KIRTAN KHALSA, Magistrate Judge.
THIS MATTER is before the Court on Defendant/Petitioner Carlos Zamudio-Beltran's ("Defendant") Motion Pursuant to 28 U.S.C. § 2255 ("Petition") to set aside his conviction and sentence, which he filed on January 8, 2014. (Doc. 1.) Plaintiff/Respondent the United States of America ("the Government") responded in opposition to the Petition on February 20, 2014. (Doc. 4.) Defendant filed a reply in support of the Petition on April 15, 2014. (Doc. 11.) Chief United States District Judge M. Christina Armijo referred this matter to the undersigned on September 22, 2014. (Doc. 13.)
In November 2010, the Government charged Defendant with a violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), i.e., possession with intent to distribute one kilogram and more of heroin. Defendant subsequently entered into a plea agreement, pled guilty, and was sentenced to 210 months of incarceration. He now seeks to have his conviction and sentence set aside, arguing that his trial counsel provided him with ineffective assistance in: (1) negotiating his plea agreement and concomitant appeal waiver; (2) failing to adequately investigate the case before advising him to enter a guilty plea; and, (3) failing to advise him of the specific immigration consequences of entering a guilty plea. The Government responds that Defendant's counsel was not ineffective, that counsel's alleged errors did not prejudice Defendant's defense, and that the appellate waiver in Defendant's plea agreement bars some of his collateral attacks on his conviction and sentence. The Government submitted the affidavit of Defendant's trial counsel, David Serna, in support of its arguments.
The Court has meticulously reviewed all of the pleadings and attachments in this civil proceeding and in the underlying criminal case, Cr. No. 10-3352 MCA. The Court has also examined the transcripts of the plea hearing before then-Chief United States Magistrate Judge Lorenzo Garcia (CR Doc. 56)
On November 18, 2010, the Government charged Defendant via criminal complaint with possession with intent to distribute one kilogram and more of a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). (CR Doc. 1.) Also on November 18, 2010, the Court appointed Assistant Federal Public Defender John Butcher to represent Defendant. (CR Doc. 4.) The next day, the Court ordered Defendant to be detained pending trial. (CR Docs. 7, 8.) Attorney David Serna entered his appearance as Defendant's retained counsel on November 30, 2010, whereupon the Court entered an Order withdrawing Mr. Butcher as defense counsel. (CR Docs. 9, 11.) On December 15, 2010, a grand jury returned a one-count indictment charging Defendant with possession with intent to distribute one kilogram and more of a mixture and substance containing a detectable amount of heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). (CR Doc. 14.) Defendant pled not guilty to the charge at his arraignment on December 21, 2010. (CR Doc. 16.)
On June 27, 2011, following a series of continuances granted at Defendant's request, Defendant consented to plead guilty in a felony case before a magistrate judge (CR Doc. 35), and pled guilty to the offense charged in the indictment pursuant to a plea agreement. (CR Docs. 34, 36, 56.) In the plea agreement, Defendant acknowledged that he was in fact guilty of the charged offense, that he recognized and accepted responsibility for his criminal conduct, and that, should he elect to proceed to trial, the Government could prove facts sufficient to establish each element of the crime of possession with intent to distribute one kilogram and more of heroin beyond a reasonable doubt. (CR Doc. 36 at 3-4.) Defendant specifically admitted the following facts, which he declared under penalty of perjury to be true and correct:
(Id. at 3-4.) Defendant agreed "that the Court may rely on any of these facts . . . to determine the Defendant's sentence." (Id. at 4.)
In his plea agreement, Defendant affirmed that he understood the minimum and maximum sentence the Court could impose to be a term of imprisonment of not less than ten (10) years nor more than life. (Id. at 2). Defendant also acknowledged that, although the federal sentencing guidelines are advisory, the Court is required to consider them in determining his sentence. (Id. at 3.) To that end, Defendant and the Government entered into the following non-binding stipulations pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B):
(Id. at 4-6.) However, apart from these stipulations, Defendant reserved the right to "assert any . . . argument with respect to the sentence to be imposed," including regarding the applicability of U.S.S.G. §§ 2D1.1(b)(1) and 5C1.2 and 18 U.S.C. § 3553(f). (Id. at 7.) In the plea agreement, Defendant acknowledged that, regardless of any stipulations, his sentence was solely within the Court's discretion after it reviewed the PSR, that the Court could accept or reject any one or more of the stipulations, and that the Court had the discretion to depart from the advisory guideline sentence. (Id.)
