Deering v. USA
Filing
27
OPINION AND ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Juan M. Perez-Gimenez on 11/29/2016. (NNR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Daniel Deering,
Petitioner,
CIVIL NO. 16-1655 (PG)
v.
United States of America,
Respondent.
OMNIBUS OPINION AND ORDER
the
court
is
petitioner
Before
Daniel
Deering’s
(“petitioner” or “Deering”) motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255 (Docket No. 1), and the United
States’ (“respondent” or the “government”) opposition thereto (Docket
No. 17). In addition, the petitioner has filed a motion requesting
that a pretrial conference be set, followed by an evidentiary hearing
or,
alternatively,
reasons
set
an
forth
oral
below,
argument.
the
Court
See
Docket
DENIES
No.
24.
the
motion
petitioner’s
For
to
vacate (Docket No. 1) and DENIES the motion filed at Docket No. 24.
I.
BACKGROUND
On February 7, 2013, after waiving the right to be charged by
means of an indictment, Deering pled guilty to a One-Count Information
charging him with conspiracy to engage, and cause others to engage in
the
wholesale
distribution
in
interstate
commerce
of
prescription
drugs without a license, in violation of 18 U.S.C. § 371 and 21 U.S.C.
§§ 331(t), 353(e)(2)(A).1 See Crim. No. 13-76 (PG), Docket Nos. 1 and
2.
Deering,
a
resident
of
Orange
County,
California,
was
in
the
business of buying and selling diverted prescription drugs to various
prescription-drug
wholesale
companies.2
See
Crim.
No.
13-76
(PG),
Docket No. 4. From approximately July 2007 to March 2011, Deering, in
furtherance
diverted
of
the
conspiracy,
pharmaceuticals
in
identified
California;
unlicensed
shipped
sources
the
of
diverted
pharmaceuticals to wholesale companies in Puerto Rico, and supplied
said companies with pedigrees that falsely stated the prescription
1
On that same date, the written Plea and Cooperation Agreement (hereinafter,
the “plea agreement”) and its supplement were filed with the court. Crim. No. 13-76
(PG), Docket Nos. 4 and 5.
2
The distribution of prescription drugs was made via the petitioner’s wholly
owned and controlled corporation, RTL Health Source Corp.
Civil No. 16-1655 (PG)
Page 2
drugs came from authorized distributors. See id. at pp. 9-10. The
wholesale companies, which were owned and operated by one of Deering’s
co-conspirators,
then
sold
the
diverted
prescription
drugs
to
unsuspecting hospitals, pharmacies, and clinics. See id.
1. Plea Hearing, Sentencing & Cooperation in between3
A
plea
hearing
was
held
on
February
7,
2013
before
U.S.
Magistrate Judge Marcos E. Lopez, during which Deering was assisted
and represented by his two retained attorneys, Gregory Lee (“Lee”),
who appeared pro hac vice, and Miguel Oppenheimer (“Oppenheimer”) as
local
counsel.
advising
the
Crim.
court
of
No.
his
13-76
(PG),
intention
Docket
to
Nos.
plead
6
and
guilty,
7.
Deering
Upon
was
placed under oath and apprised of his right to plead not guilty,
proceed to a trial by jury, be represented by counsel, remain silent
and be presumed innocent, among others. See Federal Rule of Criminal
Procedure 11(b). After instructing petitioner of the consequences of
pleading
guilty,
questioning
him,
listening
to
his
responses
and
observing his demeanor, Magistrate Judge Lopez made a determination
that Deering was fit to enter a plea of guilty. To that end, a Report
& Recommendation (“R&R”) was issued by the Magistrate Judge and later
adopted by this court. See Crim. No. 13-76 (PG), Docket No. 12.
Subsequently, and pursuant to the plea agreement, Deering met
with
government
officials
on
numerous
occasions
for
cooperation
purposes. As a result, the government requested a downward departure
under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 prior to Deering’s
sentencing hearing. See Crim. No. 13-76 (PG), Docket No. 39.
