Gonzales v. United States of America
Filing
12
ORDER granting 8 Government's Motion to Dismiss; denying 1 Motion to vacate/set aside/correct sentence (2255). The Clerk of the Court is directed to enter judgment and close the file. Signed by Judge Marcia Morales Howard on 7/11/2014. (JW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ADAN GONZALES,
Petitioner,
vs.
Case No.
3:11-cv-408-J-34JRK
3:08-cr-139-J-34JRK
UNITED STATES OF AMERICA,
Respondent.
ORDER
This case is before the Court on Petitioner Adan Gonzales’ pro se Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody, (Doc. 1; Motion to Vacate), as well as his Memorandum Brief in Support of Pro
Se Motion to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody
Pursuant to (28 U.S.C. § 2255), (Doc. 2; Supporting Memorandum), both filed on April
28, 2011.1 In response, the Government filed the United States’ Motion to Dismiss
Petitioner Gonzales’ Pro Se Motion to Vacate, Set Aside or Correct Sentence Pursuant
to 28 U.S.C. § 2255. (Doc. 8; Motion to Dismiss). Petitioner then filed Petitioner’s
Objection to the Government’s Motion to Dismiss. (Doc. 10; Response). Here, the Court
considers Petitioner’s Motion to Vacate and the Government’s Motion to Dismiss, both
ripe for the Court’s review.
1
Citations to Petitioner’s criminal case file, 3:08-cr-139-J-34JRK, are denoted as “Crim. Doc. __.”
Citations to Petitioner’s civil § 2255 case file, 3:11-cv-408-J-34JRK, are denoted as “Doc. __.”
1
Pursuant to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section
2255 Proceedings,2 the Court has considered the need for an evidentiary hearing and
has determined that an evidentiary hearing is not necessary to resolve the merits of this
action. Aron v. United States, 291 F.3d 708, 714–15 (11th Cir. 2002) (indicating that an
evidentiary hearing on a § 2255 petition is not required when the petitioner asserts
allegations that are affirmatively contradicted by the record or patently frivolous, or if in
assuming the facts that he alleges are true, he still would not be entitled to any relief);
Dickson v. Wainwright, 683 F.2d 348, 351 (11th Cir. 1982) (“On habeas a federal district
court need not conduct an evidentiary hearing if it can be conclusively determined from
the record that the petitioner was not denied effective assistance of counsel.”); Patel v.
United States, 252 F. App’x 970, 975 (11th Cir. 2007).3
I.
Background
On April 17, 2008, the United States returned an indictment against Adan
Gonzales (Gonzales) and three co-defendants, charging Gonzales with one count of
conspiring to distribute five kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C), and 846, and one count of willfully and intentionally
possessing with intent to distribute five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(C). See Indictment at 1–3 (Crim. Doc. 1). Pursuant to
a Plea Agreement, the Government agreed to dismiss count two, the substantive
offense, and Gonzales agreed to plead guilty to count one, the conspiracy offense. See
2
Rule 8(a) of the Rules Governing Section 2255 Proceedings requires the Court to review the record,
including any transcripts and submitted materials, to determine whether an evidentiary hearing is
warranted before deciding on a § 2255 motion.
3
Although the Court does not rely on unpublished opinions as precedent, they may be cited throughout
this Order as persuasive authority on a particular point. Rule 32.1 of the Federal Rules of Appellate
Procedure expressly permits the Court to cite to unpublished opinions that have been issued on or after
January 1, 2007. Fed. R. App. P. 32.1(a).
2
Plea Agreement at 1–2 (Crim. Doc. 93). The Plea Agreement set forth the elements of
the conspiracy to distribute cocaine offense, the minimum and maximum penalties that
Gonzales faced, and the facts which the Government was prepared to prove if
Gonzales proceeded to trial. Id. at 1–2, 15–18. Significantly, the Plea Agreement also
included a sentence-appeal waiver provision, stating that Gonzales:
expressly waives the right to appeal [his] sentence or to challenge it
collaterally on any ground, including the ground that the Court erred in
determining the applicable guidelines range pursuant to the United States
Sentencing Guidelines, except (a) the ground that the sentence exceeds
the defendant’s applicable guidelines range as determined by the Court
pursuant to the United States Sentencing Guidelines; (b) the ground that
the sentence exceeds the statutory maximum penalty; or (c) the ground
that the sentence violates the Eighth Amendment to the Constitution.
Plea Agreement at 10 (emphasis in original).
On October 30, 2008, Gonzales appeared before the Honorable James R. Klindt,
United States Magistrate Judge, for a change of plea hearing where the Magistrate
Judge conducted a thorough and extensive plea colloquy. See Clerk’s Mins. (Crim. Doc.
91); see generally Plea Tr.4 In the plea colloquy, Judge Klindt covered all of the matters
required by Rule 11 of the Federal Rules of Criminal Procedure, and Gonzales’
responses established that he was aware of the charges, the penalties he faced if
convicted, and his rights. Gonzales acknowledged that he was under oath; that he was
pleading guilty because he was guilty; that his plea was a free, voluntary, and
independent decision; that no one forced, coerced, or threatened him to plead guilty;
and that he was not relying on any agreement, discussion, promise, or understanding
other than those contained in the written Plea Agreement. Id. at 5, 34–35. Gonzales
4
The transcript of the change of plea hearing is found in the docket for Gonzales’ criminal case (Crim.
Doc. 140) and will be cited here as Plea Tr.