The plea agreement also addressed the immigration consequences of Defendant's plea, stating:
(Id. at 9-10). Significantly, in addition to this general acknowledgement, Defendant specifically and expressly consented to his removal from the United States upon his release from prison. Thus, the plea agreement states that
(Id. at 10.)
Defendant's plea agreement also included a waiver of appellate rights, which states:
(Id.) Finally, Defendant agreed and represented that his
(Id. at 11.)
On June 27, 2011, the Assistant United States Attorney, Defendant, and Defendant's counsel all signed the plea agreement. The following paragraph appears directly above Defendant's signature:
(Id. at 13.) Mr. Serna, in turn, signed his name under the following paragraph:
(Id.)
In his affidavit, Mr. Serna explained his recommendation that Defendant accept the foregoing plea agreement, attesting that
(Doc. 5-3 ¶¶ 3-5.)
Throughout his change of plea hearing before Judge Garcia on June 27, 2011, the Court's sworn Spanish-language interpreter provided simultaneous interpretive services to Defendant. (CR Doc. 34; CR Doc. 56 at 2.) Defendant swore to tell the truth at the hearing. (CR Doc. 56 at 3.) Judge Garcia advised Defendant of his presumption of innocence, his right to proceed to trial, and the rights that accompany a jury trial, (id. at 11-13), and asked Defendant his birth year, where he was born, and the extent of his education. (Id. at 5.) Defendant answered that he was born in Mexico in 1975, was a Mexican citizen, and had not had any schooling.
Defendant indicated that he had had sufficient time to consult with Mr. Serna about his decision to plead guilty, that Mr. Serna had carefully reviewed the entire plea agreement with him and explained its provisions to him, that Mr. Serna had answered all of his questions to his satisfaction, that he was satisfied with Mr. Serna's legal representation and advice, and that he had no complaints about Mr. Serna or the quality of the legal representation he had received. (Id. at 6-8.) Defendant affirmed to Judge Garcia that Mr. Serna had: (1) told him what evidence the Government would have to present and prove before he could be convicted of the charged offense; (2) discussed with him defenses that may be available to him; and, (3) investigated the charge by interviewing Defendant, reviewing and disclosing to him the Government's evidence including witness statements and laboratory reports, and trying to find witness testimony or other evidence that would be helpful to his defense if he proceeded to trial. (Id. at 7.)
Of particular note, Judge Garcia informed Defendant
(CR Doc. 56 at 10-11.) Judge Garcia also informed Defendant, and Defendant confirmed he understood, that he would be giving up his right to appeal and collaterally attack his sentence and conviction, unless Mr. Serna was "constitutionally ineffective." (Id. at 13.) Finally, Judge Garcia particularly informed Defendant that pleading guilty had
(Id. at 10.) After a thorough plea colloquy, Defendant entered a plea of guilty to the crime charged. (Id. at 14-15.) The Court accepted Defendant's plea, finding it to be "knowingly, willingly and voluntarily made." (Id. at 15.) Before the hearing closed, Mr. Serna noted, and the Court confirmed, that Defendant had reserved his right to "assert his position regarding the correct application of Section [2D1.1] of the Sentencing Guidelines, Section [5C1.2] of the Sentencing Guidelines and the application of 18 U.S.C. 3553(f)(1) through (5)." (Id. at 16-17.)