On February 18, 2016, Deering was sentenced to 24 months of
imprisonment and to three years of supervised release as to Count One
of the Information. Due to the petitioner’s substantial cooperation,
the court reduced the offense level and sentenced him to a term within
the corresponding guideline range. Moreover, since the court imposed a
sentence in accordance with the terms, conditions and recommendations
of the plea agreement, the waiver of appeal and judgment contained
3
In its response, the government refers to the February 7, 2013 hearing as both
the “waiver of indictment hearing” and “change of plea hearing”. See e.g. Docket No.
17 at pp. 3 and 8. To clarify, the record shows that on February 7, 2013 the case was
called for (1) waiver of indictment, (2) filing of information, and (3) plea hearing.
See Crim No. 13-76 (PG), Docket No. 6. For present purposes, any reference made herein
to the “plea hearing” shall be understood to encompass all of the above-mentioned
acts.
Civil No. 16-1655 (PG)
Page 3
therein became effective on that same date. See Crim. No. 13-76 (PG),
Docket No. 42.
Shortly thereafter, Deering filed a motion to vacate his sentence
under 28 U.S.C. § 2255, alleging he received ineffective assistance of
counsel. See Docket No. 1. On July 11, 2016, the government filed its
opposition
to
petitioner’s
motion
to
vacate.
In
short,
it
argues
Deering’s motion lacks merit and should be denied without a hearing.
See Docket No. 17 at pp. 4-5. The court agrees.
II.
DISCUSSION
Pursuant to 28 U.S.C. § 2255, a federal prisoner may move to
vacate, set aside, or correct his sentence “upon the ground that the
sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.” 28
U.S.C § 2255; Hill v. United States, 368 U.S. 424, 426-427, 82 S.Ct.
468 (1962); Ellis v. United States, 313 F.3d 636, 641 (1st Cir.2002).
A. Ineffective Assistance of Counsel
The Sixth Amendment guarantees that in all criminal prosecutions,
the accused has a right to the assistance of counsel for his or her
defense. U.S. Const. amend. VI. Where, as here, the petitioner moves
to vacate his sentence on an ineffective assistance of counsel basis,
he
must
show
that
“counsel’s
conduct
so
undermined
the
proper
functioning of the adversarial process that the trial cannot be relied
upon as having produced a just result.” Strickland v. Washington, 466
U.S. 668, 686, 104 S.Ct. 2052, 2064 (1984); see also Argencourt v.
United States, 78 F.3d 14, 16 (1st Cir.1996)(a petitioner seeking to
vacate his sentence based on the ineffective assistance of counsel
bears a very heavy burden).
To be successful on his claim, the petitioner must satisfy a twopart test. First, he must show that “counsel’s representation ‘fell
below an objective standard of reasonableness.’” Padilla v. Kentucky,
130 S.Ct. 1473, 1482 (2010)(quoting Strickland, 466 U.S. at 688, 104
S.Ct. 2052). Second, the petitioner must establish that there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been more favorable to him.
See United States v. Carrigan, 724 F.3d 39, 44 (1st Cir.2013)(citing
Civil No. 16-1655 (PG)
Page 4
Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012)). Thus, the petitioner
must demonstrate both incompetence and prejudice. Failure to prove one
element proves fatal for the other. See United States v. Caparotta,
676 F.3d 213, 219 (1st Cir.2012).
Challenges to counsel’s ineffective performance in the guilty
plea context are also evaluated under the two-part Strickland test.
See
Hill,
F.Supp.2d
474
U.S.
168,
178
52,
58;
Torres-Santiago
(D.P.R.2012).
The
v.
analysis
United
only
States,
(and
865
slightly)
differs with respect to the second, or prejudice, prong which focuses
on whether “counsel’s performance affected the outcome of the plea
process.” Hill, 474 U.S. at 58-59, 106 S.Ct. 366. To satisfy this
requirement, the petitioner must show “a reasonable probability that,
but for counsel's errors, he would not have pled guilty and would have
insisted on going to trial.” United States v. Colon-Torres, 382 F.3d
76,
86
(1st
Cir.2004)(quoting
Hill,
474
U.S.
at
59,
106
S.Ct.