3
acknowledged that he had read every page and every word of the Plea Agreement and
that he understood it. Plea Tr. at 19–20. During Gonzales’ plea colloquy, the Magistrate
Judge specifically questioned Gonzales about the paragraph covering his waiver of the
right to appeal and to collaterally challenge his sentence and assessed whether
Gonzales fully understood that he was waiving his right to appeal his sentence:
THE COURT: Now normally, Mr. Gonzales, you would have the
right to appeal in your sentence on any grounds that
you think is appropriate including an incorrect
application of the guideline, sentencing guidelines,
but under your plea agreement you’re waiving and
giving up your right to appeal or otherwise challenge
the sentence which is imposed upon you, either
directly or collaterally, unless certain specific
circumstances are present.
So, in other words, you’re waiving and giving up your
right to appeal or collaterally attack your sentence
unless one of the specific things set out in paragraph
B 5 happen, all right, and those are as follows:
A, the ground that the sentence exceeds the
defendant’s applicable guidelines range . . ; or the
ground that the sentence violates the 8th
Amendment to the Constitution[; or] . . . if the
government exercises its right to appeal, then you’d
be released from this wavier and you could appeal or
file a collateral attack.
Do you understand all of that?
THE DEFENDANT: Yes, sir.
Id. at 24–42. The Magistrate Judge also explained the meaning of collateral challenges
to a sentence, asked if Gonzales understood he was waiving his right to collaterally
challenge his sentence including claims of ineffective assistance of counsel at
sentencing, and confirmed with Gonzales that he was making this waiver freely and
voluntarily. Id. at 26–27.
4
In the course of the plea colloquy, Gonzales acknowledged the essential
elements the Government would be required to prove beyond a reasonable doubt if he
proceed to trial on the conspiracy charge offense, Plea Tr. at 15–16. Gonzales’
responses to the Magistrate Judge’s questions established that he was aware of his
constitutional rights, id. at 10–12, and the consequences of his guilty plea, id. at 16–17
(highlighting the minimum and maximum penalties as expressly stated in the Plea
Agreement: “Count 1 is punishable by a mandatory minimum term of imprisonment of
ten years up to life imprisonment . . . .”). Additionally, the Magistrate Judge explained
the discretionary nature of the guidelines, informing Gonzales that the guidelines range
would not be known until after the probation office prepared his pre-sentence report and
that his sentence might be “different than any estimated sentence that [defense
counsel] or anyone else has given you” and it may be “more severe than you expect.”
See Plea Tr. at 13–14. Gonzales answered affirmatively that he understood the
uncertain outcome of his sentence and his inability to appeal it, even if he was unhappy
with the sentence. Id.
After informing Gonzales of the charges and his rights and confirming that
Gonzales understood all the matters discussed, the Magistrate Judge asked Gonzales:
THE COURT: [H]ow do you plead, guilty or not guilty to Count 1 of
the indictment?
THE DEFENDANT: Guilty.
THE COURT: Are you pleading guilty because you are guilty
THE DEFENDANT: Yes.
Id. at 28. The Magistrate Judge then asked the Government to provide the factual basis
supporting the guilty plea. The Government proffered the following:
5
a confidential source negotiated with a Manual Nava, a co-conspirator, for the
purchase of 20 kilograms of powder cocaine. Mr. Nava introduced the
confidential source to Gonzales, who agreed to the sale of 5 kilograms of cocaine
at a price of $25,000 per kilogram. Several recorded meetings between Gonzales
and the confidential source took place prior to the sale. Gonzales provided a 25.2
gram sample of cocaine to the confidential source during a period of
negotiations. The confidential source was then instructed to drive with Gonzales
to the location of the cocaine, the house of Francisco Raygoza, another coconspirator. Once at Raygoza’s house, Miramontes, Raygoza’s nephew and
another co-conspirator, showed the confidential source three kilograms of
cocaine in three separate packages. The confidential source was told that the
remaining two kilograms were in one of the vehicles in the driveway. After arrests
were made and a search executed at the location, the Government located and
seized 7.8173 kilograms of cocaine.
Id. at 29–33. Gonzales then confirmed the accuracy of the Government’s proffered
facts:
THE COURT: Mr. Gonzales, is this what you did, in terms of what
was stated here about you, is that what you did?
THE DEFENDANT: Yes.
Id. at 33. Gonzales further admitted to the personalization of the elements, id., and
affirmed that “the object of the unlawful plan was to distribute cocaine, a schedule II
controlled substance, the amount of cocaine being 5 kilograms or more, as charged in
the indictment.” Id. at 34. At the conclusion of the plea colloquy, the Magistrate Judge
recommended that the Court accept Gonzales’ guilty plea, and the Court did so on
November 5, 2008. Id. at 37–38; see Acceptance of Plea of Guilty, Adjudication of Guilt,
and Notice of Sentencing (Crim. Doc. 96).
After continuing Gonzales’ sentencing at his request, the Court scheduled the
sentencing to proceed on April 1, 2009. See Order (Crim. Doc. 102). At the sentencing,
the Court determined that Gonzales’ advisory guidelines, by operation of the career
offender guideline, were a total offense level of 34 with a criminal history category of VI,
6
yielding a guideline term of imprisonment of 262 months to 327 months. Gonzales’
counsel argued that Gonzales’ advisory guideline range by virtue of the application of
the career offender guideline was simply too high, and urged the Court to impose a
below guideline sentence.
