STEVEN D. MERRYDAY, District Judge.
Segura-Rodriguez's motion to vacate under 28 U.S.C. § 2255 (Doc. 1) challenges the validity of his conviction for conspiring to possess with the intent to distribute cocaine while aboard a vessel, for which he is imprisoned for 236 months. The original motion to vacate asserts three grounds of ineffective assistance of counsel. Segura-Rodriguez amended his motion to vacate (Doc. 12) and, as he specifically states in his reply to the original motion to vacate, he "has withdrawn all issues except for the ineffective assistance of counsel issues regarding counsel's failure to insure that an adequate and accurate record of Segura-Rodriguez' cooperation with the government was presented to the court at the time of sentencing." (Reply at 1, Doc. 10) As a consequence, this action proceeds on the single claim of ineffective assistance of counsel alleged in the amended motion to vacate. (Doc. 12)
Although admitting the action's timeliness (Response at 6, Doc. 7 and at 2-3, Doc. 13), the United States argues that, as part of a plea agreement, Segura-Rodriguez waived his right to raise the ground asserted in the amended motion to vacate. Segura-Rodriguez is entitled to no relief because his claim is waived and because he fails to show that counsel rendered ineffective assistance.
Segura-Rodriguez was extradited to the United States from Columbia. Segura-Rodriguez and five co-conspirators were indicted for three counts of conspiring to possess with the intent to distribute five kilograms or more of cocaine. Segura-Rodriguez agreed to plead guilty and waived his right to appeal or otherwise challenge his sentence. In exchange the United States agreed (1) to dismiss both one count of conspiring to import five kilograms or more of cocaine and one count of conspiring to manufacture and distribute five kilograms or more of cocaine, (2) to support a three-level reduction for acceptance of responsibility, and (3) to support a sentence reduction based on Segura-Rodriguez's anticipated substantial assistance.
As part of his cooperation, Segura-Rodriguez met with agents several times. Segura-Rodriguez contends that defense counsel was ineffective for not ensuring that the district court knew about all of his assistance.
Segura-Rodriguez alleges that he was denied the ineffective assistance of counsel, a difficult claim to sustain. "[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting sentencing."), cert. denied, 546 U.S. 902 (2005). Segura-Rodriguez cannot circumvent Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
Strickland requires proof of both deficient performance and consequent prejudice. Strickland, 466 U.S. at 697 ("There is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds."). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." 466 U.S. at 690. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." 466 U.S. at 690.
Segura-Rodriguez must demonstrate that counsel's alleged error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." 466 U.S. at 691-92. To meet this burden, Segura-Rodriguez must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694.
Strickland cautions that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." 466 U.S. at 690-91. Segura-Rodriguez cannot meet his burden merely by showing that the avenue chosen by counsel proved unsuccessful.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. ... [T]he issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (counsel has no duty to raise a frivolous claim).
Segura-Rodriguez pleaded guilty. Although the Strickland standard controls a claim that counsel was ineffective for recommending that a client plead guilty, Hill v. Lockhart, 474 U.S. 52 (1985), Agan v. Singletary, 12 F.3d 1012 (11th Cir. 1994), the quantum of evidence needed to prove both deficient performance and prejudice is different. "[C]ounsel owes a lesser duty to a client who pleads guilty than to one who decided to go to trial, and in the former case counsel need only provide his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between accepting the prosecution's offer and going to trial." Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984). To prove prejudice, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. at 59.
