CHRISTINA A. SNYDER, District Judge.
On September 7, 2017, Tony Cruz Ursulo II pled guilty to two counts of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d), and one count of possession, use, carrying, and brandishing of a firearm in furtherance of and during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
A petition pursuant to 28 U.S.C. § 2255 challenges a federal conviction and/or sentence to confinement where a prisoner claims "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack."
Ineffective assistance of counsel constitutes a violation of the Sixth Amendment right to counsel, and thus, if established, is grounds for relief under section 2255. To establish ineffective assistance of counsel, a petitioner must prove by a preponderance of the evidence that: (1) the assistance provided by counsel fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.
With respect to the first prong, the Court's review of the reasonableness of counsel's performance is "highly deferential," and there is a "strong presumption" that counsel exercised reasonable professional judgment.
After establishing an error by counsel and thus satisfying the first prong, a petitioner must satisfy the second prong by demonstrating that his counsel's error rendered the result unreliable or the trial fundamentally unfair.
The Court need not necessarily determine whether petitioner has satisfied the first prong before considering the second. The Supreme Court has held that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed."
Petitioner provides five discrete reasons why he believes his defense counsel Craig Harbaugh was ineffective: (1) his counsel told him that his sentence upon pleading guilty would be between seven and seven-and-a-half years, instead of the 17 years that the Court imposed, mot. at 5; (2) his counsel failed to explain the evidence, charges, options, and Sentencing Guidelines,
Petitioner contends that his counsel's performance was deficient because his counsel erroneously told him that his sentence upon entering a guilty plea would be between seven and seven-and-a-half years when, in fact, the Court ultimately imposed a sentence of 17 years. Mot. at 5; Supp. Mot. at 3-5.
Petitioner's contention that his counsel misrepresented his likely sentence is directly contradicted by the record. At the September 7, 2017 change of plea hearing, defense counsel expressly stated that petitioner was "pleading guilty to the three charges resulting in a maximum mandatory minimum of 17 years." Dkt. 17-2 ("9/7/2017 Transcript") at 9. Petitioner also explicitly affirmed that he had read and discussed the plea agreement with his counsel and understood and accepted its terms, including the mandatory minimums stated on the record:
The record demonstrates that petitioner was aware at the time he entered into the plea agreement that his plea could result in a 17-year sentence. Accordingly, the Court finds that he cannot sustain an allegation of ineffective assistance on the basis that his counsel misrepresented his likely sentence.
Moreover, petitioner cannot demonstrate prejudice because there is no basis from which to conclude that had he known the plea agreement would have resulted in a sentence of 17 years rather than seven, he would have gone to trial and risked a mandatory minimum sentence of 42 years.
Petitioner further asserts that defense counsel's performance was deficient because his counsel failed to explain to him the evidence, charges, options, and Sentencing Guidelines. Mot. at 5; Supp. Mot at 5-6. Petitioner also alleges that his counsel failed to inform him of his options to proceed to trial or seek a more favorable plea bargain.
9/7/2017 Transcript at 12-13, 18-19. Furthermore, defense counsel stated in his written response to the government's interrogatories that prior to the change of plea hearing, he: (1) "personally discussed and reviewed the evidence with [petitioner]"; (2) "investigated and discussed possible defenses with [petitioner]"; (3) "explained the guidelines calculation, the advisory guidelines range, and the statutory maximum"; and (4) "[p]rior to signing the [Second Plea Agreement], advised [petitioner] regarding the weight of the evidence, availability of any defenses, likelihood of success at trial, his constitutional rights if he proceeds to trial, and the consequences of entering a guilty plea." Dkt. 17-4 at 4-7. Petitioner also affirmed that he was aware of his option to proceed to trial and understood the rights that he was foregoing by choosing to plead guilty:
9/7/2017 Transcript of Change of Plea Hearing at 19-21. Thus, petitioner's allegation that his counsel failed to inform him of his options to proceed to trial or take a "[more] favorable plea offer," mot. at 5, are unsupported by the evidence.
Aside from his unsupported allegations about defense counsel's failure to inform him of important information, petitioner fails to put forth any evidence demonstrating that his counsel's actions were unreasonable and therefore deficient. Petitioner also does not establish a reasonable probability that, but for counsel's failure to inform him of the evidence, charges, options, and Sentencing Guidelines, the result of the proceedings would have been different.
Accordingly, the Court finds that petitioner was not denied his right to effective assistance of counsel based on his counsel's purported failure to inform him of the evidence, charges, options, and Sentencing Guidelines.