[I]t’s two cases, two prior cases. And unfortunately, that’s what qualifies
him. But I think . . . all of the things we’ve heard about how Adan grew up,
how hard he worked, his support his stepson, . . . I think those things all
speak very well of him. And I think that it would be appropriate and
reasonable to sentence him to the ten-year minimum mandatory. This
career offender, in this case, I just think it’s too extreme.
....
Under the guidelines, if you believe that his criminal history is
overrepresented by the career offender enhancement, you can move one
category to the left in his criminal history, from a VI to a V. But then I think
under 3553 you look at all of the factors, including how he was raised, how
he participated in working in the fields with his parents and sisters and
brothers and lived the life that his sister Anna described. Those are all
things I think that you can take into account after correctly calculating the
guidelines.
Id. at 48–49.
[A]ll of the objectives that we seek to achieve through sentencing are met
in this case with a ten-year sentence . . . he deserves a sentence that’s
less than what the career offender guidelines are calling for. His whole
criminal history is two paragraphs.
Id. at. 52. In contrast, the Government argued that the Court should look at the timing
and pattern of Gonzales’ prior offenses, and sentence Gonzales in accordance with the
guidelines. Id. at 10–11.
Ultimately, after considering the information provided by Gonzales and his
attorney, including Gonzales’ personal history and characteristics, his hard work, and
his commitment to his family, the Court sentenced Gonzales to 200 months
7
imprisonment, id. at 53–54;5 Judgment at 2–3 (Crim. Doc. 126), which constituted a
downward variance from the advisory guidelines range, see PSR ¶ 58. The Court
further explained:
There’s no question that in this case there is a sentence, a need for
a sentence that reflects the seriousness of that offense and protects the
public. But the Court is of the view that a sentence of 200 months, which I
think is about 16 and a half years, is entirely adequate to accomplish all of
those things; and that a sentence of close to 22 years, which is what is
called for by the guidelines, would be an unreasonably long sentence
based upon the - - this individual’s criminal history, his personal history
and the offense. It is a sentence greater than the sentence imposed with
regard to the codefendants. But that is called for, for precisely the reason
that the prosecution suggested, and that is that Mr. Gonzales, unlike the
codefendants, has had prior drug convictions and has had – should have
learned from those prior drug convictions not to engage in this behavior.
Id. at 55.
On April 15, 2009, Gonzales’ counsel filed an Anders Brief,6 and on December 4,
2009, after reviewing the entire record, the Court of Appeals for the Eleventh Circuit
affirmed Gonzales’ conviction and sentence and permitted Gonzales’ counsel to
withdraw. Gonzales filed the instant Motion to Vacate, on April 21, 2011, asserting that
the Government coerced him to plead guilty by fabricating evidence about the drug
quantity. See Motion to Vacate at 10–12. Gonzales also claims that his counsel
rendered ineffective assistance by failing to adequately investigate the evidence, failing
to advise him that he would be sentenced as a career offender, and failing to argue for a
lesser sentence. Id. at 13–25. The Government moved to dismiss the Motion to Vacate,
5
The transcript of the sentencing hearing is found in the docket for Gonzales’ criminal case (Crim. Doc.
141) and will be cited here as Sentencing Hearing Tr.
6
In Anders v. California, 386 U.S. 738 (1967), the Supreme Court held, counsel may be permitted to
withdraw if the court affirms, based on counsel’s submitted brief, that counsel’s case is wholly frivolous.
An Anders brief is commonly referred to as a no merits brief.
8
see Motion to Dismiss at 2–6, and Gonzales filed a Response to that motion, see
Response.
II.
Applicable Law
Pursuant to Title 28, United States Code, Section 2255, a person in federal
custody may move to vacate, set aside, or correct his sentence. Section 2255 permits
such collateral challenges on four specific grounds: (1) the imposed sentence was in
violation of the Constitution or laws of the United States; (2) the court did not have
jurisdiction to impose the sentence; (3) the imposed sentence exceeded the maximum
authorized by law; or (4) the imposed sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255(a) (2006). Only jurisdictional claims, constitutional claims, and claims
of error that are so fundamentally defective as to cause a complete miscarriage of
justice will warrant relief through collateral attack. United States v. Addonizio, 442 U.S.
178, 184–86 (1979); United States v. Teague, 953 F.2d 1525, 1534 n.11 (11th Cir.
1992) (explaining that a petitioner’s challenge to his sentence based on a Sixth
Amendment claim of ineffective assistance of counsel is normally considered in a
collateral attack).
A petitioner’s right to directly or collaterally challenge his sentence, even when
alleging ineffective assistance claims, may be barred when the petitioner effectively
waives that right pursuant to a plea agreement. Williams v. United States, 396 F.3d
1340, 1341–42 (11th Cir. 2005) (holding that a valid sentence-appeal waiver precluded
a subsequent collateral attack based on a claim of ineffective assistance of counsel
during sentencing), cert. denied, 546 U.S. 902 (2005). The Eleventh Circuit reasoned
that “a contrary result would permit a defendant to circumvent the terms of the
9
sentence-appeal waiver simply by recasting a challenge to his sentence as a claim of
ineffective assistance, thus rendering the waiver meaningless.” Id. at 1342. To be
enforceable such that a plea agreement’s sentence-appeal waiver will bar a § 2255
challenge, the waiver must be made knowingly and voluntarily. See Williams, 396 F.3d
at 1341 (citing United States v. Bushert, 997 F.2d 1343, 1350–51 (11th Cir. 1993)). To
establish that a waiver was made knowingly and voluntarily, the Government must
demonstrate either that: (1) the district court specifically questioned the petitioner
regarding the sentence-appeal waiver during the plea colloquy, or (2) the record clearly
shows that the petitioner otherwise understood the waiver’s full significance. Notably,
there is a strong presumption that statements made under oath during a plea colloquy
are true, see United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994), and a
petitioner bears a heavy burden in showing them to be false, see United States v.