On December 6, 2011, Defendant filed Sealed Objections to the PSR. (CR Doc. 38.) The Government filed a Sealed Response in opposition to these objections on December 19, 2011. (CR Doc. 39.) Judge Black began sentence proceedings on March 1, 2012, at which Defendant was present and represented by Mr. Serna. (CR Doc. 52 at 2.) At the hearing, Mr. Serna argued Defendant's theory of the case regarding sentencing. (See generally id.) Specifically, Mr. Serna contended that Defendant was a minor participant in the drug trafficking organization at issue, and that his sole role was to reside in the house where the organization stored drugs, packaging materials, money, and a firearm. (Id. at 4, 8-10.) Mr. Serna asserted that Defendant told law enforcement officers the drugs and money found in the residence were his to prevent his children from being removed from his wife's custody. (Id. at 4-5.) Mr. Serna argued that Defendant's cousin, Celido Zamudio-Beltran, actually owned the drugs and firearm found in the house. (Id. at 5.) However, Mr. Serna acknowledged that he had contacted Celido Zamudio-Beltran's attorney, who told him "that Celido did not want to take the blame for that." (Id.) Judge Black then observed that
(Id.) Mr. Serna also described the information Defendant provided to the Government at a debriefing on February 28, 2011. (Id. at 5-7.)
Because the Government disputed Defendant's position regarding his role in the drug trafficking organization, Judge Black scheduled an evidentiary hearing for March 5, 2012. (Id. at 12-15.) At the hearing, Judge Black heard the testimony of two witnesses, Defendant and DEA Agent Christopher Godier. (CR Doc. 53 at 2, 32-33.) The undersigned has thoroughly reviewed the transcript of this hearing, which is of record, and will not describe all of its particulars here. Inter alia, however, Defendant testified that: (1) his name was on the lease agreement for the residence where the drugs and money were found, and he paid the rent of $1,200 per month, but with money belonging to Celido Zamudio-Beltran and Jesus Gonzalez Ramirez, also known as "El Chino" (id. at 4, 9-10, 17, 29-30); (2) he did not own or exercise control over the heroin, firearm, or money found at the residence (id. at 5-6, 9, 13, 30-31); (3) his supervisor in the drug trafficking organization was his cousin, and his cousin's supervisor was "El Chino" (id. at 6-7); (4) he supervised no one in the organization (id. at 6); (5) the funds for a bank deposit of $27,000 that he made were from his agricultural harvest in Mexico (id. at 10-11, 27); (6) his annual income as a farmer was $9,000 (id. at 27); (7) he knew that, in the closet of the master bedroom where he slept, there was an accordion file that contained the lease agreement for the residence and the titles for the two vehicles parked there, as well as an assault rifle, boxes of U.S. currency, and a jacket containing cocaine for his personal use (id. at 3, 16-19); (8) he knew that a heat sealer, plastic baggies, a digital scale, and keys to the residence and one of the vehicles were in his master bedroom and bath (id. at 19-20); (9) he knew that keys to the other vehicle and fourteen pounds of "cut" were elsewhere in his residence (id. at 20-22); and, (10) he knew that about $160,000 in cash, about three (3) kilograms of heroin, and about four (4) kilograms of "cut" were in the vehicles parked at the residence. (Id. at 25-26.)
Agent Godier, in turn, testified that Defendant's residence was "a nice place. Nice home, custom front door, had nice furnishings, exercise room," and was "not consistent with what I would normally find in a stash house." (Id. at 34.) In contrast, he described the condition of a stash house in a related case
After the presentation of evidence, Judge Black found that Defendant "was the local leader, at least, of the organization," and that "the PSR is substantially correct on all counts." (Id. at 46.) He specifically found Defendant's "minor role" theory "to be not credible, not [as to] the gun and the narcotics." (Id. at 49-50.) Also, counsel argued several other points relevant to Defendant's sentencing, including whether Defendant possessed over three (3) kilograms of heroin, whether he possessed the firearm found at the residence, whether he had maintained a drug house, and whether he met the requirements for a reduction of his sentence pursuant to 18 U.S.C. § 3553(f). (Id. at 46-51.)
At the conclusion of the hearing, Judge Black accepted Defendant's plea and found as follows:
(Id. at 51-52.) Judge Black sentenced Defendant to a term of imprisonment of 210 months, and included, inter alia, the special condition that
(Id. at 52.)