366)(internal quotation marks omitted).
In the present case, the petitioner alleges attorney Lee was
ineffective in that (1) he provided erroneous, pre-arrest advice on
the legality of the conduct which formed the basis of petitioner’s
conviction,4 and (2) later failed to disclose the fact that such advice
may have given rise to a conflict of interest. See Docket No. 1 at
page 1. For that reason, Deering concludes that his decision to enter
a guilty plea was not made voluntarily, intelligently, and knowingly;
rather, it was the product of Lee’s deficient representation. The
court will address each claim, or subset thereof, in turn.
Before
doing
so,
however,
we
remind
litigants,
and
habeas
petitioners in particular, of the following: the right to counsel
under
the
adversarial
Sixth
Amendment
proceeding
or
is
premised
trial,
on
“access
the
to
notion
counsel’s
that
in
skill
an
and
knowledge is necessary to accord … ample opportunity to meet the case
of the prosecution[.]” Strickland, 466 U.S. at 685, 104 S.Ct. 2052.
That right does not extend to, or guarantee, competent legal counsel
regarding all imaginable aspects of the accused’s life. Thus, for
present purposes, the relevant inquiry is whether the petitioner was
4
Specifically, he claims Lee “advised [him] in writing that the conduct which
ultimately formed the factual basis of his conviction would not result in criminal
liability.” Docket No. 2 at pp. 1-2.
Civil No. 16-1655 (PG)
effectively
Page 5
assisted
by
counsel
in
the
particular
proceeding
envisioned by the amendment--the criminal prosecution. See U.S. Const.
amend. VI.
1. Pre-prosecution counsel
Together with his § 2255 motion, Deering submitted a letter dated
June 27, 2008, where Lee provided the allegedly erroneous, pre-arrest
advice. See Docket No. 1-2 at pp. 2-3. As Deering acknowledges in his
motion to vacate, the letter was sent in response to his request for a
legal opinion on the manner in which to conduct his business within
the secondary wholesale market for drug prescriptions. Specifically,
petitioner inquired as to the pedigree laws which require compliance
and the payment of his invoices in cash. See id. at page 1.
In
his
letter,
Lee
addressed
the
general
framework
of
the
pedigree laws applicable to the prescription drug market, reminding
Deering that “if a law is in place it is there for a reason…in this
case…[,] the protection of the chain of distribution is of the highest
priority.” Id. at page 2. As to the issue of compliance with such laws,
Lee’s advice was “to display the end of the pedigree, which shows that
the authorized distributor is true and correct.” Id. at page 2. Lee
further
emphasized
counterfeit
industry
merchandise
or
concerns
with
adulterated
the
introduction
products
in
of
interstate
commerce. See Docket No. 1-2 at pp. 2-3. Regarding the payment of
invoices
in
cash,
Lee’s
counseled
petitioner
to
“keep
meticulous
records and file the appropriate tax forms” disclosing such payments.
Id. at page 3.
Contrary to Deering’s assertions, Lee’s legal opinion did not
contemplate or sanction the conduct for which the petitioner entered a
guilty plea. That conduct included supplying diverted pharmaceuticals
with
pedigrees
that
falsely
stated
they
had
been
purchased
from
authorized distributors. Indeed, in the opinion letter Lee went as far
as to advise the petitioner to disclose the middlemen in the pedigrees
upon the request by any regulatory body or in the event of a recall.
See
id.
at
page
2.
Ultimately,
Lee’s
advice
was
not
erroneous,
unprofessional or even misleading. But even assuming the letter at
issue contained subpar counsel, the relevant inquiry here would still
be whether it gave rise to a conflict of interest that adversely
Civil No. 16-1655 (PG)
Page 6
affected Lee’s performance at any stage of the criminal prosecution
that would trigger the protections of the Sixth Amendment.
B. Conflict of Interest
Case law distinguishes ineffective assistance from conflict of
interest claims. See Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100
S.Ct.
