JULIE A. ROBINSON, District Judge.
This matter is before the Court on Petitioner Alfonso Rubio-Ayala's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Doc. 441). In his motion, Petitioner seeks relief on two grounds that he was denied effective assistance of counsel with respect to his plea negotiations and waiver. The Government has responded (Doc. 449). The Court held an evidentiary hearing on April 15, 2014. After the hearing the Government filed an unopposed Motion to Supplement Record (Doc. 455), which the Court grants. Counsel for Petitioner was granted additional time to review evidence, and has advised the Court that he does not intend to submit a supplemental brief. Having carefully reviewed the record and the arguments and evidence presented, the Court denies Petitioner's motion.
On April 15, 2009, Petitioner was indicted on forty-nine counts of methamphetamine trafficking offenses against nine defendants; a superseding indictment was filed on April 7, 2010, and contained 63 counts against seven defendants. In Count One, Petitioner was charged with conspiracy to possess with intent to distribute 500 grams or more of methamphetamine; the superseding indictment also included multiple counts of using a communication facility in committing and facilitating the conspiracy as well as distribution and possession of methamphetamine, conducting a financial transaction affecting interstate commerce, attempting to travel from Kansas to Arizona with the intent to promote, manage, establish and carry on the conspiracy, distribution of methamphetamine, and possession of firearms by illegal aliens.
On November 1, 2010, a jury trial commenced against Petitioner and his remaining co-defendant, Aden Molina.
Petitioner filed a direct appeal to the Tenth Circuit Court of Appeals, and that court granted the Government's motion to enforce the plea agreement and dismissed his appeal on June 23, 2011.
Petitioner filed this timely § 2255 Motion on October 29, 2012, alleging ineffective assistance with respect to his plea negotiations and waiver of post-petition conviction rights in the Plea Agreement on two grounds.
As requested, the Court takes judicial notice of the affidavits attached to the parties' respective briefs. Petitioner avers:
Stephen Kessler submitted an affidavit setting out his version of events leading up to Petitioner's rejection of several plea offers:
On April 15, 2014, the Court held an evidentiary hearing on the question of whether counsel was ineffective in assisting Petitioner in plea negotiations with the Government as well as in executing the waiver provisions in the Plea Agreement. Testimony was, for the most part, in alignment with what Petitioner and Mr. Kessler submitted in their respective affidavits. Petitioner testified that he moved to the United States from Mexico in 2001, and he does not speak or understand English well. He further testified that Mr. Kessler conferred with him about his case four times while he was held at CCA, for fifteen to twenty-minute sessions. Petitioner claims that he did not understand the evidence Kessler brought for him to look at and that he told Kessler that "it would be a lot better" for him if Kessler brought an interpreter to the out-of-court sessions. Petitioner claims that he has "no clue" what the sentencing Guidelines are, and that Kessler never explained that the drug amounts involved in the case could raise his sentence to life.
With respect to the Plea Agreement he entered after several days of trial, Petitioner testified that he asked Kessler for an interpreter, but was told there was no time and that the prosecutor could change his mind. Petitioner testified that Kessler read him the agreement in English and explained that he thought it was unlikely Petitioner would receive a life sentence because this was his first offense. Petitioner also testified that he did not understand that he was waiving his right to collaterally attack or appeal his conviction, that no one read the Agreement to him in Spanish, and that he would not have signed it if he had understood what he was giving up. Petitioner testified that he understood the firearms counts would be dismissed pursuant to the Plea Agreement, but did not understand that they could be included as relevant conduct at sentencing, going so far as to claim Mr. Kessler did not discuss relevant conduct with him at all.
On cross-examination by the Government, however, Petitioner admitted that during trial, there were two interpreters available the entire court day, including the morning he plead guilty. Petitioner also admitted that the Plea Agreement stated that he had read, understood and discussed the plea with counsel, that he signed under oath that the answers he gave were true and correct, that he was satisfied with his attorney's representation, that the agreement specifically stated that the maximum sentence he could receive was life imprisonment, and that counsel advised him on the nature of the charges and discussed the sentencing Guidelines. Petitioner acknowledged that the Court questioned him extensively on the circumstances of the Plea Agreement, including that the Court was not bound by the Agreement, that his sentence would be between ten years and life imprisonment, that certain factors could increase his sentence, that he could be responsible for the amount of drugs attributed to his co-conspirators and that could increase his sentence, and that he was waiving his right to appeal or collaterally attack his conviction. Petitioner further recalled that the Government had presented evidence against him and Molina at trial, including cash, guns and bags of methamphetamine, and that other plea deals had been offered before trial that required his cooperation as well as waiver of collateral attack. And finally, Petitioner admitted that all of the recorded conversations between him and his wife, co-defendant Gary Heath, and Agent Garmin were in English.