Pursuant to 28 U.S.C. § 2255, a federal prisoner who
28 U.S.C. § 2255(a). Relief is available under Section 2255 only if "the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979) (internal quotation marks and citation omitted). The court must presume "that the proceedings leading to the conviction were correct"; the burden is on the petitioner to demonstrate otherwise. Klein v. United States, 880 F.2d 250, 253 (10
In his Petition, Defendant asserts that his trial counsel was ineffective in negotiating his guilty plea, including the appeal waiver in his plea agreement. Defendant alleges five deficiencies in his counsel's performance: (1) failure to adequately investigate Defendant's role in the offense pre-plea (Doc. 1 at 4, 6-9); (2) failure to file substantive pre-trial motions (id. at 2-3); (3) misrepresentation of the sentence Defendant would receive if he entered the plea (id. at 3); (4) failure to "negotiate away" the appeal waiver in the plea agreement (id. at 4); and, (5) failure to explain the immigration consequences Defendant faced if he entered the plea. (Id. at 9-14.) Defendant requests an evidentiary hearing at which he contends he "will present evidence that (1) his lawyer provided ineffective assistance of counsel in the negotiation of the plea . . ., and (2) but for this deficient performance, there is a reasonable likelihood that the outcome of these proceedings would have been different." (Id. at 6, 13-14.)
As an initial matter, the Government urges the Court to decline to review some of Defendant's claims because they fall within the scope of his waiver of appellate rights. (Doc. 4 at 5-14.) Defendant counters that he has not waived his right to collateral review of the issues he has raised, and that the appellate waiver should not be enforced because his attorney was ineffective in negotiating the plea agreement and waiver. (Doc. 11 at 1-9.) Given the importance of the plea process to the criminal justice system, federal courts generally enforce plea agreements and concomitant waivers of appellate rights "where the waiver is expressly stated in the plea agreement and where both the plea and the waiver were knowingly and voluntarily made." United States v. Cockerham, 237 F.3d 1179, 1183 (10
The Sixth Amendment right to effective counsel extends to the plea process. Padilla v. Kentucky, 559 U.S. 356, 373 (2010). For a petitioner to succeed on a claim of ineffective assistance of counsel, he must demonstrate both that: (1) "counsel's representation fell below an objective standard of reasonableness"; and, (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see also Hill v. Lockhart, 474 U.S. 52, 57-58 (1985) (applying Strickland to plea process). Where a petitioner has pled guilty in the underlying criminal case, to prevail in his collateral attack he must show both that: (1) his attorney's performance fell outside "the range of competence demanded of attorneys in criminal cases," McMann v. Richardson, 397 U.S. 759, 771 (1970); and, (2) he was prejudiced because "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, 474 U.S. at 59. In applying the Strickland test to ineffective assistance of counsel claims, the Court "may address the performance and prejudice components in any order, but need not address both if [the defendant] fails to make a sufficient showing of one." Cooks v. Ward, 165 F.3d 1283, 1292-93 (10
"A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. A court's review of counsel's performance is "highly deferential," Byrd v. Workman, 645 F.3d 1159, 1168 (10
Although a petitioner need not show that he would have prevailed at trial to demonstrate prejudice under Strickland, his prospects of succeeding inform the Court's view of whether he would have rejected a plea and gone to trial. United States v. Clingman, 288 F.3d 1183, 1186 (10
United States v. Broce, 488 U.S. 563, 569 (1989). "The longstanding test for determining the validity of a guilty plea is `whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill, 474 U.S. at 56 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). The Court will examine each of the alleged deficiencies in Defendant's trial counsel's performance in light of the foregoing standards.
"[S]trategic 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." Strickland, 466 U.S. at 690-91. "In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. In ineffective assistance of counsel cases challenging convictions based on a guilty plea,
Hill, 474 U.S. at 59. This assessment "will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial." Id. "[T]hese predictions of the outcome at a possible trial . . . should be made objectively, without regard for the idiosyncrasies of the particular decisionmaker." Id. at 59-60 (internal quotation marks and citation omitted).