1708
(1980)(holding
that
a
defendant
who
did
not
raise
the
alleged conflict during the criminal case “must demonstrate that an
actual
conflict
of
interest
adversely
affected
his
lawyer’s
performance”); United States v. Burgos-Chaparro, 309 F.3d 50, 52 (1st
Cir.2002)(distinguishing
interest
claims
in
ineffective
the
usual
assistance
context
and
of
conflict
attorney’s
of
joint
representation of criminal defendants). The First Circuit Court of
Appeals has explained that “[w]hen a defendant’s claim rests solely on
allegations that counsel performed ineffectively or incompetently, the
defendant must also show prejudice.” United States v. Segarra-Rivera,
473 F.3d 381, 385 n. 2 (1st Cir.2007)(citing Strickland, 466 U.S. at
692-93,
104
S.Ct.
2052;
Scarpa
v.
DuBois,
38
F.3d
1,
8-9
(1st
Cir.1994)). If, however, a defendant makes a timely and colorable
showing of an actual conflict of interest on the part of his or her
attorney, he or she “may be entitled to relief without regard to proof
of prejudice.” Id. (citing Cuyler v. Sullivan, 446 U.S. at 349-50, 100
S.Ct. 1708; United States v. Torres-Rosario, 447 F.3d 61, 64 (1st
Cir.2006)).
For Sixth Amendment purposes, an “actual conflict” will require a
showing of “a conflict sufficient to displace that presumption-one
that adversely affects counsel’s performance.” Id. (quoting Mickens v.
Taylor,
535
U.S.
162,
172
n.
5,
122
S.Ct.
1237
(2002)).
A
mere
disagreement between lawyer and client rarely amounts to an actual
conflict sufficient to trigger the amendment’s protections. See id.
Nonetheless,
between
an
“[c]ourts
attorney
have
and
recognized
his
client
actual
when
conflict
pursuit
of
of
interest
a
client’s
interests would lead to evidence of an attorney’s malpractice.” United
States
v.
Soldevila-Lopez,
17
F.3d
480,
486
(1st
Cir.1994)(citing
cases). In order to show an actual conflict of interest, a defendant
(or habeas petitioner) must demonstrate that “(1) the lawyer could
have pursued a plausible alternative defense strategy or tactic and
(2) the alternative strategy or tactic was inherently in conflict or
Civil No. 16-1655 (PG)
Page 7
not undertaken due to the attorney’s other interests or loyalties.”
Id., at 486 (citing Guaraldi v. Cunningham, 819 F.2d 15, 17 (1st
Cir.1987)).
Here, Deering argues that Lee labored under a hidden conflict of
interest
because
he
appeared
to
be
“more
concerned
with
his
own
position and consequences than those of his client.” Docket No. 2 at
page 5. The petitioner contends that the “only logical explanation”
for Lee’s actions, in both concealing the opinion letter – and hence,
the basis for the purported conflict - and encouraging Deering to
plead guilty, was to avoid presenting the advice-of-counsel defense or
other
embarrassing
Deering
refused
to
consequences.
See
Docket
No.
plead
and
instead
insisted
guilty
2.
That
is,
had
on
going
to
trial, Lee would have been faced with having to testify in favor of
his
client
and
against
his
own
self-interest
and
professional
reputation. The record, however, readily belies Deering’s theory.
By his own admission, Lee’s opinion letter was disclosed to the
prosecution by Deering himself early in 2013. See Docket No. 1-1 at
page 3. In its opposition to the motion to vacate, the government
concedes that the letter was made available without it bearing any
significant consequence on the outcome of plea negotiations or the
case. See Docket No. 17 at pp. 8-9. No facts have been called to the
court’s
attention
indicating
that
Lee’s
counseling
regarding
petitioner’s acceptance of the government’s plea offer was directly
related to conflicting interests between lawyer and client. Notably,
Deering falters at evincing that were it not for counsel’s alleged
ineffectiveness or omissions he would have maintained his innocence
and gone to trial.
Other than Deering’s wishful conjecture, nothing in the record
suggests that Lee would have been called to testify in such an event.
Significantly,
his
pre-prosecution
advice
postdates
Deering’s
immersion in the prescription drug diversion scheme in July of 2007.