The Government offered as witnesses Special Agent John Shannon and Mr. Kessler. Agent Shannon testified that he was the co-case agent with Agent Garmin, and that the investigation of these criminal proceedings involved multiple wiretaps. The Government offered a summary of phone conversations between Petitioner and his wife, Heath and Garmin, which were all in English.
Mr. Kessler testified that he has been practicing law since 1974, and that a large part of his practice is devoted to criminal defense work. When he represented clients whose primary language was Spanish, it is Kessler's practice to use an interpreter if the defendant says he does not understand or prefers an interpreter or if it appears to him that the defendant is not understanding and that an interpreter could assist. Kessler was appointed to represent Petitioner at his first appearance before the magistrate judge in 2009 through his eventual plea and sentencing. Kessler testified that he visited Petitioner at least ten to twelve times at CCA, for thirty to sixty-minute sessions, and discussed the discovery provided by the Government, including transcripts of recorded conversations and photographs of evidence that implicated him. Kessler confirmed that Petitioner used an interpreter for all court proceedings, and that there was always an interpreter present for the numerous Spanish-speaking co-defendants who also appeared at various proceedings. In his private meetings with Petitioner, however, Kessler did not use an interpreter. Kessler explained that immediately after his appointment, he asked Petitioner if he needed an interpreter or a translator and Petitioner said no. Kessler recalled asking Petitioner on at least one later occasion if he needed an interpreter to help understand the discovery documents, and Petitioner indicated that he did not and that he could understand and discuss what Kessler was going over with him. Kessler discussed the total drug amounts that might be ascribed to Petitioner, that those drug amounts might result in a life sentence, and that if he did not cooperate he would receive a substantial sentence, somewhere between thirty years to life. Kessler testified that Petitioner's questions about and reactions to the discussion were relevant and appropriate, and that there was never any indication during his discussions about evidence, the offers to plea before trial, the Plea Agreement or otherwise that Petitioner did not understand what Kessler told him or that they were not communicating.
With respect to the plea offers before trial, Kessler confirmed that each offer extended included an appellate and collateral attack waiver provision, which he discussed with Petitioner, and which he thought Petitioner understood. Kessler testified that the Court also went over the waiver at the plea hearing, at which time an interpreter was used. Kessler further verified that any sentencing reduction in the plea offers extended before trial were largely dependent upon Petitioner's cooperation, specifically his truthful and complete information and testimony about co-defendant Rito Vazquez-Garcia, which could have resulted in the Government filing a § 5K1.1 motion under the Sentencing Guidelines. Kessler also clarified that one of the draft plea offers before trial did not require or anticipate cooperation by Petitioner, but that offer did not recommend any specific sentence and contemplated a Guideline sentence.
Kessler recalled that after several days of trial, which included testimony adverse to Petitioner, Petitioner asked him about a plea, and Kessler then approached the Government. Kessler denied Petitioner's allegation that he told him a life sentence was extremely unlikely if he entered into the plea, and that instead, he told Petitioner that the argument for a lower sentence would be stronger if Petitioner plead guilty. Kessler testified that he explained to Petitioner that his leadership role might enhance his sentence as well as the role that relevant conduct would have on his sentence. Although he could not recall specifically discussing the effect possession of firearms would have on his sentence, Kessler denied that he led Petitioner to believe that dismissal of those counts would eliminate firearms from consideration in determining his sentence. Kessler denied Petitioner's allegation that he requested an interpreter prior to entering the Plea Agreement and testified that he would have provided an interpreter had Petitioner requested one, noting that two interpreters were present in court that morning, ready for trial to start. Kessler conceded that the agreement was never read to Petitioner in Spanish until the plea hearing, but that Petitioner had indicated to Kessler that he understood the terms and conditions of the agreement. Kessler stated that he did not feel pressured or rushed when discussing the agreement with Petitioner and that the plea he entered into was very similar to the prior offers, without the cooperation requirement, and allowed the parties to argue sentencing. Kessler confirmed that during the plea colloquy with the Court, there was nothing discussed regarding sentencing exposure or factors that he had not already discussed with Petitioner. Kessler testified that he specifically discussed with Petitioner how the Guidelines applied, as well as the factors that could raise or lower the adjusted offense level. Although Kessler explained the law and thought that Petitioner understood, Petitioner did not agree that he should be found a leader of the conspiracy or held responsible for drugs possessed by co-conspirators. Kessler confirmed that he had listened to the conversations between Petitioner and his wife, Gary Heath, and Agent Garmin, and that all of them were in English. Although he knew there were large amounts of drugs involved in the case, Kessler testified that he did not think it was more than likely that Petitioner would receive a life sentence, but thought it more likely he would receive a sentence of twenty to thirty years.