Defendant argues that his trial counsel was ineffective because counsel failed to properly investigate the strengths and weaknesses of the Government's case before advising him to enter a guilty plea. (Doc. 1 at 6.) Defendant asserts that "there is a reasonable likelihood that if [his] trial counsel had conducted a proper pre-trial investigation to test the Government's case, the plea would have taken a very different shape, or [he] would have rejected a plea and insisted on a trial." (Id. at 8-9.) Specifically, Defendant contends that his counsel failed to adequately investigate his claims that he was a minor player in the conspiracy at issue, that his cousin Celido Zamudio-Beltran was actually his boss, not the other way around as the Government believed, and that the actual leader of the organization was "El Chino." (Id. at 6-7.) Defendant asserts that, "[h]ad a pre-plea investigation been properly conducted, [Defendant] would have been able to show that he did not have a leader/organizer
The actual facts of the case belie these arguments. First, Mr. Serna plainly did conduct a reasonable pre-plea investigation of Defendant's claims regarding his role in the drug trafficking organization. (Doc. 5-3 ¶¶ 5-7.) "[O]n numerous occasions, [Mr. Serna] asked [Defendant] for the names of any people who could demonstrate that he was a minor player in this case." (Id. ¶ 6.) In response, Defendant identified only Celido Zamudio-Beltran. (Id.) Because Celido Zamudio-Beltran was a defendant in a related case and represented by counsel, Mr. Serna could not ethically speak to him directly to determine whether he would corroborate Defendant's claims. (See CR Doc. 18.) Instead, Mr. Serna approached Celido Zamudio Beltran's first attorney, Erlinda Johnson,
The objective evidence also contradicts Defendant's claim that he played a minor role in the drug trafficking organization. Defendant lived in a "nice," well-furnished home with a custom door and an exercise room. (CR Doc. 53 at 34.) In contrast, other individuals involved in the organization resided in a typical "stash house," i.e., a dirty home with "no real furniture." (Id. at 33-34.) Defendant's home was leased in his and his wife's names, and Defendant paid the rent, although he claims he did so with others' money. (Id. at 9-10, 17.) At the time of his arrest, Defendant was found in possession of, inter alia, a large quantity of U.S. currency, an assault rifle, about 18 pounds of cutting agent, a heat sealer, packaging material, a digital scale, and the titles and keys to two vehicles, including a Honda Accord containing about $490,000 in U.S. currency, about six kilograms of heroin, and a quantity of methamphetamine. (CR Doc. 36 at 3-4, 8-9; CR Doc. 52 at 12-13; CR Doc. 53 at 16-23, 25-26.)
Both Mr. Serna and Defendant presented Defendant's claims about his role in the offense to the Government during pre-plea negotiations and a debriefing with the prosecutor and case agents. (Doc. 5-3 ¶¶ 7-8.) However, the Government did not believe Defendant was being truthful, and as a result declined to support a safety-valve reduction. (Id.; CR Doc. 52 at 10-13.) That the Government was presented with Defendant's claims pre-plea and found them to be incredible in light of all the evidence demonstrates the fallacy of Defendant's claim that he would have been offered a more favorable plea had Mr. Serna conducted additional pre-plea investigation. Importantly, Defendant has identified absolutely no evidence that Mr. Serna could have but failed to uncover before Defendant entered into the plea agreement, that would have demonstrated that he played a lesser role in the offense. Clingman, 288 F.3d at 1187 (dismissing appeal where, inter alia, "defendant's habeas counsel failed to articulate a single specific fact to support the alleged defense in the briefs he submitted").
The outcome of the evidentiary hearing Judge Black held before sentencing reinforces the conclusion that additional pre-plea investigation by Mr. Serna would have availed Defendant nothing. At the hearing, Defendant testified to the information that he claims Mr. Serna failed to investigate, i.e., that he played a minor role in the drug trafficking organization and that his cousin and "El Chino" were his bosses and owned the incriminating items found at his residence. (CR Doc. 53 at 5-10, 13.) Based on the totality of the evidence presented, Judge Black found Defendant's testimony not to be credible. (Id. at 49-50.) For all of the above reasons, applying "a heavy measure of deference to counsel's judgments," and viewing his investigative decisions in light of the circumstances presented, the Court proposes to find that Mr. Serna conducted a pre-plea investigation well within the range of competence demanded of criminal defense attorneys. Strickland, 466 U.S. at 691; McMann, 397 U.S. at 771. Any decision not to conduct further investigation was entirely reasonable under the circumstances.