Consequently, regardless of Lees’ counsel, the fact remains that by
the time Deering received the opinion letter he was already engaging
in, and thereafter continued to engage in, the wholesale distribution
of
diverted
undisputed
prescription
that
Deering
drugs
agreed
without
to,
and
a
in
license.
fact
did
It
is
also
substantially
cooperate with the United States in the prosecution of other related
Civil No. 16-1655 (PG)
Page 8
cases. His ability to do so by identifying critical aspects of the
scheme, such as the participants, the brands of prescription drugs and
their costs, severely undercuts his post-conviction attempt to deny,
or even limit, his knowing participation in the same.
In light of the ample evidence indicating that the petitioner was
well aware of the illegality of his conduct, the advice-of-counsel
defense is implausible on its face. See Covey v. United States, 377
F.3d 903 (8th Cir.2004)(rejecting viability of the “advice of counsel”
defense, and thus, defense attorney’s alleged conflict of interest,
where all of the evidence indicated that the defendant acted with the
requisite criminal intent); but see United States v. Marcano-Garcia,
622 F.2d 12 (1st Cir.1980)(per se Sixth Amendment violation due to
trial
counsel’s
implication
in
the
crime
for
which
his
client
withstood trial).5
Having failed to show that Lee did not undertake a plausible
alternative defense because of his own loyalties or interests, that
is, the existence of an actual conflict of interest, Deering must meet
the heavy burden of demonstrating that his attorney’s performance was
deficient, and that said deficient performance prejudiced his defense.
See Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Deering fails to meet
this standard and the record so reflects.
C. Ineffective Assistance (Back to Strickland)
Petitioner claims that his decision to plead guilty was not made
voluntarily,
but
rather
was
the
product
of
Lee’s
counsel
and
insistence. According to Deering, Lee stated he was confident that at
the sentencing hearing, the undersigned would “go along with the plea
bargain” and impose a sentence of probation.6 See Docket No. 1-1 at
page 4. More than a lack of corroboration, this bold allegation is
contradicted by the record.
First
government
off,
Deering
pursuant
to
entered
which
he
into
pled
a
plea
guilty
agreement
to
the
with
the
One-Count
Information in exchange for a particular sentencing recommendation. As
part of the terms and conditions set forth therein, the petitioner
agreed to the following:
5
As discussed below, Deering’s plea hearing declarations confirm
committed the offenses with which he was charged knowingly and willfully.
that
he
6
The court has had a very difficult time ascertaining whether these allegations
are related to, or independent from the already-discarded conflict of interest theory.
Civil No. 16-1655 (PG)
Page 9
The defendant is aware that the defendant’s sentence is
within the sound discretion of the sentencing judge, but
the same may be imposed following the United States
Sentencing Guidelines, Policy Statements, Application, and
Background Notes as advisory to the imposition of the
sentence. The defendant is aware that the Court has
jurisdiction and authority to impose any sentence within
the statutory maximum set for the offense to which the
defendant pleads guilty. If the Court should impose a
sentence up to the maximum established by statute, the
defendant cannot, for that reason alone, withdraw a guilty
plea, and will remain bound to fulfill all of the
obligations under this plea agreement.
Crim. No. 13-76 (PG), Docket No. 4 at pp. 3-4.
By signing the agreement, Deering also acknowledged that he was
satisfied with attorney Lee’s “effective legal assistance.” Id. That
assistance
included,
understanding
against
of
him;
Guidelines;
his
(2)
(3)
inter
rights
the
and
alia,
consulting
regarding
applicable
the
plea
(1)
and
the
provisions
agreement,
reaching
a
Information
of
every
the
part
full
filed
Sentencing
of
which
he
reviewed with counsel. See id. at page 8. At the plea hearing, the
Magistrate Judge further inquired into all aspects covered by the plea
agreement, including the petitioner’s satisfaction with counsel.
1. Rule 11 & Deering’s Guilty Plea
“In order to be constitutionally valid, a guilty plea must be
voluntary and intelligent.” United States v. Delgado-Hernandez, 420
F.3d 16, 19 (1st Cir.2005)(citing Bousley v. United States, 523 U.S.