Rogers, 848 F.2d 166, 168 (11th Cir. 1988); see also United States v. Stitzer, 785 F.2d
1506, 1514 n.4 (11th Cir. 1986) (giving considerable weight to the policy that if the “plea
taking procedure is careful and detailed, the [petitioner] will not later be heard to
contend that he swore falsely”). Consequently, a petitioner’s representations in a plea
colloquy may constitute a “formidable barrier in any subsequent collateral proceedings.”
Blackledge v. Allison, 431 U.S. 63, 73–74 (1977); Thompson v. Wainwright, 787 F.2d
1447, 1460–61 (11th Cir. 1986).
Nevertheless, a sentence-appeal waiver will not bar certain Sixth Amendment
ineffective assistance of counsel claims from being considered pursuant to § 2255.
When a petitioner alleges an ineffective assistance of counsel claim that challenges the
validity or voluntariness of the plea or waiver itself, such as a claim that counsel coerced
10
or misadvised petitioner prior to entry of the plea, then the sentence-appeal waiver will
not bar a court from hearing the merits of the claim. See Baird v. United States, 445 F.
App’x 252, 254 (11th Cir. 2011) (per curiam) (noting that despite a sentence-appeal
waiver, collateral attack through an ineffective assistance claim is permitted when “the
movant challenges the knowing and voluntary nature of the plea”)7; see also Patel v.
United States, 252 F. App’x 970, 971, 974-75 (11th Cir. 2007) (per curiam) (finding that
the district court erred in dismissing, based on a sentence-appeal waiver, petitioner’s
claim that counsel misadvised him prior to pleading guilty); Cowart v. United States, 139
F. App’x 206, 207-08 (11th Cir. 2005) (per curiam) (holding that a sentence-appeal
waiver that only expressly limits a petitioner from collaterally challenging his “sentence”
does not bar an ineffective assistance claim that challenges the validity of his plea or
the sentence-appeal waiver itself).
Therefore, despite the presence of a sentence-
appeal waiver, the Court must address the merits of a § 2255 petitioner’s claim of
ineffective assistance if it challenges the validity of the plea or waiver. Id.
As with any Sixth Amendment ineffective assistance of counsel claim, a § 2255
petitioner who claims counsel’s ineffective assistance undermined the validity of his
guilty plea, must demonstrate both: (1) that his counsel’s alleged conduct amounted to
constitutionally deficient performance and (2) that his counsel’s deficient performance
caused sufficient prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hill v.
7
In Baird, the Eleventh Circuit addressed the merits of the petitioner’s ineffective assistance claim
challenging the validity of both his plea and sentence-appeal waiver. See Baird, 445 F. App’x at 253-54.
The petitioner alleged that he unknowingly and involuntarily entered a guilty plea due to his counsel’s
failure to properly explain to him the terms of his waiver in his plea agreement. Id. The court held that
the petitioner was not entitled to relief because he did not show sufficient prejudice, namely, that there
was a reasonable probability he would not have pleaded guilty if counsel had explained the terms of the
waiver. Id. (finding that the petitioner’s decision to plead guilty was primarily driven by the government’s
agreement not to forfeit his property, and that counsel’s explanation of the waiver would not have
deterred his plea.).
11
Lockhart, 474 U.S. 52, 58 (1985) (applying the two-part Strickland test to ineffective
assistance claims arising out of the plea process); Weeks v. Jones, 26 F.3d 1030, 1036
(11th Cir. 1994). In determining whether the petitioner has satisfied the first prong, that
his counsel’s conduct was deficient performance, the Court adheres to the standard of
reasonably effective assistance. Weeks, 26 F.3d at 1036. The petitioner must show that
counsel’s performance, in light of all of the circumstances, fell outside the “wide range of
professionally competent assistance.” Id. Indeed, “counsel is strongly presumed to have
rendered adequate assistance,” Strickland, 466 U.S. at 690, and to rebut that
presumption and demonstrate that counsel’s performance was unreasonable, “[t]he
burden of persuasion is on a petitioner to prove, by a preponderance of competent
evidence.” Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc)
(citing Strickland, 466 U.S. at 688). This burden of persuasion, though not
insurmountable, is a heavy one. See id. at 1314–15 (citing Kimmelman v. Morrison, 477
U.S. 365 (1986)). If the record is incomplete or unclear about counsel's actions, then it
is presumed that counsel exercised reasonable professional judgment. See id. at 1314
n.15. To satisfy the second prong, that counsel’s deficient performance sufficiently
prejudiced the defendant, the petitioner must demonstrate that there is a reasonable
probability that, but for counsel’s error, the result of the proceeding would have been
different. Id. at 1036–37 (citing Strickland, 466 U.S. at 694). In determining whether a
petitioner has met both requirements of deficient performance and prejudice to warrant
relief, the Court considers the totality of the evidence. Strickland, 466 U.S. at 695.
However, because both prongs are necessary, “there is no reason for a court . . . to
approach the inquiry in the same order or even to address both components of the
12
inquiry if the defendant makes an insufficient showing on one.” Id. at 697; see also
Wellington v. Moore, 314 F.3d 1256, 1261 n. 1 (11th Cir. 2002) (“We need not discuss
the performance deficiency component of [petitioner’s] ineffective assistance claim
because failure to satisfy the prejudice component is dispositive.”).