In addition, Defendant has failed to show a reasonable probability that, but for his counsel's failure to conduct a more thorough pre-plea investigation, the result of the proceedings would have been different. Strickland, 466 U.S. at 694. Defendant has made vague allusions to "weaknesses" in the Government's case, but, as noted above, has failed to point to any actual evidence that Mr. Serna could have but failed to discover that would have shown that he played a lesser role in the offense. (Doc. 1 at 4.) He has failed to identify any witnesses that Mr. Serna should have interviewed, any documents or physical evidence he should have inspected, or any other evidence Mr. Serna did not pursue that would have supported Defendant's theory of the case at sentencing. In the absence of such a showing, the Court proposes to find that Defendant has plainly failed to meet his burden under Strickland to demonstrate either that his trial counsel conducted a deficient investigation, or that any alleged deficiencies prejudiced his defense. Strickland, 466 U.S. at 687-88. The Court therefore recommends that Defendant's claims based on his trial counsel's pre-plea investigation be dismissed.
Defendant next claims that his trial counsel provided him with ineffective assistance because counsel filed no motions in the case, except continuance motions and objections to the PSR. (Doc. 1 at 2-3, 8.) However, Defendant has utterly failed to show either that his counsel's failure to file substantive pre-trial motions fell outside the range of competence demanded of criminal defense attorneys, or that this failure prejudiced his defense in any way. Strickland, 466 U.S. at 687; McMann, 397 U.S. at 771. Indeed, Defendant never even indicates what kinds of motions he claims his counsel ought to have filed, merely referring vaguely to "pre-trial motions of various sorts." (Doc. 1 at 8.) This is consistent with Mr. Serna's testimony that he knew of no "substantive motions [he] could or should have filed prior to trial," particularly in light of the facts that officers found large amounts of drugs and U.S. currency in Defendant's home pursuant to valid search warrants, and Defendant admitted, following Miranda warnings in Spanish, that the drugs and money were his. (Doc. 5-3 ¶¶ 3, 5.) Nor does Defendant ever explain how "pre-trial motions of various sorts" would have had any likelihood of changing the outcome of the case. In these circumstances, it is plain that Defendant's trial counsel did not render ineffective assistance in failing to file substantive pre-trial motions, that this failure did not prejudice Defendant's defense, and that Defendant's claims on this basis should be dismissed.
Defendant next claims that defense counsel misrepresented the length of the sentence he would receive if he pled guilty. (Doc. 1 at 3.) Specifically, Defendant contends that counsel told him he would be exposed to a sentence of "ten years or lower." (Id.) However, Defendant's sworn statements at the plea colloquy, and his signed plea agreement, directly contradict this contention. The plea agreement explicitly states that Defendant understood the minimum and maximum sentence the Court could impose to be a term of imprisonment of not less than ten (10) years nor more than life. (CR Doc. 36 at 2.) Moreover, in the agreement, Defendant expressly acknowledged that his final sentence was solely within the Court's discretion after it reviewed the PSR; that the Court could accept or reject any stipulations regarding sentencing; and, that the Court had the discretion to depart from the advisory guideline sentence. (Id. at 7.) Defendant also acknowledged that "[t]here have been no promises from anyone as to what sentence the Court will impose." (Id. at 11.)