614, 618, 118 S.Ct. 1604 (1998)). Before accepting a plea of guilty,
the defendant must be placed under oath, and the court must address
him or her personally in open court. See United States v. Pimentel,
539 F.3d 26, 28 (1st Cir.2008)(quoting Fed.R.Crim.P. 11(b)(1)). The
court
“then
informs
the
defendant
of
his
rights
and
makes
a
determination that the defendant understands his rights.” Id. at 2829.
Also,
satisfies
absence
the
the
of
court
must
following
coercion,
address
so-called
(2)
and
ascertain
core
concerns
understanding
of
the
whether
of
Rule
charges,
the
plea
11:
“(1)
and
(3)
knowledge of the consequences of the plea.” Id. at p. 29 (quoting
United States v. Rodríguez-León, 402 F.3d 17, 24 (1st Cir.2005)). The
Civil No. 16-1655 (PG)
Page 10
First Circuit has held that only violations concerning these core
matters requires that the plea be set aside.7
Here, the petitioner was placed under oath, addressed personally
and in open court, and advised of his constitutional rights. After
finding the petitioner competent for purposes of the plea hearing, the
court instructed Deering as to the nature of the charges, and the fact
that he would be facing a maximum term of imprisonment of five years,
a fine not greater than $250,000, and a maximum term of supervised
release of three years. Indeed, the transcript of the plea hearing
shows that the court went to great lengths to ensure that Deering
understood the charges against him and the consequences of accepting
criminal responsibility:
The court:
Deering:
The court:
Deering:
The court:
Deering:
The court:
Deering:
The court:
Deering:
Do you understand that if you plead guilty
and your plea[] [is] accepted, you will be
waiving
any
possible
challenge
to
the
government’s evidence?
Yes.
Do you understand that once adjudged guilty
sentence or punishment will be left to the
discretion of the Court?
Yes.
Do you understand that you will not be
allowed to withdraw your plea solely because
you disagree with the sentence that the Court
may eventually impose?
Yes.
Do you understand that even if the Court
imposes the maximum statutory penalty, you
will not be able to withdraw your guilty plea
for that reason alone?
Yes.
Do you understand that in addition to a term
of imprisonment and a fine, the Court may
also impose a term of supervised release as
part of the sentence of the case?
Yes.
Crim. Case No. 13-76 (PG), Docket No. 65 at pp. 21-22.
7
It is important to note that in his § 2255 motion, the petitioner does not
request that his plea of guilty be set aside. Indeed, he does not even point to any
irregularity that might have affected the plea-taking proceeding. His only claim is
that “the plea[] and waivers…were not intelligent, knowing and voluntary due to
ineffective assistance of counsel.” Docket No. 1 at page 1. Ordinarily, “issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.” See U.S. v. Zannino, 825 F.2d 1, 17 (1st Cir.1990).
Withal, out of an abundance of caution, the court conducted an independent review of
the record to ascertain whether any of the core concerns of Rule 11 was violated
during the plea hearing.
Civil No. 16-1655 (PG)
Page 11
The court thus finds that the “knowing” requisite of Deering’s
plea is
met. See United States
v. Jimenez, 498 F.3d
82, 86
(1st
Cir.2007)(holding that the defendant’s acceptance, during a change-ofplea hearing, that he understands a clear explanation of his potential
sentencing exposure is strong evidence of the knowing nature of his
guilty plea). The court also asked the petitioner on more than four
occasions
if
anyone
had
threatened
or
coerced
him
into
pleading
guilty, and Deering replied “no.” See id. at pp. 21-22, 35 and 38.
Upon
further
questioning,
Deering
assured
the
court
that
he
had
discussed the plea agreement with his attorney, he agreed with its
terms, and he was satisfied with his legal representation. See id. at
pp. 10-11. In the matter at hand, the court finds Deering’s statements
at
the
plea
[ineffective
hearing
“sufficiently
assistance]
claims.”
conclusive
See
United
to
contradict
States
v.
his
Santiago
Miranda, 654 F.3d 130, 138 (1st Cir.2011)(quoting United States v.
