected to
inform petitioner of the maximum penalties during the change-of-
plea hearing, petitioner nevertheless understood those penalties
when he pled guilty.
C. Factual Basis for Plea
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Petitioner also argues that the district court erred
in finding that there was a sufficient factual basis for his
plea. First, petitioner argues that he had not agreed to
participate in the conspiracy before the government rendered it
impossible by seizing the hashish. Second, petitioner argues
that, at most, the government's proof showed an agreement to
import hashish into Canada in violation of no United States law.
Petitioner bases his arguments on the following
statement made by the prosecutor at the change-of-plea hearing:
On August 30th, 1991, Mr. Hanna returned
from Montreal to Boston for the purpose
of continuing discussions with [co-
defendant Peter] Kattar about the
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Canadian's position on the sale of this
hashish and it was at that time that he
was arrested at the airport.
Based on this statement, petitioner argues that the August 26,
1991 indictment was returned "before Mr. Hanna, a Canadian
citizen, had made an agreement with Peter Kattar for drugs
already seized by the government."
We hold that the district court did not clearly err
in finding that there was a sufficient factual basis for
petitioner's plea. Before making the above-quoted statement, the
prosecutor recited several facts to the effect that petitioner
had begun to participate in the conspiracy as early as 1990, when
he gave "advice and assistance" to Kattar in an effort to import
5,000 kilograms of hashish from Lebanon into the United States.
The prosecutor cited more facts that showed that petitioner's
involvement in the conspiracy continued into 1991, with
petitioner working closely with Kattar to free Kattar's load of
hashish from Lebanon. The prosecutor also highlighted a period
of a few weeks during August 1991, when petitioner engaged in
extensive negotiations with Kattar and others in an effort to
purchase Kattar's hashish shipment.3 During that time period,
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3. The Presentence Report indicates that at the same time he
was working to free Kattar's load of hashish from Lebanon,
petitioner was also involved in an independent hashish
conspiracy for which petitioner had accepted $350,000 from
investors for ten tons of hashish. Petitioner, however, was
unable to deliver that hashish to his investors, so he turned
to Kattar for assistance and arranged to swap loads with him;
under this arrangement, the details of which were still being
worked out at the time of his arrest, petitioner was to
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petitioner travelled from Lebanon to the United States, and then
between Boston, Montreal, and Ottawa, all in furtherance of these
negotiations.
After hearing these facts, the district court asked
petitioner, "Mr. Hanna, you have heard what [the prosecutor] says
is the Government's evidence in this case. Do you disagree with
any of that?" Petitioner responded by making one clarification,
about which the district court questioned the prosecutor.4 The
district court then asked petitioner, "Mr. Hanna, do you disagree
with anything that [the prosecutor] has to say?" Petitioner
responded, "No." The district court then asked, "That's the way
it happened?" Petitioner responded, "Yes."
We hold that these facts, and petitioner's
admissions, established a sufficient factual basis for
petitioner's guilty plea. We further hold that, to the extent
petitioner makes a jurisdictional argument, the conspiracies
charged were plainly within the jurisdiction of the United
States.
D. Ineffective Assistance of Counsel
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deliver the hashish Kattar was bringing into the United
States to his Canadian investors and Kattar was to receive
petitioner's hashish when it arrived.
4. Petitioner stated, "The load came to Italy, not to the
United States -- to Italy -- to Italy, not to the United
States. Who brought the load to the United States?" The
prosecutor responded to the district court's questioning that
the hashish had gone to Italy after it left Lebanon, but that
it was then brought to the United States, where the United
States Customs Service seized it.
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Petitioner also argues that he did not receive
effective assistance of counsel. Petitioner focuses on two
different attorneys: Brown, who was appointed to represent him
soon after he was indicted and who was to defend him at trial,
and McBride, whom petitioner retained for the change-of-plea
hearing. We find petitioner's arguments waived.
Petitioner argues on appeal that he only pled guilty
because he was unwilling to go to trial represented by Brown,
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5. Prior to changing his plea, petitioner filed a motion for
with whom he was dissatisfied.5 Petitioner did not, however,
withdrawal of Brown as counsel. Both the magistrate and the
district court, after hearings, found Brown entirely
indicate that that was the reason for his guilty plea at the
satisfactory and denied petitioner's motion. On appeal,
petitioner argues that Brown misinformed the magistrate and
change-of-plea hearing. Rather, petitioner indicated that his
the district court about the extent of his representation.
We do not consider these allegations, however, because the
plea was voluntary.6 Accordingly, petitioner waived
proper time to challenge the district court's refusal to
grant petitioner's motion would have been before petitioner
changed his plea. We note, however, that even if Brown's
alleged misrepresentations had been brought to the district
court's attention at the appropriate time, they probably
would not have changed the district court's ruling as to
Brown's effectiveness.
Petitioner also contends that he was denied
counsel altogether at an important stage in the proceedings
because the district court did not appoint an attorney to
help him make his motion for withdrawal of Brown as counsel.
Petitioner did not, however, ever ask either the magistrate
or the district court to appoint counsel (other than Brown)
to help him make this motion. While we doubt that we would
hold a refusal to appoint alternative counsel for these
hearings an abuse of discretion, we will not do so when
petitioner made no request for alternative counsel.
6. Prior to accepting petitioner's plea, the district court
asked petitioner's counsel, "Mr. McBride, do you know of any
reason why I shouldn't accept a plea?" McBride responded,
"No, Your Honor. I have had ample opportunity to speak with
him. I'm satisfied that the decision he's making today is
voluntary, intelligent, and knowing. And I have urged him to
do that because I consider it to be in his best interest
based upon the overwhelming evidence that the Government
has."
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consideration of the effectiveness of Brown's prior
representation.
At oral argument, petitioner argued that McBride did
not provide effective assistance because he did not inform the
district court at sentencing that petitioner had substantially
assisted the government by persuading a federal prisoner to
cooperate. Petitioner did not, however, provide factual
information about this assistance during oral argument, nor did
he develop this argument in his brief. In fact, petitioner's
brief fails to identify any aspect of McBride's representation
that fell below the standard of effective representation.
Accordingly, we deem the effectiveness of McBride's
representation waived. See Alan Corp. v. International Surplus
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Lines Ins. Co., 22 F.3d 339, 343-44 (1st Cir. 1994) (arguments
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presented in a perfunctory manner, without developed
argumentation, may be deemed waived).
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III.
III.
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Conclusion
Conclusion
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Because none of petitioner's arguments are
meritorious,7 the decision of the district court to deny
petitioner's motion for collateral relief pursuant to 2255 is
Affirmed.
Affirmed
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7. Petitioner also argues that the government denied him due
process by failing to advise the district court at his
change-of-plea hearing that his guilty plea was made pursuant
to an all-or-nothing plea offer by the government, i.e., a
plea offer that was contingent upon the guilty pleas of all
of his co-defendants. While it is not entirely clear from
the record, it is apparent that petitioner did not accept the
government's all-or-nothing plea offer, but instead pled
pursuant to a different plea offer.
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