Likewise, at Defendant's plea hearing, Judge Garcia specifically informed Defendant that he faced a minimum term of ten (10) years to a maximum term of life imprisonment if he pled guilty. (CR Doc. 56 at 9-10.) Judge Garcia asked Defendant if he understood the penalties he was facing, and whether his attorney had "reviewed with [him] carefully the entire [p]lea agreement" and "explain[ed] its various provisions to [him]." (Id. at 6.) Defendant answered "yes" to these questions. (Id.; see also Doc. 5-3 ¶ 11 (Mr. Serna "went over every line [of the plea agreement] with [Defendant] and ascertained that he understood all of it.").) The Court confirmed that counsel had explained the sentencing guidelines and their potential application to Defendant, and informed Defendant that "[t]he sentence imposed by Judge Black may differ from the estimate given [him] by Mr. Serna" and that he would not able to withdraw his plea even if Judge Black imposed a penalty more severe than he anticipated. (CR Doc. 56 at 9-11.) Defendant affirmed under oath that he understood this information. (Id.) At no point during the hearing did Defendant claim that his attorney had misadvised him as to the sentence he would receive, despite ample opportunity to do so. (See generally id.)
"Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Blackledge v. Allison, 431 U.S. 63, 74 (1977). The "truth and accuracy" of a defendant's statements during the plea hearing "should be regarded as conclusive in the absence of a believable, valid reason justifying a departure from the apparent truth of his Rule 11 statements." Hedman v. United States, 527 F.2d 20, 22 (10
On the record before the Court, it is beyond dispute that Defendant was fully advised of the consequences of pleading guilty, including that he would receive a term of imprisonment of not less than ten (10) years nor more than life, before he entered his guilty plea. Defendant's ex post facto, self-serving statements that his trial counsel misled him about the length of the sentence he would receive are
Runge v. United States, 427 F.2d 122, 126 (10
The Court further proposes to find that, even if counsel had misestimated Defendant's potential sentence pre-plea, Defendant has failed to show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. As noted above, although a defendant does not need to show that he would have prevailed at trial, his prospects of succeeding inform the Court's view of whether he would have rejected the plea and gone to trial. Clingman, 288 F.3d at 1186. Here, had Defendant gone to trial, his conviction was all but certain. As Mr. Serna temperately observed, the Government had a "strong case" against Defendant, which included much concrete objective evidence and his own admission of guilt. (Doc. 5-3 ¶ 3.) Mr. Serna further attests that Defendant "never professed his innocence to me and never indicated that he wanted to go to a jury trial. In fact, [Defendant] consistently pressed me to obtain a plea bargain for him." (Id. ¶ 4.) Then, had Defendant gone to trial and been convicted, he would have been sentenced to a mandatory term of life imprisonment, a sentence considerably longer than the 210 months he received by pleading guilty. (Doc. 5-4 at 3.) In these circumstances, the Court proposes to find it incredible that, but for counsel's alleged misrepresentation of his potential sentence, Defendant would have rejected the plea and gone to trial. See also United States v. Viera, 674 F.3d 1214, 1220 (10
Defendant seems to suggest that his counsel's request for a much lower sentence than he ultimately received is somehow indicative of counsel's ineffective assistance. (Doc. 1 at 3, 8.) However, setting aside a guilty plea simply because the district judge rejected a defense counsel's sentencing request would completely undermine the Court's and the parties' fundamental interest in the finality of guilty pleas, and would turn habeas review on its head.
United States v. Timmreck, 441 U.S. 780, 784 (1979). For these reasons, the Court proposes to find that Defendant is plainly not entitled to relief based on his claim that his trial counsel misrepresented the sentence he would receive if he pled guilty, and recommends dismissal of these claims.
Defendant next argues that it was not in his best interest for his counsel to "waive the opportunity to litigate . . . sentencing factors at the appellate level, where full briefing and oral argument, in addition to review by a panel of three appellate judges and their law clerks, would have provided a meaningful chance for [Defendant] to contest these sentencing factors and potentially reduce his sentence significantly."
Trial counsel negotiated a very favorable plea agreement for Defendant. The plea agreement prevented Defendant from being charged with possessing the assault rifle found in his bedroom closet in violation of 18 U.S.C. § 924(c). The Government has made clear that, had the plea agreement not been negotiated, it would have sought to add a Section 924(c) charge, subjecting Defendant on conviction to an additional five (5) years of imprisonment. (Doc. 4 at 13-14; Doc. 5-3 ¶ 8); 18 U.S.C. § 924(c)(1)(A)(i). In addition, had he not entered into the plea agreement, Defendant would have lost the benefit of stipulations to an offense level of 34 and a three-level reduction for acceptance of responsibility.