When evaluating counsel’s advice regarding the entry of a plea, the question is
not “whether a court retrospectively consider[s] counsel’s advice to be right or wrong,”
but rather “whether the advice was within the range of competence demanded of
attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 769–71 (1970)
(concluding that a guilty plea based on “reasonably competent advice” is “not open to
attack on the ground that counsel may have misjudged the admissibility of the
defendant’s confession”). The Supreme Court has explained:
[T]he decision to plead guilty before the evidence is in frequently involves
the making of difficult judgments. All of the pertinent facts normally cannot
be known unless witnesses are examined and cross-examined in court.
Even then the truth will often be in dispute. In the face of unavoidable
uncertainty, the defendant and his counsel must make their best judgment
as to the weight of the State’s case. Counsel must predict how the facts as
he understands them, would be viewed by a . . . judge or jury . . . .
Waiving trial entails the inherent risk that the good faith evaluations of a
reasonably competent attorney will turn out to be mistaken either as to the
facts or as to what a court’s judgment might be on given facts.
Id. at 769, 770. Thus, when a client pleads guilty, 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. Walker v. Caldwell, 476 F.2d 213, 218 (5th Cir. 1973).8 To provide this
understanding to the accused, counsel must, make an independent examination of the
case and offer his informed opinion as to the best course to be followed in protecting the
8
Decisions by the former Fifth Circuit issued before October 1, 1981, are binding as precedent in the
Eleventh Circuit. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
13
interests of his client. Id. at 217 (quoting Von Moltke v. Gillies, 332 U.S. 708, 721
(1948)).
The right to competent plea bargain advice is at best a privilege that
confers no certain benefit. An accused may make a wise decision even
without counsel's assistance, or a bad one despite superior advice from
his lawyer. The Supreme Court has commented that the unpleasant
choice is one the defendant ultimately must make for himself, and that the
decision is often inescapably grounded on uncertainties and a weighing of
intangibles.
Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984). To establish the prejudice
prong in a claim of ineffective assistance during the plea proceeding, the petitioner must
show that but for the alleged ineffective advice, the petitioner would not have pleaded
guilty and would have proceeded to trial. See Hill, 474 U.S. at 59. The Supreme Court
has noted that considerations, such as the defendant’s appraisal of the prosecution’s
case and the apparent likelihood of securing leniency with a guilty plea, frequently
present imponderable questions for which there are no certain answers. Brady v. United
States, 397 U.S. 742, 756 (1970). As such, the Court has instructed that “[t]he rule that
a plea must be intelligently made to be valid does not require that a plea be vulnerable
to attack if the defendant did not correctly assess every relevant factor entering into his
decision.” Id. at 757.
III.
Discussion
Gonzales contends that he was denied due process because the Government
allegedly “fabricated evidence against [him] which forced [him] to enter an involuntary
guilty plea.” See Supporting Memorandum at 10–12. Additionally, Gonzales alleges that
his counsel rendered ineffective assistance resulting in Gonzales entering an
involuntary and unknowing guilty plea. Id. at 13–25. The Government argues that both
14
claims are barred, having been effectively waived pursuant to the sentence-appeal
waiver outlined in his Plea Agreement. See Motion to Dismiss at 5–6. However,
because Gonzales’ claims are presented as a challenge to the validity of the plea, this
Court will first address his ineffective assistance claim on the merits. See Patel, 252 F.
App’x at 974–75. Then, the Court will turn to his due process claim.
A.
Ineffective Assistance of Counsel
Gonzales alleges that his counsel: (1) failed to adequately investigate the
evidence supporting the amount of cocaine, which he contends forced him to plead
guilty, see Supporting Memorandum at 13–20, (2) failed to advise Gonzales that he
would be sentenced as a career offender, which he contends rendered his plea
unknowing, id. at 20–22, and (3) failed to adequately investigate and present argument
that Gonzales’ criminal history category be reduced, which he contends caused him
prejudice, id. at 22–25. On review of the record, the Court concludes that Gonzales
knowingly and voluntarily waived his right to collaterally challenge his sentence
including his right to question the representation and advice he received from his
defense counsel.
The Magistrate Judge specifically questioned Gonzales on whether he knowingly
and voluntarily waived his right to appeal his sentence, including waiving any claim that
the court erred in computing the Sentencing Guidelines, and Gonzales answered
affirmatively. See Plea Tr. at 24–25. Gonzales acknowledged that his waiver applied to
direct appeals, as well as collateral attacks on his sentence, and that the waiver
included ineffective assistance of counsel claims relating to counsel’s assessment of the
guidelines. See id. at 26–27. Based upon Gonzales’ sworn statements during the plea
15
colloquy, see Medlock, 12 F.3d at 187 (applying a “strong presumption of veracity” to
statements made under oath during the plea proceeding), the Court finds that Gonzales
freely, voluntarily, knowingly and intelligently pleaded guilty pursuant to the Plea
Agreement. See Blackledge, 431 U.S. at 73–74 (explaining that a petitioner’s
representations in a plea colloquy may constitute a “formidable barrier in any
subsequent collateral proceedings”). Therefore, Gonzales effectively waived his right to
appeal or challenge his sentence and that his waiver is valid and enforceable. As such,
any ineffective assistance of counsel claims are due to be dismissed unless the claimed
assistance directly affected the validity of the waiver or the plea itself. See Cowart, 139
F. App’x at 207–08; Patel, 252 F. App’x at 975; Baird, 445 F. App’x at 254.
i.
