TARNAI v. UNITED STATES OF AMERICA
Filing
7
OPINION AND ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Donetta W. Ambrose on 1/12/17. (ask)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
V.
)
)
) CR No. 11-254
) CV No. 14-211
BALAZS TARNAI
OPINION AND ORDER
SYNOPSIS
On January 23, 2013, Defendant pleaded guilty to one Count of producing material
depicting the sexual exploitation of a minor, in violation of 18 U.S.C. § 2251; the remainder of
the seven-count superseding indictment was dismissed pursuant to the plea agreement, although
Defendant acknowledged responsibility for the conduct charged therein. Pursuant to a
stipulation in the plea agreement, Defendant was sentenced to a term of 180 months of
imprisonment. Before the Court is Defendant's counseled Motion pursuant to 28 U.S.C. § 2255.
In his Motion, Defendant contends that his counsel was ineffective when he failed to
communicate Defendant's acceptance of an earlier plea offer that would have resulted in a fiveyear term of incarceration, and that Defendant accepted a later, less favorable plea offer as a
result. The Government has filed a Motion to Dismiss Defendant's petition based on a collateral
attack waiver in Defendant's plea agreement. 1 On July 21, 2016, the parties appeared at an
evidentiary hearing on Defendant's Motion, with a Hungarian interpreter present in a standby
capacity. Defendant's retained counsel participated in the hearing, and filed pre- and post-
1
Briefing was completed on the parties' Motions on April 28, 2014. On November 16, 2015, Defendant filed a
"status report," asserting that the Court's failure to rule on his Section 2255 Motion violated his due process rights,
and indicating that he might seek mandamus relief in appellate court. This matter was transferred to my docket on
February 23, 2016. On February 25, 2016, in order to expedite the resolution of the Motions, I scheduled an
evidentiary hearing for March 9, 2016. At Defendant's request, the hearing was continued.
1
hearing briefs, on his behalf. For the following reasons, the Government's Motion will be
granted, and Defendant's denied.
I.
APPLICABLE STANDARDS
Relief is available under Section 2255 only under exceptional circumstances, when the
claimed errors of law are "a fundamental defect which inherently results in a complete
miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962).
II.
BACKGROUND
In this case, the Government has proffered a letter dated February 29, 2012, advising
then-defense attorney Alexander Lindsay, that it contemplated filing additional charges
following a forensic examination of Defendant's computer. That examination led to the
discovery of surreptitious video recordings of young boys using Defendant's bathroom, and the
Government contemplated adding charges for producing illegal materials in violation of 18
U.S.C. § 2251. The Government, at that time, indicated that it was willing to discuss a possible
plea agreement prior to making a final determination regarding additional charges.
Accordingly, by letter dated April 19, 2012, the Government proposed a plea agreement,
by way of a letter marked "DRAFT." The proposal provided that Defendant would plead guilty
to Count I of the indictment, charging a violation of 18 U.S.C. § 2252(a)(2), and acknowledge
responsibility for the remaining Counts. It also included a waiver of collateral attack rights.
The proposed plea outlined and contemplated an offense level of 28, which would have
generated an advisory guideline range of 78-97 months. Count I of the indictment carried a
mandatory minimum sentence of five years. The agreement also noted that the penalty may be a
term of imprisonment of not more than ten years.
2
At a July 21, 2016 evidentiary hearing on Defendant's Motion, Ms. Baker testified that
she called Mr. Lindsay in mid-May, 2012, at Defendant's request, that she spoke with Mr.
Lindsay, and that she told him that Defendant wanted to accept the Government's offer. Ms.
Baker was not present at any of Mr. Lindsay's conversations with Defendant, and was not aware
of conversations between the two after Ms. Baker's telephone call to Mr. Lindsay. Ms. Baker
does not recall Mr. Lindsay stating that he would accept the offer, but he indicated that he would
discuss it. Evidentiary Hearing Transcript, pp. 7-10, 12, 13.