As to Defendant's argument that Mr. Serna should have "negotiated away" the appellate waiver in the plea agreement, the Government has been clear that it would have never offered him a plea agreement without it. (Doc. 4 at 14 ("At no time was the United States willing to enter into an agreement wherein there was no waiver of appeal rights."); Doc. 5-3 ¶ 9 ("The prosecutor was never willing to negotiate away the [appeal] waiver contained in [Defendant's] plea agreement.").) Then, it is highly unlikely that Defendant would have gone to trial and been acquitted, or, if convicted, would have received a lesser sentence than he actually received under the plea agreement. In these circumstances, Mr. Serna's strategic recommendation that Defendant accept the appellate waiver to get the benefit of the plea agreement is "virtually unchallengeable." Strickland, 466 U.S. at 690-91; United States v. Rodriguez-Rivera, 518 F.3d 1208, 1216-17 (10
Defendant's last argument is that his trial counsel was ineffective because he failed "to provide specific advice . . . regarding the immigration consequences of pleading guilty." (Doc. 1 at 9.) Specifically, Defendant asserts that his counsel "failed to ascertain" his immigration status, "failed to determine the specific effect" of Defendant's plea on that status, and failed to provide Defendant with "specific and direct advice as to the immigration consequences of pleading guilty to the [charged] offense." (Id. at 9-10). These alleged failures, according to Defendant, prevented him from being "fully aware of the consequences of pleading guilty." (Id. at 10.) Defendant further argues that, but for these alleged errors, "there is a reasonable likelihood the outcome of these proceedings would have been different insofar as [Defendant] would have chosen to compel the Government to prove its case rather than submit to deportation from the United States." (Id. at 13-14.)
The Court proposes to find entirely incredible Defendant's allegations that Mr. Serna failed to ascertain his immigration status, determine the plea's effect on that status, and advise him of that effect. Initially, Defendant's assertion that "the plea agreement contained nothing more than a vague and non-specific statement regarding immigration consequences" is patently false, and completely ignores the section of the agreement in which Defendant actually consented to his removal from the United States after completion of his sentence. (Id. at 10; CR Doc. 36 at 10.) Further, at the plea hearing, Judge Garcia affirmatively told Defendant that he would be deported after serving his sentence, and Defendant testified that he understood. (CR Doc. 56 at 10.) Moreover, Mr. Serna has attested that he "specifically told [Defendant] that he would be removed from the United States at the completion of his sentence and that he would be excluded from reentry into the United States for the remainder of his life." (Doc. 5-3 ¶ 12.) In short, Defendant's ex post facto, self-serving allegation that he was not advised of the immigration consequences of his plea is completely unbelievable given the fact that he expressly agreed to be deported both in his plea agreement and at the plea hearing.
In addition, the Court proposes to find that any deficiency in Mr. Serna's advice regarding immigration consequences in no way prejudiced Defendant. Establishing prejudice under Strickland in the context of a claim that defense counsel failed to advise the defendant that his guilty plea would result in deportation requires the defendant to demonstrate a reasonable probability that, "but for counsel's unprofessional errors, . . . the outcome of the plea process would have been different." Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 1384 (2012). Here, Defendant has failed to show that, if he had known of the immigration consequences of his plea, there is a reasonable probability that he would have rejected the plea and proceeded to trial. See United States v. Moya, 676 F.3d 1211, 1213 (10
It is completely improbable that Defendant would have chosen to face trial rather than accept deportation as part of his guilty plea, when he explicitly consented to deportation both in his plea agreement and at the plea hearing.
For all of the foregoing reasons, the Court proposes to find that the Petition, exhibits, and record conclusively establish that Defendant is not entitled to the relief he seeks. Consequently, the undersigned recommends that the Court DISMISS the Petition (Doc. 1) and this case with prejudice.