Adequate Investigation
In his Motion to Vacate, Gonzales contends that his counsel rendered ineffective
assistance when he failed to investigate the Government’s evidence concerning the
amount of cocaine, see Supporting Memorandum at 13–20, and argues that this failure
coerced him to plead guilty, id. at 19. In support of this claim, Gonzales provides an
affidavit from a co-conspirator involved in the offense, contending that the offense
involved only three kilograms, not the five kilograms alleged in the indictment. See
Supporting Memorandum, affidavit at 1–2. Although Gonzales claims to have told his
attorney about the drug quantity defense, Id. at 19, this contention is conclusively
rebutted by the record which reflects that Gonzales specifically affirmed the quantity of
cocaine alleged in the indictment. Indeed, the quantity of cocaine was specifically set
forth in the Plea Agreement, and Gonzales affirmed the quantity of cocaine under oath
during the plea colloquy. Gonzales’ claim regarding his counsel’s performance also
16
conflicts with Gonzales’ sworn statement that he was satisfied with his attorney’s
representation and had no complaints about the representation. See Plea Tr. at 36. See
Medlock, 12 F.3d at 187; Blackledge, 431 U.S. at 73–74. Neither Gonzales’ current
contentions nor his co-conspirator’s affidavit undermine the weight of Gonzales’ sworn
testimony where he admitted the drug quantity and confirmed that he was knowingly
and voluntarily pleading guilty and agreeing to the sentence-appeal waiver provision.
See, e.g., Neston v. United States, No. 6:09-cv-1746, 2010 WL 5463091, at *3 (M.D.
Fla. Dec. 29, 2010) (holding that a valid sentence-appeal waiver precluded claims
arguing ineffective assistance of counsel for failing to challenge evidence, investigate
case prior to sentencing, or move for a downward departure at sentencing).
Nevertheless, this Court will address the merits of this ineffective assistance
claim. “[P]articular decision[s] not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Williams v. Head, 185 F.3d 1223, 1236 (11th Cir. 1999) (quoting
Strickland, 466 U.S. at 691). In evaluating the reasonableness of an attorney’s decision,
the defendant’s own statements or actions that may have influenced the decision are
considered. Bertolotti v. Dugger, 883 F.2d 1503, 1512 (11th Cir. 1989). In this case,
counsel’s decision not to investigate the quantity was reasonable because Gonzales
admitted to the proffered evidence. See Weeks, 26 F. 3d at 1036 (analyzing the facts at
the time of counsel’s conduct and from counsel’s perspective); Williams, 185 F.3d at
1237 (“An attorney does not render ineffective assistance by failing to discover
[evidence] that his client does not mention to him.”). The co-conspirator’s affidavit, while
favorable to Gonzales’ new account of the facts, does not negate the Government’s
17
case. Indeed, the Government’s evidence also involved several other witnesses,
including the confidential source and several on-scene agents, who would all testify that
the drug transaction involved more than five kilograms of cocaine, Plea Tr. at 29–33,
recordings of the transaction and surrounding discussions, id. at 29, and the total
quantity of seized cocaine, 7.8173 kilograms, id. at 33. In the face of the Government’s
proffered evidence, counsel’s actions were objectively reasonable.
Also, Gonzales does not claim that this alleged evidence would have been found
had counsel investigated further prior to the plea. This Court notes that the affidavit
submitted by Francisco Raygoza flatly contradicts Raygoza’s statements at his change
of plea hearing held on September 25, 2008. Plea Hearing Transcript at 37–38, 43
(Crim. Doc. 129). At Raygoza’s change of plea hearing, Raygoza was placed under
oath, id. at 4–5, and entered a plea of guilty to one count of conspiring to distribute five
kilograms or more of cocaine, admitting to the factual basis which reflected five
kilograms or more of cocaine. Id. at 37–38, 43 (Crim. Doc. 129). Raygoza stated that
his plea was his own independent decision and that he was not forced, threatened, or
coerced in any way. Id. at 45. Thus, under the circumstances known to counsel at the
time of the plea, it was not unreasonable not to further investigate.
Moreover, other than the bald assertion that he would have proceeded to trial,
Supporting Memorandum at 19–20, Gonzales has not shown that there is a reasonable
probability that, but for counsel’s allegedly deficient performance, Gonzales would not
have pled guilty, especially considering the potentially greater incarceration he would
have faced. See Hill, 474 U.S. at 59 (The standard is whether the “discovery of the
evidence would have led counsel to change his recommendation as to the plea, [which]
18
. . . depend[s] in large part on a prediction whether the evidence likely would have
changed the outcome of a trial.”). The affidavit from Gonzales’ co-conspirator does
nothing to undermine the rest of the Government’s evidence nor does it undermine the
veracity of Gonzales’ sworn statements at the change of plea hearing where he
admitted the quantity. Therefore, the Court concludes that Gonzales’ first claim of
ineffective assistance of counsel is refuted by the record and due to be denied.
ii.
Advice concerning career offender enhancement
Gonzales next asserts that counsel rendered ineffective assistance because he
failed to advise Gonzales “of the potential application of the career offender provisions.”
See Supporting Memorandum at 20. This claim relates to advice prior to entering the
plea, therefore, the Court will address the merits of this ineffective assistance claim.
Pretermitting Gonzales’ allegation that his counsel did not advise him of the
career offender enhancement,9 Gonzales has not shown prejudice. Gonzales does not
directly contend that this advice would have changed his decision to plead guilty.