Defendant testified that Mr. Lindsay discussed the plea offer with him, and that he
initially intended not to take it, and advised counsel accordingly. Then, he consulted with his
family and decided to take the offer. He recalled discussing with Mr. Lindsay "more than once"
whether he would accept the offer. He was unable to reach Mr. Lindsay at first, so he contacted
Ms. Baker. Later that day, Defendant reached Mr. Lindsay by telephone. When he spoke to Mr.
Lindsay, Defendant said, "I asked him to please take the plea offer for me." Mr. Lindsay advised
Defendant "it was all right. He would take it." Id. at 17-19.
Defendant offered the following testimony regarding his response to the plea offer:
GOVERNMENT: Isn't it true that when Mr. Lindsay first told you about the
government's April of 2012 plea offer, you told him you were innocent of the charges?
DEFENDANT: I can't recall.
Id. at 28.
***
DEFENSE COUNSEL: Did it take you a while to admit to yourself you were not
innocent?
DEFENDANT: Yes.
COUNSEL: What did you tell Mr. Lindsay about the first plea offer?
3
DEFENDANT: That originally I wasn't thinking of accepting it but I had changed my
mind.
COUNSEL: Would you have accepted that plea offer if you had been able to?
DEFENDANT: Yes.
Id. at 28-29.
Mr. Lindsay, in tum, testified that "what [Defendant] continued to maintain is his
absolute innocence in the case, that he did not commit the crimes ... we couldn't enter a plea of
guilty because he didn't admit his guilt." Id. at 32. He stated as follows:
MR.LINDSAY: The problem with Mr. Tamai was he insisted on his innocence
of the charges up until the very end and we discussed this with him at substantial
length, he could not enter a plea of guilty - we didn't even get to the specifics of
the plea agreements because he steadfastly indicated that he was innocent of the
charges. 2
GOVERNMENT: And you couldn't have him plead guilty if he was saying he
was innocent of the charges why?
**
MR.LINDSAY: We talked to Mr. Tamai about the fact that there would be a
colloquy with the judge taking the plea. It's a detailed, substantial colloquy in
federal court and that he would be asked in no uncertain terms whether he
admitted that he had done the acts with which he was accrued, and ifhe could not
say that he did it, then the Court would not accept his plea regardless of whatever
the terms were. So, as far as what we discussed with Mr. Tamai, can you admit
your guilt in this situation, and he would not and could not. So our position was
we couldn't ethically or legally put him in front of a federal judge when he was
telling us he was innocent of the charges.
Id. at 38-39.
Mr. Lindsay further explained:
2
Upon questioning by defense counsel, Mr. Lindsay later explained his testimony that "we didn't get to the
specifics" as follows: "What I said was as we never got - as far as accepting the plea, we met with Mr. Tamai, and
with regard to the - we discussed the specifics of the plea offer. We told him exactly what the terms were, and we
told him what he would have to go through to accept the plea, which he would have to respond to the Court's
questions and he would have to admit his guilt ... I don't recall that I went into the specifics .... Ifl said that [we
didn't get to the specifics], what I meant was is this, is that we went over the letters with Mr. Tamai and with regard
to going into the specifics of entering a plea. We didn't get to that point because he steadfastly indicated he was
innocent." Evidentiary Hearing Transcript, pp. 49-50.
4
[E]very time there was a plea letter we received, what we did, Mr. Smith and
myself, would take the plea letter, go over the terms of the plea letter with Mr.
Tamai and when we would get to the point where we discussed whether or not he
could admit that he did these things, he said he could not.
Id. at 50.
James Smith, a paralegal who worked with Mr. Lindsay on Defendant's case, testified
as follows:
I mean, he maintained his innocence throughout and we explained to him that he
would have to appear in front of a judge of this Court and that there would be a
colloquy and he would have to acknowledge his guilt and that he would have to
convince a judge of his guilt and the facts that he would have to admit to would
be whatever the government proffered as the evidence against him ... As the
evidence continued to roll in, at some juncture it just becomes damage control but
he steadfastly maintained his innocence ....
***
Well, the problem with it was he continued to steadfastly maintain his innocence.
