529
U.S. 473, 484 (2000) (quoting Barefoot v. Estelle,
463 U.S. 880,
893 n.4 (1983) (internal quotation marks omitted)). Having
scrutinized petitioner's submissions and the relevant parts of the
record, we conclude that this standard has not been met.
Pursuant to a written plea agreement, petitioner pled guilty
in 1994 to one count of engaging in a continuing criminal
enterprise (CCE), 21 U.S.C. § 848, and to seventeen related
charges. He was sentenced in 1995 to a prison term of 308 months.
Petitioner pursued no direct appeal. In May 2000, he filed the
instant § 2255 petition, setting forth six claims that mainly
complained of ineffective assistance on the part of counsel. In a
margin order, the district court summarily denied the petition as
untimely. See 28 U.S.C. § 2255 ¶ 6 (prescribing one-year
limitations period); see also Rogers v. United States, 180 F.3d
349, 353-55 (1st Cir. 1999) (adopting one-year grace period
2
commencing on AEDPA's effective date of April 24, 1996), cert.
denied, 528 U.S. 1126 (2000). The court thereafter denied a COA.
It is possible that at least one of petitioner's claims--that
relying on Richardson v. United States, 526 U.S. 813 (1999)--was
timely filed. See, e.g., United States v. Lopez,
248 F.3d 427,
430-32 (5th Cir.) (applying Richardson retroactively to case on
collateral review pursuant to § 2255 ¶ 6(3)), cert. denied, 122 S.
Ct. 222 (2001). It is also at least arguable that a timely
Richardson claim would mean that the entire petition was timely.
Rather than delve into the knotty issues surrounding application of
the limitations period here, we prefer to dispose of the claims on
the merits. We conclude that, regardless of the correctness of the
district court's procedural ruling, petitioner has failed to
demonstrate "that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional
right."
Slack, 529 U.S. at 484.
First. Petitioner's first claim, which relies on Roe v.
Flores-Ortega, 528 U.S. 470 (2000), complains of counsel's failure
to file a direct appeal. Even on the arguendo assumption that
Flores can be invoked here, this claim falls short. Petitioner
acknowledges in his affidavit that he and counsel discussed the
possibility of appealing on at least three occasions following
imposition of sentence. At no point does petitioner suggest, much
less aver, that he gave counsel "specific instructions" to file a
3
notice of appeal. Id. at 477. His complaint instead amounts to a
disagreement with counsel's advice, which does not constitute a
Flores violation. In turn, even if the discussions with counsel
fell short of a "consult[ation]" as the Court defined that term,
see
id. at 478--a matter we do not decide--we think it clear for
three reasons that no constitutional violation would have obtained.
First, the conviction here followed a guilty plea, which the Court
deemed a "highly relevant factor."
Id. at 480. Second, although
calculated in different fashion, the sentence imposed was virtually
identical to that contemplated by the plea agreement. See
id.
(describing as pertinent "whether the defendant received the
sentence bargained for as part of the plea"). And third, a review
of petitioner's other assignments of error suggests they would have
had negligible prospect of success. Under these circumstances,
Flores imposed no obligation on counsel to do more than he did.
Second. Petitioner next asserts that he was entitled to some
sentencing reduction to reflect his cooperation with the
government.1 Yet as he acknowledges, an anticipated motion for
downward departure under U.S.S.G. § 5K1.1 was not pursued because
he refused to testify at the trial of his codefendants--something
the plea agreement obligated him to do. And as he now concedes,
1
As with his other sentencing challenges, this argument, to
the extent advanced as a substantive claim independent of any
ineffective-assistance charge, would not be cognizable on
collateral review. See, e.g., Knight v. United States, 37 F.3d
769, 771-74 (1st Cir. 1994).
4
his earlier reliance on § 5K2.0 was misplaced. See, e.g., United
States v. Alegria, 192 F.3d 179, 189 (1st Cir. 1999).
Third. Petitioner also complains that he failed to receive an
additional two-point reduction in his offense level as contemplated
by the plea agreement. That stipulation concerned a deduction "for
time served as a result of the federal prosecution in the District
of Maine, to conform with the intent [of U.S.S.G.] § 5G1.3." The
presentence report (PSR) understandably voiced confusion about this
provision, inasmuch as § 5G1.3 provides a mechanism for addressing
a "prior unexpired term of imprisonment" and the Maine prison term
had already expired. Regardless, the PSR compensated under § 5G1.3
by affording petitioner full credit for time served on an unexpired
term of imprisonment in New Hampshire--a proposal not included in
the plea agreement. The ensuing sentence (308 months, commencing
in mid-December 1995) was virtually identical to that recommended
by the plea agreement (324 months, commencing in late July 1994).
Petitioner's assertion that he should have received both the plea
agreement's two-level reduction and the PSR's sixteen-month credit
ignores the fact that those two calculations were alternative means
of implementing § 5G1.3.