Under § 2255(a):
According to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts:
The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion. ...
An evidentiary hearing must be held on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief."
A district court may grant relief under § 2255 if it determines "that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack."
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence."
Second, a defendant must also show that his counsel's deficient performance actually prejudiced his defense.
Although Petitioner waived his right to appeal or collaterally attack his sentence in his Plea Agreement, such a waiver "does not waive the right to bring a § 2255 petition based on ineffective assistance of counsel claims challenging the validity of the plea or the waiver."
The Supreme Court has recently issued two decisions addressing the question of ineffective assistance of counsel with regard to a defendant's rejection of a plea agreement. In Missouri v. Frye, the Court recognized that the right to effective assistance of counsel extends to the plea bargaining process, and held that counsel's failure to inform his client of a plea offer may constitute ineffective assistance of counsel.
This case arises in a different context from that addressed in Frye and Lafler, as Petitioner does not contend that he was uninformed of the plea agreement offers or that he was given incompetent advice to reject the offers and proceed to trial. Instead, Petitioner argues that during initial plea negotiations, the Government offered him a fourteen-year plea deal that did not require his cooperation, which he rejected because Mr. Kessler ineffectively failed to explain to him the legal principle of co-conspirator liability and that he did not understand the evidence against him because of his inability to understand English.
After considering the testimony of the parties, the Court finds that Mr. Kessler's representation of Petitioner was objectively reasonable because he communicated the various plea offers, provided all relevant facts, and correctly conveyed to Petitioner the likelihood of his conviction and the consequences of proceeding to trial. Kessler communicated the Government's offers, including the offer that did not require Petitioner's cooperation, in a timely manner, and gave Petitioner advice that it was in his best interest to accept.
The Court rejects Petitioner's assertion that he did not understand what it meant to be a co-conspirator and that he asked for, but was not provided, an interpreter for meetings with counsel. On the contrary, the evidence at the hearing shows that Petitioner understood and spoke English well enough to conduct multiple drug transactions over the phone, and declined Kessler's offer to have an interpreter at the meetings outside of court.
The Court further finds that Mr. Kessler's conduct did not have a prejudicial effect on Petitioner's case. As discussed above, prejudice can only be established if the end result would have been more favorable to the defendant in the form of a lesser charge or a shorter sentence.
Petitioner ultimately entered into a Plea Agreement with a provision waiving his right to collaterally attack or appeal his sentence. Petitioner claims that Mr. Kessler ineffectively failed to explain the waiver of his appellate rights and he did not understand the waiver when he entered his plea. Petitioner requests the Court reinstate his appellate rights. Petitioner's claim fails both prongs of Strickland.
First, the Court does not find credible Petitioner's testimony that Mr. Kessler failed to discuss the waiver provision with him before he entered the plea. The record shows that Petitioner received a number of plea offers before trial, all of which contained the standard waiver provision, and the Court does not accept Petitioner's allegation that Kessler failed to explain the waiver in connection with any of these offers. Second, even if true, Petitioner suffered no prejudice as a result of this failure because the plea colloquy sufficiently informed him of the rights he was waiving and ensured that his waiver of those rights was knowing and voluntary.
Effective December 1, 2009, Rule 11 of the Rules Governing § 2255 Proceedings requires the Court to grant or deny a certificate of appealability ("COA") when making a ruling adverse to the petitioner. "A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right."