He said he wanted to take a plea but he said he was not going to admit guilt, and
we tried to explain to him the nature of what would happen during a colloquy
with the judge.
Id. at 59, 63.
Mr. Smith stated that Mr. Lindsay "couldn't put [Defendant] before the Court knowing
that he was going to say I'm innocent." Id. at 64.
By letter dated May 23, 2012, the Government wrote to defense counsel, confirming its
understanding that counsel and Defendant had met, and Defendant was unwilling to accept the
five-year minimum represented by the plea deal.
Defendant declined a second plea offer, dated June 18, 2012. At that point, the
Government had uncovered additional evidence. Defendant testified that he declined this second
plea offer, because Mr. Lindsay advised him that they would be able to have certain evidence
5
suppressed. Id. at 19-20. Defendant pursued a suppression motion, which was denied following
a hearing. On the eve of trial, Defendant agreed to plead guilty, and accepted the Government's
third plea offer.
In this case, the operative, ultimately-accepted plea agreement is dated January 23, 2013,
and reads, in pertinent part, as follows:
Balazs Tamai further waives the right to file a motion to vacate sentence, under
28 U.S.C. § 2255, attacking his conviction or sentence, and the right to file any
other collateral proceeding attacking his conviction or sentence.
In the plea agreement, the Government retained the right to advise the sentencing
court of the full nature and extent of the involvement charged in the superseding
indictment. The parties agreed that the appropriate sentence would include a term of
imprisonment of fifteen years, and a life term of supervised release. On January 13,
2013, Defendant and his counsel signed the agreement.
At the plea and sentencing hearing on January 13, 2013, the Defendant, with an
interpreter present, acknowledged that he understood everything that the Court was
saying. Counsel for the Government then read the terms of the plea agreement into the
record. Then, the following exchanges occurred:
GOVERNMENT: [P]rior to the filing of the superseding indictment in this case
and the suppression hearing, there were two written proposals in the form of draft
plea agreements sent to Defendant's counsel dated April 19, 2012 and June 18,
2012. And more recently in the last month there was one informal discussion
between counsel for the Government and defense counsel not reduced to writing
regarding another possible term of years which Defendant rejected.
DEFENSE COUNSEL: That's correct, your honor.
***
COURT: You're currently represented by attorney Al Lindsay. Are you satisfied
with Mr. Lindsay's representation up to this point?
6
DEFENDANT: Yes.
***
[Government counsel read the terms of the plea agreement into the record,
including the collateral attack waiver.]
COURT: Was that review of the terms of the plea agreement consistent with your
understanding of the plea agreement, Mr. Tamai?
DEFENDANT: Yes.
****
COURT: Furthermore, sir, you're waiving your right to file a motion to vacate
sentence attacking your conviction or sentence and the right to file any other
collateral proceeding attacking either your conviction or sentence. Do you
understand those waivers?
DEFENDANT: Yes.
***
COURT: Has anyone coerced you or forced you into pleading guilty?
DEFENDANT: No.
COURT: Has anyone threatened you?
DEFENDANT: No.
COURT: Would it be a fair statement and an accurate statement that your plea of
guilty to Count IV is the product of your own free and rational choice?
DEFENDANT: Yes.
***
COURT: Mr. Tamai, is that your signature that appears on the plea agreement
letter?
DEFENDANT: Yes.
COURT: And you executed this plea agreement letter of your own free will?
DEFENDANT: Yes.
7
Plea Hearing Transcript, pp. 6, 22-24, 31, 32, .
At the evidentiary hearing, Mr. Lindsay testified that when Defendant decided to
plead guilty on January 23, 2013, he reviewed the terms of the plea agreement with
Defendant. In response to the Government's question regarding whether he reviewed
with Defendant the collateral attack waiver, he responded "we did." Evidentiary
Hearing Transcript, p. 39. He further testified as follows:
GOVERNMENT: Did you do this in a careful and thorough manner?
MR.LINDSAY: We went over it in substantial detail, yes.