Fourth. Petitioner also objects to his sentencing enhancement
for obstruction of justice. Under the 1989 version of U.S.S.G. §
3C1.1, a two-level increase was warranted if petitioner "willfully
impeded or obstructed ... the administration of justice during the
5
investigation or prosecution of the instant offense." The plea
agreement recommended such an enhancement, as did the PSR, which
noted that petitioner had been "a fugitive from justice from the
New Hampshire courts since 1982." Petitioner does not dispute that
his fugitive status obstructed justice in the state prosecution.
Yet he argues that, because the federal investigation allegedly did
not commence until after his recapture in 1990, he engaged in no
obstructive behavior "during the investigation or prosecution of
the instant offense."
Given the close connection between the state and federal
offenses, this contention likely fails for the reasons recited in
United States v. Emery, 991 F.2d 907, 910-12 (1st Cir. 1993).
Regardless, even if the § 3C1.1 enhancement were open to challenge,
petitioner has not made out a claim of ineffective assistance. His
complaint is that counsel should have objected to that enhancement
at sentencing or on appeal. Yet such a course likely would have
nullified the plea agreement and thereby raised the prospect of a
longer sentence. We recently rejected an ineffective-assistance
claim under analogous circumstances. See Cofske v. United States,
290 F.3d 437, 443-45 (1st Cir. 2002).
Fifth. Petitioner's next challenge is to the use of the 1989
version of the sentencing guidelines. Because that version
increased the penalties for tax violations, and because
petitioner's tax offenses were completed before that amendment took
6
effect, he argues that the Ex Post Facto Clause required use of the
1988 version of the guidelines. This contention, however,
overlooks the policy statement in U.S.S.G. § 1B1.11(b)(3) and
accompanying commentary, which supports the choice of guidelines
made here. See also United States v. Regan, 989 F.2d 44, 48-49 (1st
Cir. 1993). Moreover, petitioner's claim of prejudice rests on the
questionable premise that the remedy for any ex post facto
violation would be to apply the 1988 guidelines, not just to his
tax offenses, but to all counts of conviction. See, e.g., United
States v. Sullivan,
255 F.3d 1256, 1263 (10th Cir. 2001) (rejecting
similar argument on ground that it would produce "anomal[ous]"
result whereby commission of additional crimes resulted in lower
overall sentence), cert. denied,
534 U.S. 1166 (2002). We also
note that the plea agreement endorsed use of a post-1988 version of
the guidelines. Again, therefore, any challenge along these lines
might have nullified the agreement and threatened an increased
sentence. Counsel cannot be faulted for eschewing such a course.
Sixth. Petitioner's final claim relies on Richardson, in
which the Court held that the jury must unanimously agree which
specific drug violations make up the "continuing series" for a CCE
conviction. In a two-pronged argument, petitioner alleges that,
because he was not informed of this requirement, (1) his guilty
plea was not knowing, intelligent and voluntary, and (2) his
counsel rendered ineffective assistance. The first part of this
7
claim, not having been raised on direct appeal, is procedurally
defaulted. See, e.g., Cody v. United States, 249 F.3d 47, 51-52
(1st Cir. 2001). It thus may be pursued on collateral review only
if petitioner can demonstrate either "cause" and "prejudice" or
"actual innocence." See, e.g., Bousley v. United States,
523 U.S.
614, 622 (1998). Petitioner has made none of these showings.
As explained in United States v. Scott, 218 F.3d 835, 837-39
(8th Cir.), cert. denied,
531 U.S. 1000 (2000), the unanimity
question was not sufficiently novel at the time of petitioner's
conviction so as to provide cause for the failure to raise it;
indeed, petitioner himself acknowledges that one circuit court had
held in 1988 that unanimity was required in this context. In turn,
just as in United States v. Lopez,
248 F.3d 427, 433 (5th Cir.),
cert. denied,
122 S. Ct. 222 (2001), we find no prejudice (or
actual innocence). Petitioner did not object to the PSR, which
contained a detailed account of his drug activity over the course
of more than a decade.2 And he admitted in the plea agreement that
$3 million in cash and thirteen separate properties were subject to
forfeiture as a result of such activity. Against this backdrop, we
think it inconceivable that a jury would have failed to agree
2
To cite just three examples: petitioner distributed over
fifty kilograms of cocaine and thousands of pounds of marijuana
during the 1980s and netted over $3 million from such sales (PSR ¶¶
9 & 10); he visited his customer base on a weekly or bi-weekly
basis (¶ 28); and one customer purchased a kilogram of cocaine per
month from him for several years (¶ 30).
8
unanimously upon three CCE predicates (or that petitioner could
reasonably have so thought at the time of his plea). Petitioner's
only attempts at a rebuttal--that his drug sales were unrelated
events and that he played no supervisory role--are belied by the
record. This lack of prejudice, in turn, also suffices to dispose
of the ineffective-assistance component of the Richardson claim.
Accord, e.g., Scott, 218 F.3d at 238.
For these reasons, the application for a COA is denied and the
appeal is terminated.
9