Instead, Gonzales asserts he would have “been in a better position to make a
reasonable decision.” See Supporting Memorandum at 21.10 However, during the plea
colloquy, the Magistrate Judge emphasized the Court’s ability to depart from the thenundetermined guidelines range at sentencing and “impose any sentence up to and
including the maximum penalty permitted by law,” see Plea Tr. at 13, and specifically
9
The Eleventh Circuit has held that failure to advise a defendant of eligibility as a career offender is not
per se deficient and must be considered based upon the facts and circumstances of each case. United
States v. Pease, 240 F.3d 938, 941–42 (11th Cir. 2001).
10
Gonzales does state, if he had “known that he was to be charged with over 5 kilograms of cocaine,
enhanced according to the [career offender provisions], and that the agents coerced his co-defendant to
make false statements, he would have proceeded to trial. See Supporting Memorandum at 22. However,
Gonzales never asserts that the allegedly missing information concerning the career offender
enhancement would have led him to change his plea decision and proceed to trial.
19
discussed those maximum penalties with Gonzales. Thus, Gonzales understood the
potential penalties he faced based on a guilty plea. Because Gonzales “knew that there
was a possibility that he could receive the sentence that was imposed, his
disappointment with the result is not grounds to set aside the guilty plea.” Tahamtani v.
Lankford, 846 F.2d 712, 714 (11th Cir. 1988) (per curiam); see also United States v.
Himick, 139 F. App’x 227, 229 (11th Cir. 2005) (“[A] defendant's reliance on an
attorney's mistaken impression about the length of [the] sentence [including the
applicability of a career offender enhancement] is insufficient to render a plea
involuntary as long as the court informed the defendant of [the] maximum possible
sentence . . . .”). Additionally, the Court notes that the evidence against Gonzales was
quite strong, and if Gonzales was found guilty at trial, the career offender enhancement
would still have applied and his guidelines range was likely to have been 360-life
because he would not have received the three-level reduction for acceptance of
responsibility promised in the Plea Agreement.
Gonzales also contends that counsel assured him that if he pleaded guilty, “he
was only to face a sentence of ten years or less.” See Supporting Memorandum at 21.
This claim that he was not properly informed about the true consequences attendant to
his guilty plea is affirmatively contradicted by the record. See Medlock, 12 F.3d at 187;
Blackledge, 431 U.S. at 73–74 (explaining that plea colloquy statements may constitute
a “formidable barrier in any subsequent collateral proceedings”). Both the written Plea
Agreement and the Magistrate Judge specifically informed Gonzales that ten years was
the minimum sentence he would receive based on his guilty plea, Plea Tr. at 13, and
Gonzales acknowledged that the sentence he would receive might be “different than
20
any estimate[]” and it might be “more severe” than he expected. Id. at 13–14. On this
record, the Court concludes that Gonzales’ second claim of ineffective assistance of
counsel is due to be denied because he cannot show that but for this allegedly missing
advice, he would have changed his plea decision and proceeded to trial. See Hill, 474
U.S. at 59; Strickland, 466 U.S. at 695 (finding that both prongs do not need to be
addressed where the defendant makes an insufficient showing on one).11
iii.
Argument at sentencing
In his last claim, Gonzales argues that counsel performed deficiently by “fail[ing]
to zealously advocate on his behalf” at sentencing when counsel did not advocate for
Gonzales’ “criminal history category to be moved from a category six to a category five
according to U.S.S.G. § 4A1.3(b)(1),” and his attorney did not request a horizontal
departure. See Supporting Memorandum at 23. This claim of ineffective assistance,
even if true, does not undermine the validity of Gonzales’ Plea Agreement and the
attendant sentence-appeal waiver provision. See, e.g., Williams, 396 F.3d at 1342
(holding that 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 sentencing). As such, the claim is barred from collateral attack.
11
Gonzales also briefly mentions that his counsel told him he would “handle” the career offender
enhancement and advised Gonzales that he would file an appeal, but instead filed an Anders brief. See
Supporting Memorandum at 21. The Court has already concluded that Gonzales knowingly and
voluntarily agreed to the sentence-appeal waiver, which “includes a waiver of the right to appeal difficult
or debatable legal issues-indeed, it includes a waiver of the right to appeal blatant error.” Howle, 166 F.3d
at 1169. The alleged deficient conduct about which Gonzales complains here arose after the plea, thus,
this claim does not attack the validity of the plea or the waiver. Nonetheless, the Court concludes that
Gonzales’ counsel cannot be said to have engaged in deficient conduct for failing to file an appeal due to
the presence of the sentence-appeal waiver. Counsel filed an Anders brief and the Eleventh Circuit Court
of Appeals, after an independent review of the record, identified no appealable error and affirmed the
conviction.
21
Nevertheless, the Court notes that Gonzales’ claim that his attorney did not
argue for reduction of his criminal history category is refuted by the record because his
counsel did advocate for both a horizontal and a vertical downward departure.
Gonzales’ counsel argued in his sentencing memorandum and at the sentencing
hearing that the application of the career offender guideline resulted in an over
representation of Gonzales’ criminal history. See Sentencing Memorandum and
Request for Downward Departure at 3–8 (Crim. Doc. 123); Sentencing Hearing Tr. at
47–52; see Medlock, 12 F.3d at 187; Blackledge, 431 U.S. at 73–74. Additionally,
counsel argued that the Court should vary downward from the applicable guidelines.
