JOHN S. KAULL, Magistrate Judge.
On November 10, 2011, Petitioner Robert Lee Saunders, Jr. ("Petitioner"), proceeding pro se, filed a Motion to Vacate Pursuant to 28 U.S.C. § 2255. (Civil Action No. 5:11-cv-161, Doc. 1; Criminal Action No. 5:10-cr-18, Doc. 203). On November 14, 2011, the Court issued a Notice of Deficient Pleading. (Doc. 205). Petitioner filed his Amended Motion in the court-approved form on December 1, 2011. (Doc. 209).
On February 29, 2012, the undersigned Magistrate Judge entered an Order directing the Respondent, the United States of America ("Respondent" or "government") to answer Petitioner's Motion. (Doc. 212). On March 7, 2012, the government filed a Motion for Extension on Time to File Response (Doc. 214), which the undersigned granted on March 14, 2012. (Doc. 215). The government filed a Response to Petitioner's Motion on April 19, 2012. (Doc. 219).
The undersigned now issues this Report and Recommendation on Petitioner's motion without an evidentiary hearing. For the reasons stated below, the undersigned recommends that the District Judge deny Petitioner's motion to vacate.
On April 6, 2010, the Petitioner and three co-defendants were charged by a federal Grand Jury on a thirteen count indictment, ten counts of which named the Petitioner. On July 30, 2010, Petitioner entered a plea of guilty to Count 1 of the Indictment, which charged him with participation in a conspiracy to distribute more than five hundred (500) grams of cocaine and a quantity of marijuana in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). (Doc. 100 at 1). As part of the plea agreement, Petitioner stipulated that his participation in the conspiracy involved between three and one half (3.5) and five (5) kilograms of cocaine and fifty (50) kilograms of marijuana. (Id. at 4).
Following his entered plea of guilty, a Presentence Investigation Report ("PSI") was prepared by direction of the Court by U.S. Probation Officer Daniel Fugate. (Doc. 172). The PSI found a base offense level of 30. (Id. at 19). The offense level was increased by two for the defendant's role in the offense, and subsequently reduced three levels for acceptance of responsibility, resulting in an adjusted offense level of 29. (Id.) Neither party filed any objections to the report, though the government had previously filed a motion to reduce the Petitioner's offense level one additional level due to his substantial assistance in the investigation of his co-defendants, which the Court granted. (Doc. 171). On November 30, 2010, the Petitioner was sentenced to a term of seventy-eight (78) months incarceration, the lowest sentence within his applicable advisory guideline range of seventy-eight (78) to ninety-seven (97) months. (Id.). Throughout these proceedings, the Petitioner was represented by attorney Kevin Neiswonger, Esq.
Petitioner did not file a direct appeal of his conviction or sentence.
In his Court-Approved Motion, Petitioner alleges the following:
(Doc. 203).
In its response, the government asserts as follows:
(Doc. 219).
The Petitioner filed no Reply to the government's Response.
"[T]he guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned." Blackledge v. Allison, 431 U.S. 63, 71 (1877). However, the advantages of plea agreements are only secure when "dispositions by guilty plea are accorded a great measure of finality." Id. The United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") has recognized that the Government often secures waivers of both appellate and collateral attack rights "from criminal defendants as part of their plea agreement." United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005).
Courts have routinely held that "defendants can waive fundamental constitutional rights such as the right to counsel, or the right to a jury trial." United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). Specifically, the Fourth Circuit has held that "a waiver-of-appeal-rights provision in a valid plea agreement is enforceable against the defendant so long as it is `the result of a knowing and intelligent decision to forgo the right to appeal.'" United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994) (citations omitted). However, a defendant still retains the right to appellate review on limited grounds, such as when a sentence above the maximum penalty provided by statute is imposed or when a sentence is imposed based on a constitutionally impermissible factor. Id. at 732. Furthermore, the Attar court recognized that a defendant cannot "fairly be said to have waived his right to appeal his sentence on the ground that the proceedings following entry of the guilty plea were conducted in violation of his Sixth Amendment right to counsel." Id.
Eleven years later, the Fourth Circuit determined there was no reason to distinguish between waivers of appellate rights and waivers of collateral attack rights. Lemaster at 220 n.2. The Fourth Circuit noted that all courts of appeals to have considered the issue have "held that the right to attack a sentence collaterally may be waived so long as the waiver is knowing and voluntary." Id. at 220. The Lemaster Court did not address whether the same exceptions that were noted by the Attar court apply to a waiver of collateral attack rights, but it did note that it saw "no reason to distinguish" between the two. Id. at 220 n.2; see also United States v. Cannady, 283 F.3d 641, 645 n.3 (4th Cir. 2000) (collecting cases where the court has determined that waivers of § 2255 rights are generally valid).