GOVERNMENT: Did the Defendant affirmatively represent to you that he
understood the rights he was waiving?
MR. LINDSAY: Yes.
III.
GOVERNMENT'S MOTION TO DISMISS
a. Collateral Attack Waiver
I first address the Government's contention that Defendant's waiver of his collateral
attack rights, via his guilty plea, precludes his Motion.
Generally, in this Circuit, waivers of the right to collateral attack are valid if entered into
knowingly and voluntarily. United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001). Claims
challenging the voluntariness of a collateral attack waiver, or the effectiveness of counsel with
respect to the waiver itself, may survive the waiver. Accordingly, courts will consider an
ineffectiveness claim that relates directly to the negotiation of the waiver itself. United States v.
Fagan, No. 04-2176, 2004 U.S. Dist. LEXIS 22456, at **9-11 (E.D. Pa. Oct. 4, 2004). In other
words, unless the negotiation of the waiver itself was tainted, the waiver may be upheld. Id. In
this context, it is important to note Supreme Court's observation that "the representations of the
8
defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any findings made by the
judge accepting the plea, constitute a formidable barrier in any subsequent collateral
proceedings. Solemn declarations in open court carry a strong presumption of verity."
Blackledge v. Allison, 431U.S.63, 73-74, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977). I am
mindful, too, of the "fundamental interest in the finality of guilty pleas." Hill v. Lockhart, 474
U.S. 52, 58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).
At the plea colloquy in this case, Defendant, under oath and in open court, acknowledged
the terms of the plea, including the waiver, and accepted them. At no time did he indicate, or
suggest that he was in any way prevented from indicating, that he had intended to accept an
earlier plea offer. He did not disagree with the Government's description of the earlier plea
offers, and his rejection thereof. Moreover, Defendant necessarily knew, well before and up
until he entered a guilty plea, that counsel had not accepted any prior offers on his behalf.
Defendant suggests that he failed to bring the matter to the Court's attention because he did not
understand the "technicalities" involved, was not familiar with the legal system, and was
instructed by his counsel not to speak unless he was asked a question. Assuming that these
factors explain Defendant's silence, however, they do not address his affirmative, sworn
declarations. The Court asked Defendant several relevant, direct questions: whether he
understood that he was waiving his collateral attack rights; whether the Government's recitation
of the terms of the plea agreement was consistent with his understanding of the agreement; and
whether he had been satisfied with Mr. Linsday's representation. 3 Defendant responded in the
affirmative to each question. Taking into account both Defendant's silence and his speech, it is
3
Certainly, as Defendant argues, his indication of satisfaction with Mr. Lindsay's representation does not preclude
his ineffectiveness claim. The question did, however, provide one of several opportunities, in response to a question
directed to him by the Court, for Defendant to raise any concerns regarding an earlier plea offer. I note that
Defendant's suggestion that "[n]o court would accept a guilty plea from a defendant who did not say that he was
satisfied with his lawyer" might be deemed to apply, as well, to a defendant who will not admit guilt.
9
significant that he failed to raise any concerns with the Court at any time prior to the conclusion
of his plea hearing.
In addition, there is no suggestion that Defendant, who holds a Ph.D., was a professor at
the time of his arrest, and is fluent in English, was unable to or did not understand the terms of
his plea or waiver. At the evidentiary hearing, counsel testified that he reviewed the waiver with
Defendant in substantial detail, and that Defendant affirmatively indicated that he understood the
rights that he was waiving. Defendant concurred that counsel reviewed the plea agreement with
him - albeit in a "short way"-- prior to the plea hearing. At the plea colloquy, Defendant
acknowledged the waiver and stated, on the record, that he accepted it. There are simply no
grounds for finding that the agreement that he actually entered on January 23, 2013 was anything
other than knowing and voluntary.