DEFENSE COUNSEL: . . . . And I think that it would be appropriate
and reasonable to sentence him to the ten-year
minimum mandatory. This career offender, in this
case, I just think it's just too extreme.
THE COURT: Mr. Fletcher, you realize that even absent the career
offender, the operation of the career offender
guideline, Mr. Gonzales would be facing 168 to 210
months just based on the offense?
DEFENSE COUNSEL: You know, Judge, I thought it was 97 to
121.
THE COURT: Total offense level 34, criminal history category II.
DEFENSE COUNSEL: That's with the career offender.
THE COURT: No, career offender is criminal history category VI.
DEFENSE COUNSEL: I'm sorry.
THE COURT: Oh, well, the offense level.
DEFENSE COUNSEL: Yeah, he moved from a 29 to a 34. So I
think it was 97 to 121. So without the career offender
enhancement, but with his criminal history without
the enhancement, he was looking at basically the
ten-year minimum mandatory.
22
Sentencing Hearing Tr. at 48–49. As a result of these arguments, the Court ultimately
varied from the suggested guidelines range of 262–327 months and sentenced
Gonzales to 200 months. Sentencing Hearing Tr. at 53; Judgment at 2–3 (Crim. Doc.
126). Accordingly, this ineffective assistance claim would be denied on the merits.
B.
Denial of Due Process
Gonzales also asserts that his due process rights were violated, contending that
the Government “committed prosecutorial misconduct . . . by fabricating evidence
against him.” See Supporting Memorandum at 10. In the Motion to Dismiss, the
Government argues that Gonzales effectively waived this challenge to his sentence
pursuant to the sentence-appeal waiver in his Plea Agreement. See Motion to Dismiss
at 5. The Court agrees and finds that Gonzales is barred from asserting this claim as he
knowingly and voluntarily pled guilty and waived the right to collaterally attack his
sentence on this ground.
Sentence-appeal waivers such as that involved here “will be enforced in almost
all circumstances.” United States v. Garcia, 213 F. App’x 817, 821 (11th Cir. 2007)
(citing Bushert, 997 F.2d at 1350). Indeed, a defendant may waive “the right to appeal
difficult or debatable legal issues,” including blatant error, and not just frivolous claims.
United States v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999). Here, Gonzales
knowingly and voluntarily waived the right to collaterally challenge his sentence on any
ground except: (1) if his sentence exceeds his applicable guideline range as determined
by the Court; (2) if it exceeds the statutory maximum penalty; and (3) if it violates the
Eighth Amendment. Plea Tr. at 25–26; Plea Agreement at 10. Gonzales’ due process
claim does not fall within any of these exceptions, and is therefore barred from being
23
raised in this proceeding. Howle, 166 F.3d at 1168; See, e.g., United States v. Wilson,
445 F. App’x 203, 204–05, 207–09 (11th Cir. 2011) (per curiam) (enforcing petitioner’s
sentence-appeal waiver by its terms by dismissing certain collateral challenges that did
not fall within the three exceptions to the waiver). Ferrara v. United States, 456 F.3d
278, 291 (1st Cir. 2006) (“But a plea is not rendered infirm merely because [the
defendant] discovers long after the plea has been accepted that his calculus
misapprehended the quality of the [government's] case.” (internal quotations omitted));
Nguyen v. United States, 114 F.3d 699, 105 (8th Cir. 1997) (“Considering all the
circumstances, the allegedly withheld exculpatory material ‘did not compromise either
the truth or the voluntary and knowing nature of the plea.’” (quoting Campbell v.
Marshall, 769 F.2d 314, 323–24 (6th Cir. 1985), cert. denied, 475 U.S. 1048 (1986)).
Accordingly, Gonzales’ collateral claim is due to be denied as having been effectively
waived.
IV.
Certificate of Appealability Pursuant to 28 U.S.C. § 2253 (c)(1)
If Gonzales seeks issuance of a certificate of appealability, the undersigned
opines that a certificate of appealability is not warranted. This Court should issue a
certificate of appealability only if the petitioner makes "a substantial showing of the
denial of a constitutional right."
28 U.S.C. § 2253 (c)(2). To make this substantial
showing, Gonzales "must demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke,
542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that
"the issues presented were 'adequate to deserve encouragement to proceed further,'"
24
Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 n.4 (1983)).
Where a district court has rejected a petitioner's constitutional claims on the
merits, the petitioner must demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong. See Slack, 529
U.S. at 484.
However, when the district court has rejected a claim on procedural
grounds, the petitioner must show that "jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its procedural
ruling."
Id.
Upon consideration of the record as a whole, this Court will deny a
certificate of appealability.
As such, and in accordance with the Rules Governing Section 2255 Cases in the
United States District Courts, it is hereby
ORDERED:
1.
The Government’s Motion to Dismiss Petitioner’s Pro Se Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 12) is
GRANTED.
2.
Gonzales’ Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (Doc. 1) is DENIED.
3.
The Clerk shall enter judgment in favor of the Government and against
Gonzales, and close the file.
25
4.
If Gonzales appeals the denial of the Petition, the Court denies a
certificate of appealability. Because this Court has determined that a certificate of
appealability is not warranted, the Clerk shall terminate from the pending motions report
any motion to proceed on appeal as a pauper that may be filed in this case. Such
termination shall serve as a denial of the motion.
DONE AND ORDERED in Jacksonville, Florida, this 11th day of July, 2014.
i25
Copies to:
Counsel of Record
Petitioner
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