The Fourth Circuit has not yet issued a binding decision defining the scope of collateral attack waivers and so has not yet imposed on this Court a standard governing "the extent to which an ineffective assistance of counsel claim can be precluded by a § 2255 waiver." Braxton v. United States, 358 F.Supp.2d 497, 502 (W.D. Va. 2005).
The Fourth Circuit has held that the determination of whether a waiver of appellate and collateral attack rights is "knowing and intelligent" "depends `upon the particular facts and circumstances surrounding [its making], including the background, experience, and conduct of the accused.'" Attar at 731 (quoting United States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992)). This determination is often made upon reviewing the "adequacy of the plea colloquy" and determining, in particular, "whether the district court questioned the defendant about the appeal waiver." United States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005). However, an ultimate decision is "evaluated by reference to the totality of the circumstances." United States v. General, 278 F.3d 389, 400 (4th Cir. 2002).
The Supreme Court has set forth a two-prong test for determining whether a convicted defendant's claim of ineffective assistance of counsel warrants the reversal of his conviction. Strickland v. Washington, 466 U.S. 668, 687 (1984). First, "the defendant must show that counsel's performance was deficient." Id. Second, "the defendant must show that the deficient performance prejudiced the defense." Id. These two prongs are commonly referred to as the "performance" and "prejudice" prongs. Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1297 (4th Cir. 1992). In both of these stages of the analysis, the Petitioner bears the burden of proving his allegations by a preponderance of the evidence. See United States v. Moore, 1993 WL 179226 (4th. Cir. May 26, 1993); see also Vanater v. Boles, 377 F.2d 898, 900 (4th Cir. 1967).
To satisfy the "performance" prong, the defendant must demonstrate that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the Sixth Amendment." Strickland at 687. However, a reviewing court does not "grade" trial counsel's performance, and there is a strong presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." Carter v. Lee, 283 F.3d 240, 249 (4th Cir. 2002). Essentially, the reviewing court must not "second-guess" counsel's performance and must "evaluate counsel's performance `from counsel's perspective at the time.'" Hunt v. Lee, 291 F.3d 284, 289 (4th Cir. 2002). Furthermore, the standard of reasonableness is objective, not subjective. See Strickland at 688.
To satisfy the "prejudice" prong, the defendant must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. Therefore, if counsel's errors have no effect on the judgment, the conviction should not be reversed. See id. at 691. In the context of a guilty plea, a petitioner must demonstrate that there is a reasonable probability that but for his attorney's alleged mistakes, he would not have pled guilty and instead would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). The Fourth Circuit has recognized that if a defendant "cannot demonstrate the requisite prejudice, a reviewing court need not consider the performance prong." Fields at 1297.
In his motion, Petitioner asserts that he received ineffective assistance of counsel resulting in his guilty plea not being intelligently, voluntarily, and knowingly entered. (Doc. 209-1, p. 1-2) Specifically, Petitioner alleges he was "coerced by the prosecution and his own attorney to sign a different plea agreement" than the one his attorney had previously gone over with him (Id.). As mentioned before, most courts of appeals have determined that waivers of collateral attack rights encompass claims of ineffective assistance of counsel "that do not call into question the validity of the plea or the § 2255 waiver itself, or do not relate directly to the plea agreement or the waiver." Braxton at 503. Here, Petitioner's claim calls into question the validity of his plea and relates directly to his plea agreement and waiver. Additionally, in the Rule 11 colloquy, Judge Stamp informed Defendant that his waiver of appellate and collateral attack rights was "subject to certain exceptions, such as ineffective assistance of counsel." (Plea Hrg. Tr. at 14:13-15). Therefore, the undersigned finds that Petitioner's claim does not fall within the scope of his collateral attack waiver.
Petitioner claims that his counsel during plea negotiations rendered ineffective assistance by coaxing him into accepting a plea agreement which he alleges was wholly different from the plea agreement that Petitioner had reviewed at counsel's office. (Doc. 209-1 at 2-3). The Petitioner further claims he was assured by his attorney and by the government that he would serve no more than 5 years incarceration. (Id.).
A review of the record shows that the factual scenario surrounding Petitioner's guilty plea is not as he claims. Rather than the complete overhaul suggested by Petitioner, it appears that only one paragraph, the second paragraph of the first page, was altered at the plea hearing. (Plea Hrg. Tr. at 6:24-7:4). This alteration was to correct a typo wherein the applicable sentence was incorrectly listed as 5 years, which was corrected to reflect the actual sentence range of not less than 5 nor more than 40 years. (Id.).
Even had Mr. Saunders gone into the plea hearing expecting to receive a sentence of no more than 5 years, it is clear from the hearing transcript that he did not hold this mistaken belief at the time he executed the written plea agreement in court. At the start of the hearing, Mr. Parr, the Assistant U.S. Attorney, made it abundantly clear the correct applicable sentence range.
(Id.). Additionally, after having been informed in open court by the government of this change in the plea agreement, Petitioner himself explicitly acknowledged to the Court his knowing and intelligent agreement to it during Judge Stamp's Rule 11 colloquy.