Defendant further suggests, however, that ethical rules prohibit enforcement of the
waiver. In so doing, he argues that counsel knew he should have accepted the earlier plea offer,
and thus favored the waiver in order to insulate himself from later claims. I note, however, that
the earlier plea offers both also included waivers of collateral attack rights. This undermines
Defendant's contention that counsel acted out of self-interest with respect to the chronology of
the pleas. 4 Further, there is no suggestion in the record, other than the tenuous circumstances to
which Defendant points, that counsel acted out of self-interest. Moreover, although the attorney
ethics surrounding such waivers have recently been called into question, our Court of Appeals
has affirmed their enforceability as a legal matter. li, Muller v. Sauers, 523 Fed. Appx. 110,
111-12 (3d Cir. 2013 ). As Ethics Opinion 12-02 acknowledges, the Advisory Committee's
4
Mr. Lindsay also indicated that each of the three times they received a plea offer, each of which contained a
collateral attack waiver, the terms of the offer were reviewed with Defendant. Mr. Lindsay's testimony in this
regard has not been contradicted. Although my decision today does not rely in any way on this unestablished fact, I
note that this testimony suggests that the accepted plea did not represent Defendant's first exposure to the concept of
a collateral attack waiver.
10
position is "aside from whether the courts might approve such waivers." NACDL Ethics
Advisory Committee Formal Opinion 12-02 (Oct. 2012). Further, Ethics Advisory Opinions are
not binding on federal courts. For these reasons, collateral attack waivers continue to be
enforced in this Circuit. Cf. United States v. Grimes, 739 F. 3d 125 (3d Cir. 2014); United States
v. Gardner, 2015 U.S. Dist. LEXIS 103762 (W.D. Pa. Aug. 7, 2015). 5 The extent or propriety of
the Government's compliance with its own internal policies is not, in this context, a matter for
this forum. In sum, Defendant's ethics argument is unavailing.
b.
Miscarriage of Justice
I will next consider whether enforcing the waiver would work a miscarriage of justice. In
so doing, I am to consider "[t]he clarity of the error, its gravity, its character (M., whether it
concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on
the defendant, the impact of correcting the error on the government, and the extent to which the
defendant acquiesced in the result." United States v. Mabry, 536 F. 3d 231, 242 (3d Cir. 2008)
(quoting United States v. Teeter, 257 F. 3d 14, 25-26 (1st Cir. 2001)). Courts are to apply the
miscarriage of justice exception "sparingly and without undue generosity." United States v.
Wilson, 429 F.3d 455, 458 (3d Cir. 2005) (quoting United States v. Teeter, 257 F.3d 14, 26 (1st
Cir. 2001)).
Considering these factors, and all of the attendant circumstances, I find that enforcing the
waiver does not work a miscarriage of justice. For example, as discussed infra, the alleged error
is not clear, Defendant acquiesced entirely in the result and did so on the record, the error does
not relate to the validity of the underlying conviction for the crime charged, and invalidating the
plea would certainly have a significant impact on the Government. Accordingly, enforcing the
waiver would not work a miscarriage of justice.
5
Khattak remains in force. See, e.g., United States v. Creque, 2016 U.S. App. LEXIS 22609 (3d Cir. Dec. 20, 2016).
11
IV.
DEFENDANT'S SECTION 2255 MOTION
a. Ineffective Assistance of Counsel
Although the waiver will be enforced, I separately address the merits of Defendant's
argument that counsel was ineffective in failing to communicate his acceptance of an earlier plea
deal. Cf. United States v Shedrick, 493 F. 3d 292, 297 (2007). As my sister Court has observed,
"the Third Circuit has exercised its jurisdiction to consider ineffective assistance of counsel
claims even when a plea agreement bars such a collateral attack, ... and an adjudication on the
merits is always preferable." Madison v. United States, 2016 U.S. Dist. LEXIS 57665, at *4 n. 1
(D.N.J. Apr. 28, 2016). In this particular case, it is valuable to clarify that even absent the
waiver, Defendant's Motion would be denied on substantive grounds.
In the context of an ineffective assistance of counsel claim, a court should be "highly
deferential" when evaluating an attorney's conduct; there is a "strong presumption" that the
attorney's performance was reasonable. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). "It is ... only the rare claim of ineffectiveness of counsel that
should succeed under the properly deferential standard to be applied in scrutinizing counsel's
performance." United States v. Gray, 878 F. 2d 702, 711 (3d Cir. 1989).