Petitioner asserts that he is innocent as to one of the two bank robberies to which he pled guilty and that defense counsel should have conducted a further investigation to learn of his innocence. Supp. Mot. at 6. Petitioner, however, admitted that he committed both bank robberies charged in the indictment when he signed the Second Plea Agreement. PA ¶ 17. Petitioner also affirmed at the change of plea hearing that, had the case gone to trial, the government could have proven beyond a reasonable doubt that "[o]n December 26, 2014, petitioner by force and intimidation robbed a Chase bank located at 805 West Foothill Boulevard, Claremont, California" and that "[o]n June 30, 2015, defendant by force and intimidation robbed a City bank located at 401 East Arrow Highway in Glendora, California." 9/7/2017 Transcript at 22-23. Petitioner stated that he was pleading guilty "because [he was] guilty and for no other reason."
Furthermore, petitioner fails to specify which evidence his counsel failed to investigate. Petitioner's broad and conclusory allegations do not entitle him to any relief.
Petitioner also cannot demonstrate prejudice based on his counsel's allegedly inadequate investigation into his innocence. According to the government, the evidence against defendant was overwhelming: "He was caught coming out of one bank with a gun and a backpack full of cash, and multiple videos, photographs, and eyewitnesses identified him as the perpetrator of the second armed robbery." Opp'n at 17. In light of the government's representations and petitioner's failure to provide any details regarding why he believes he was innocent as to one of the bank robberies, there is no basis to conclude that his counsel would have found exculpatory material that would have caused petitioner to proceed to trial or to obtain a more favorable plea agreement.
Accordingly, the Court finds that petitioner was not denied his right to effective assistance of counsel based on his counsel's purported failure to investigate petitioner's innocence.
Petitioner asserts that he was on "numerous types of medication" for his "medical [] and mental condition" throughout the criminal proceeding and that "[c]ounsel knew of this but failed to take the appropriate steps to assure that [p]etitioner was capable of making sane decisions." Supp. Mot. at 6. However, at the change of plea hearing, the Court asked petitioner about his mental health and whether he was taking any medications. Petitioner affirmed under oath that he was "in good physical and mental health," had not "been treated recently for any mental illness or addiction to narcotic drugs of any kind," and was not "under the influence of any medication, drug, alcohol, or any substance or suffering from any mental condition that would prevent [him] from fully understanding the charges against [him] and the consequences of [his] guilty plea." 9/7/2017 Transcript at 6. Further, defense counsel testified in his written response to the government's interrogatories that he and his investigator "repeatedly interviewed [petitioner] regarding his mental condition and medications," "obtained [petitioner's] prior medical history," and "retained a mental health professional to evaluate [petitioner] for any possible mental health condition, both past and present including the time(s) of the offenses." Dkt. 17-4 at 7. Neither the mental health professional nor defense counsel found that petitioner was unable to understand the nature and consequences of the proceedings against him or assist properly in his defense.
Furthermore, petitioner has not put forth any evidence indicating that the outcome of the proceedings would have been different had his counsel sought a competency determination. To the contrary, as indicated by defense counsel's statements and the mental health professional's evaluations, it is likely that had defense counsel sought a competency determination, petitioner would have been deemed competent to proceed.
Accordingly, the Court finds that petitioner was not denied his right to effective assistance of counsel based on his counsel's purported failure to seek a competency determination.
Petitioner contends that his counsel was ineffective because he failed to advise him of his right to appeal. Supp. Mot at 7. Defense counsel, however, indicated in his written response to the government's interrogatories that, prior to sentencing, petitioner was advised of his right to appeal his conviction if he believed the entry of his plea was involuntary. Dkt. 17-4 at 6. Defense counsel also explained, "At no time did [petitioner] indicate that his guilty plea was involuntary nor did I have any reason to suspect that the entry of his guilty plea was involuntary."
Petitioner also contends that he was prejudiced because his counsel failed to ask him whether he wanted to appeal and because his counsel failed to file an appeal. The Second Plea Agreement, however, includes a waiver of appeal of conviction and a limited mutual waiver of appeal of sentence. Opp'n at 14, citing PA ¶¶ 23-24.
Petitioner has also not put forth any evidence that defense counsel's failure to file an appeal has prejudiced him. Even if petitioner asked counsel to file an appeal and his counsel filed one, any appeal likely would have been dismissed given the waiver in the Second Plea Agreement. Accordingly, the Court finds that petitioner was not deprived of his right to effective assistance of counsel based on his attorney's purported failure to file an appeal.
Although petitioner requests an evidentiary hearing, the Court observes that it need not hold an evidentiary hearing when "the motion and the files and record of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. And when, as here, a motion is based on some alleged occurrences outside the record, no hearing is required if the allegations "viewed against the record, either fail to state a claim for relief or are `so palpably incredible or patently frivolous as to warrant summary dismissal.'"
In accordance with the foregoing, the Court