(Plea Hrg. Tr. 12:15-22). This exchange definitively shows that the Petitioner was aware that his guilty plea would result in a sentence of no less than 5 nor greater than 40 years. Any claim that Petitioner was coaxed into accepting plea terms he did not understand is completely defused by the verbal exchanges between the Petitioner and the Court.
Petitioner's claim that his defense counsel assured him that he would receive a sentence of not more than 5 years is similarly dealt with in the colloquy.
(Plea Hrg. Tr. 31:9-18).
Even if, arguendo, defense counsel had committed the errors alleged in Petitioner's pro se Motion, Petitioner cannot show the requisite prejudice therefrom. See Hill at 58-59. Petitioner was aware of the amended contents of the plea agreement, and nonetheless entered a plea of guilty. He therefore cannot be heard to say that he would have insisted on going to trial had he known of the altered term. See id. Based on the foregoing, the undersigned finds that Petitioner's claim of ineffective assistance of counsel regarding his argument of personal use quantities is without merit.
In his pro se Motion, Petitioner claims that his defense counsel was constitutionally ineffective for failing to discuss Petitioner's presentence investigation report with him. (Doc. 209-1 at 3). Petitioner further alleges that, had defense counsel discussed the PSI with him, he would have objected to several items contained therein. (Id. at 3-4). However, this assertion after the fact is directly contradicted by Petitioner's sworn testimony at the sentencing hearing. At that time, Mr. Saunders affirmed that his counsel had in fact gone over the PSI with him, and that he did not wish to file any objections to its contents. (Id. at 4).
(Sen. Hrg. Tr. at 3:8-16). Furthermore, while the Petitioner expressed a distaste with the overall PSI, he indicated that he had no objection to the manner in which it was compiled given the evidence.
(Id. at 5:18-24). The Petitioner unmistakably stated under oath that Mr. Neiswonger did discuss the PSI with him, and that, while he was unhappy with it, he did not wish to file any objections to its contents. For the foregoing reasons, the undersigned finds this contention to be without merit.
The Petitioner claims that he "was never given the opportunity to see any videos, never given any opportunity to hear any audio, and never given the opportunity to see or read any statements of anyone who was supposedly a witness before the Grand Jury against the defendant for the duration of the case." (Doc. 209-1 at 3). While neither the Petitioner nor the government have presented any argument as to the factual truth of this assertion, Petitioner has failed to assert how his decision to plea guilty would have been altered in the absence of this alleged error.
When applying the prejudice prong of the Strickland test to the plea bargaining process, "a defendant must show the outcome of the plea process would have been different with competent advice." Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012). The Petitioner must be able to demonstrate a "reasonable probability that, but for counsel's errors, [the Petitioner] would have would not have pleaded guilty and would have insisted on going to trial." Lafler v. Cooper, 132 S.Ct. 1376, 1384-1385 (2012). Additionally, the Supreme Court has previously held that a defendant's entered plea of guilty "renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt." Menna v. New York, 423 U.S. 61, 62 (1975).
Not only does the Petitioner not allege that he would not have plead guilty to the offense charged had he been shown the evidence against him firsthand, Petitioner was in fact aware of the contents of that evidence, and still went forward with a guilty plea. The PSI contained a summation of all the government's evidence against the Petitioner, as well as statements of how, and when, it was collected. (Doc. 172 at 6-9). As earlier noted, at Petitioner's sentencing hearing, he stated under oath that he and his counsel had gone over the PSI, that he understood it, and that he did not have any objections thereto. (Sen. Hrg. Tr., supra). Regardless of what the Petitioner's self-serving position may be today, it was his sworn statement at sentencing that his attorney had explained to him, and that he understood, a document containing a summary of the government's evidence against him. Therefore, Petitioner entered a plea of guilty with the full knowledge of what the government believed to be the evidence against him, and cannot be heard to say that he would have insisted on a plea of not guilty had he been provided with that evidence. Petitioner has additionally not made a claim that he did not commit the crime to which he plead guilty, and thus has raised no grounds for reversal based on these alleged discovery failures.
Having stated no claim that he not have pled guilty, but would have instead insisted on going to trial had he had the opportunity to observe the government's evidence against him firsthand, nor having made any claim of actual innocence, Petitioner's claim as to this ground is without merit. Accordingly, the undersigned recommends that this claim be dismissed.
Based upon a review of the record, the undersigned recommends that Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Civil Action No. 5:11-cv-18, Doc. 1; Criminal Action No. 5:10-cr-18, Doc. 209) be
Within
The Court directs the Clerk of the Court to provide a copy of this Report and Recommendation to all counsel of record as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia. The Court further directs the Clerk of the Court to mail a copy of this Report and Recommendation to the pro se Petitioner Robert Lee Saunders by certified mail, return receipt requested to his last known address as reflected on the docket sheet.