To demonstrate that counsel was ineffective, a defendant must show that counsel's
performance fell below "the wide range of professionally competent assistance" and also that the
deficient conduct prejudiced defendant. Strickland, 466 U.S. at 687. Counsel's conduct must be
assessed according to the facts of the particular case, viewed as of the time of counsel's conduct.
Id. at 689. Under the prejudice prong, the pertinent question is "whether there is a reasonable
probability that, absent the errors," the result would have been different. Id. at 695; see also
Gray, 878 F.2d at 709-13. The prejudice prong of Strickland rests on "whether counsel's deficient
12
performance renders the result of the ... proceeding fundamentally unfair," or strips the
defendant of a "substantive or procedural right to which the law entitles him." Id. at 844.
1. Counsel's Performance
First, I look to Strickland's initial inquiry, and examine whether counsel's performance
was deficient. Defendant casts the story as one in which an attorney acted as unilateral,
ethically challenged "gatekeeper" with respect to his client's wish to plead guilty, and
determined that he could not allow his client to act on his wish to plead. This argument is no
doubt occasioned by Mr. Lindsay's testimony that he could not "ethically or legally allow" his
client to enter a plea. This characterization of the issue, however, obscures the material question
at bar. Defendant's Motion does not hinge on Mr. Lindsay's decision, based solely on his own
ethics, that he could not "allow" Defendant to plead; it hinges, instead, on the adequacy of Mr.
Lindsay's approach to Defendant's incomplete acceptance of the plea offer. 6
The Court credits and accepts the testimony of both Defendant and Ms. Baker that they
each communicated to Mr. Lindsay that Defendant wished to accept the first plea offer. It also
accepts, however, that Defendant told counsel that he was unwilling to admit guilt, which
counsel explained to Defendant was part and parcel of a guilty plea. Defendant testified that he
does not recall telling Mr. Lindsay, in the context of discussing the first plea offer, that he was
innocent. He offered no evidence, however, to contradict the testimony of Messrs. Lindsay and
Smith that Defendant did, in fact, maintain his innocence. Likewise, Defendant has proffered no
evidence that he was willing to admit to the charged conduct at that time, or that he advised Mr.
Lindsay as such. Messrs. Lindsay and Smith both testified that the plea process and the necessity
6
There is no dispute that counsel communicated to Defendant the first plea offer. Accordingly, there is no need to
separately address Defendant's contentions regarding counsel's duty to communicate an informal plea offer.
13
of admitting guilt therein were explained to Defendant, and that Defendant was unwilling to
admit guilt. That testimony remains uncontradicted.
The operative facts, then, are that Defendant told his counsel that he wished to accept the
plea offer. Accepting the plea offer would require him to "plead guilty," --i.e., declare his
responsibility for the wrongdoing with which he was charged - but, at the pertinent time,
Defendant maintained that he was unwilling to do so. As a result, counsel then communicated to
the Government a rejection of the plea. There is no evidence that Defendant communicated to
Mr. Lindsay both his wish to accept the plea, and a newly acquired willingness to admit guilt, in
connection with the April 19, 2012 plea offer.
Thus, the question before the Court, to adopt Mr. Smith's words, is whether the
Constitution requires counsel to communicate acceptance of a plea offer when his client "said he
wanted to take a plea but he said he was not going to admit guilt"? To locate a deficiency here
would require a defense attorney to make a senseless choice between relaying acceptance of an
offer, when the client does not actually accept the sine qua non of the offer - i.e., the admission
of guilt -- or rendering ineffective assistance. Indeed, a Court is required to determine that there
is a factual basis for a plea, prior to entering judgment on a guilty plea. Fed. R. Crim. P.
1 l(b)(3). It is well-settled that counsel is not ineffective for failing to take frivolous action, and
there is no reason to believe that the plea would have been accepted absent an admission of guilt.