In his plea agreement Segura-Rodriguez agreed to waive his "right to appeal [his] sentence or to challenge it collaterally on any ground" except under certain inapplicable situations. (Plea Agreement at 11-12, Doc. 9) When he entered his guilty plea, the Magistrate Judge specifically ensured that, under the terms of the appeal waiver, Segura-Rodriguez understood that he was waiving any right to challenge the district court's calculation of his sentence (Change of Plea Hearing at 19-21, Doc. 131):
After a recess during which the parties conferred about the maximum sentence possible under the terms of the extradition agreement with Columbia, the Magistrate Judge ensured that Segura-Rodriguez fully understood both his potential sentence and his waiver of the right to assert a claim of ineffective assistance of counsel based on the sentence (Change of Plea Hearing at 37-39, Doc. 131):
The Magistrate Judge ensured that Segura-Rodriguez knew that at sentencing the district judge was not bound by the sentencing recommendation in the plea agreement (Change of Plea Hearing at 16-17, Doc. 131):
The Magistrate Judge also ensured that Segura-Rodriguez knew that the district court calculates the sentence under the sentencing guidelines (Change of Plea Hearing at 41, Doc. 131):
A valid appeal waiver precludes an ineffective assistance of counsel challenge to the sentence. Williams v. United States, 396 F.3d 1340, 1342 (11th Cir.) ("[A] valid sentence-appeal waiver, entered into voluntarily and knowingly, pursuant to a plea agreement, precludes the defendant from attempting to attack, in a collateral proceeding, the sentence through a claim of ineffective assistance of counsel during the appeal waiver provision by disguising his challenge as a claim of ineffective assistance of counsel. "A contrary result would permit a defendant to circumvent the terms of the sentence-appeal waiver simply by recasting a challenge to his sentence as a claim of ineffective assistance, thus rendering the waiver meaningless." Williams, 396 F.3d at 1342. As a consequence, Segura-Rodriguez waived his right to challenge the calculation of his sentence, even under the guise of ineffective assistance of counsel.
Segura-Rodriguez's sole ground challenges the calculation of his sentence. Segura-Rodriguez alleges that defense counsel failed to ensure that the district court knew about all of his "substantial assistance." The appeal waiver precludes this ground even though disguised as a claim of ineffective assistance of counsel.
Segura-Rodriguez was advised when he changed his plea that moving for a reduction of sentence under §5K1.1 was solely within the government's discretion based on his substantial assistance. (Change of Plea Hearing at 18-19, Doc. 131):
The sentencing calculus produced an offense level 39 and a criminal history I. On the morning of sentencing the United States moved for a reduction of sentence under §5K1.1, requested a reduction of two levels, and explained the extent of Segura-Rodriguez's assistance. (Sentencing Hearing at 31-32, Doc. 133) Defense counsel provided further facts about Segura-Rodriguez's assistance and argued for a reduction of four levels. (Sentencing Hearing at 32-35, Doc. 133) The United States explained the reason for requesting a reduction of two levels. (Sentencing Hearing at 35-36, Doc. 133) The district court granted the motion under §5K1.1 and reduced the sentencing range from an offense level 39 (262-327 sentencing range) to 37 (210-262 sentencing range). Defense counsel argued for mitigation of sentence under § 3553(a) and requested a low-end sentence of 210 months. (Sentencing Hearing at 37-38, Doc. 133) When afforded an opportunity to express his views, Segura-Rodriguez offered no objection to counsel's representations about the extent of the substantial assistance. (Sentencing Hearing at 39, Doc. 133) Before pronouncing sentence, the district court discussed how a leader of a criminal conspiracy, such as Segura-Rodriguez, who has no criminal history could receive a disparately lower sentence than a low level conspirator would receive who has a criminal history. "I think that if we looked at his actual criminal history, his personal biography that is, and his association with people that he's associated with, he would qualify for so many forms of enhancement that he would clearly be looking at some sort of life sentence." (Sentencing Hearing at 41, Doc. 133) The district court opined that the facts in this case warrant a sentence at the top of the guidelines range, however, Segura-Rodriguez's cooperation justified a mid-range sentence. (Sentencing Hearing at 43, Doc. 133) Segura-Rodriguez received two sentence reductions based on his cooperation. Segura-Rodriguez's substantial assistance reduced his sentence (1) from the level 39 top-range of 327 months to the level 37 top-range of 262 months and (2) to the level 37 mid-range of 236 months. As a consequence, Segura-Rodriguez's substantial assistance provided a total reduction of 91 months, more than seven years.
Segura-Rodriguez contends that counsel failed "to do enough" to advise the district court about the extent of his cooperation. In his declaration (Doc. 9) supporting the amended motion to vacate, Segura-Rodriguez discloses more specifics about his meetings with agents during his de-briefings.
Accordingly, the motion to vacate under 28 U.S.C. § 2255 (Doc. 12) is
Segura-Rodriguez is not entitled to a certificate of appealability ("COA"). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Section 2253(c)(2) permits issuing a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." To merit a certificate of appealability, Segura-Rodriguez must show that reasonable jurists would find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because Segura-Rodriguez fails to show that reasonable jurists would debate either the merits of the claims or the procedural issues, Segura-Rodriguez is not entitled to a certificate of appealability and he is not entitled to appeal in forma pauperis.
Accordingly, a certificate of appealability is