Troublingly, finding ineffective assistance here would also effectively "endors[e] ... precedent
that ... might suggest a duty on the part of defense counsel to arm-twist a client who maintains
his innocence into pleading guilty." United States v. Pitcher, 559 F.3d 120, 125 (2d Cir. 2009).
On the present record, I find that counsel's conduct in rejecting the April, 2012 plea offer on
14
Defendant's behalf did not fall below the wide range ofreasonably competent assistance
contemplated by applicable standards.
2. Prejudice
Even assuming that counsel was ineffective, the second prong of Strickland remains a
difficult hurdle for Defendant. In a case such as this one, in which a defendant pleads guilty and
then claims that ineffective assistance of counsel caused him to lose a more favorable plea offer,
"Strickland's inquiry into whether 'the result of the proceeding would have been different,'
requires looking ... at ... whether he would have accepted the offer to plead pursuant to the
terms earlier proposed." Missouri v. Frye, 566 U.S. 134, 132 S. Ct. 1399, 1410, 182 L. Ed. 2d
379 (2012). 7 Moreover, Defendant must also show a reasonable probability that "the prosecution
would not have withdrawn [the proposed plea] in light of intervening circumstances." Lafler v.
Cooper, 132 S. Ct. 1376, 1385, _U.S._, 182 L. Ed. 2d 398 (2012). The Supreme Court has
clarified as follows:
In order to complete a showing of Strickland prejudice, defendants who have
shown a reasonable probability they would have accepted the earlier plea offer
must also show that, if the prosecution had the discretion to cancel it or if the trial
court had the discretion to refuse to accept it, there is a reasonable probability
neither the prosecution nor the trial court would have prevented the offer from
being accepted and implemented. This further showing is of particular
importance because a defendant has no right to be offered a plea, nor a federal
right that the judge accept it.
~.
132 S. Ct. at 1410 (citations omitted).
If I were to find the first prong of Strickland fulfilled, Defendant's claim would likely fail
at the second. Again, I accept Defendant's evidence that he wished to accept the earlier plea
offer and that his wish was conveyed to his attorney. That evidence, however, does not establish
Although~ did not address informal plea offers, courts have expressed doubt that the failure to convey
acceptance of an informal offer should be disregarded under the Sixth Amendment ineffectiveness claim. See
United States v. Archulet~ 2016 U.S. Dist. LEXIS 108516, at **20-21 (D.N.M. Apr. 6, 2016). I assume without
deciding~ applies here.
7
15
a reasonable probability that neither the trial court nor the prosecution would have prevented the
offer from being accepted or implemented. Defendant expressed his unwillingness to admit guilt
at the pertinent time. Again, he has offered no grounds for concluding that the Court would have
accepted Defendant's plea if he failed to admit guilt during the colloquy; likewise, he has offered
no reason to believe that the Government, had it been advised that Defendant wished to accept
the plea deal without admitting guilt, would have proceeded with the remaining terms of the
plea. Indeed, any such conclusion would find no support in this Court's knowledge and
experience of the Court's and the Government's practices within this District. 8
CONCLUSION
In sum, Defendant waived his right to collaterally attack his conviction and sentence, and
the Government's Motion will be granted. Had he not done so, however, I would find that
Defendant has not demonstrated either deficient performance or prejudice, within the meaning of
Strickland. The Government's Motion will be granted, and as a result, Defendant's denied.
8
Under 28 U.S.C.§ 2253(c)(2), a "certificate of appealability may issue only ifthe applicant has made a substantial
showing of the denial of a constitutional right." For the reasons stated in the body of the Opinion, Defendant has not
made such a showing. To the extent that I am required to decide whether a certificate of appealability shall issue,
none shall issue.
16
ORDER
AND NOW, this
/£,
ih
day of January, 2017, it is hereby ORDERED, ADJUDGED, and
DECREED that the Government's Motion to Dismiss is GRANTED, and Defendant's Motion to
Vacate is DENIED.
BY THE COURT:
Donetta W. Ambrose
Senior Judge, U.S. District Court
17
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