Pulido,
556
F.3d
52,
60
(1st
Cir.2009))(internal
quotation
marks
omitted).
The First Circuit has repeatedly stated that the constitutional
validity of a guilty plea also requires the plea-taking court to find
that a factual basis for the plea exists. See Fed.R.Crim.P. 11(b)(3);
Jimenez,
498
F.3d
82,
86
(1st
Cir.2007)(explaining
that
the
requirement of Rule 11(b)(3) “serves to ensure that the defendant’s
conduct
Here,
actually
the
record
corresponds
to
conclusively
the
charges
establishes
lodged
that
the
against
factual
him”).
basis
requirement was met. After providing a factual summary of the charges
against him, the court engaged Deering in the following questions:
The court:
Deering:
The court:
Deering:
The court:
Deering:
I’m asking...are these the charges to which
you’re pleading guilty to?
Yes.
Do you admit that you committed these
offenses knowingly? In other words, not by
accident or by mistake, but rather fully
aware of what you were doing?
Yes.
And do you admit that you committed these
offenses willfully; that is voluntarily and
with the intent to further the conspiracy’s
objects?
Yes.
Crim. No. 13-76(PG), Docket No. 65 at pp. 28-29.
Civil No. 16-1655 (PG)
Page 12
Furthermore, at the Magistrate Judge’s request, the United States
provided a summary of the evidence with which it would have proven the
petitioner’s guilt beyond a reasonable doubt had the case proceeded to
trial. See id. at pp. 44-46. Subsequently, the following exchange took
place:
The court:
Mr. Daniel Deering, do you admit as true the
summary of the evidence that has just been
given by the prosecutor:
Yes.
How do you wish to plea, Mr. Deering, to
Count 1 of the information, guilty or not
guilty?
Guilty.
Deering:
The court:
Deering:
Id. at 46-47.
It
is
well-settled
that
“a
defendant’s
‘declarations
in
open
court carry a strong presumption of verity.’” Santiago Miranda, 654
F.3d at 138 (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct.
1621 (1977)). Furthermore, courts are entitled to give weight to the
defendant’s statements at his plea hearing colloquy “absent a good
reason for disregarding them.” United States v. Torres-Rosario, 447
F.3d
61,
67
assistance
(1st
Cir.2006).
and,
specificity
and
for
that
independent
Deering’s’
matter,
allegations
of
coercion
corroboration.
By
of
are
ineffective
lacking
contrast,
a
in
close
examination of the record reveals not only that a plea hearing was
properly conducted, but that Deering entered a guilty plea out of his
own
volition,
with
a
full
understanding
of
the
advantages,
disadvantages and consequences of doing so.
2. Sentencing Hearing
Deering
also
alleges
ineffective
assistance
based
on
Lee’s
purported unpreparedness at the sentencing hearing. See Docket No. 1.
This
claim
also
fails.
There
is
simply
no
evidence
to
support
Deering’s allegation that Lee’s performance fell below an objective
standard of reasonableness. The court encourages petitioner to review
the transcript of sentencing proceedings to confirm, as the court has,
that Lee’s performance was not deficient. See Crim. No. 13-76 (PG),
Docket No. 70 at pp. 3-4.
At the hearing, attorney Lee provided competent representation
by, inter alia, raising objections to the Presentencing Report and
presenting
all
relevant
arguments
in
support
of
the
sentencing
Civil No. 16-1655 (PG)
Page 13
recommendations proposed by the defense. On several occasions, the
court addressed Deering personally and even asked him whether there
was anything he wanted to say, to which Deering answered: “Your Honor,
just that I’m devastated and I’m sorry.” Id. at page 6.
Deering now complains that Lee failed to raise the appropriate
arguments
during
sentencing
otherwise.
First,
considered
all
in
proceedings.8
determining
applicable
But
Deering’s
guideline
the
record
sentence,
adjustments,
all
shows
the
court
sentencing
factors set forth in 18 U.S.C. § 3553(a), the elements of the offense,
and the plea agreement. See id. at pp. 10-13. Taking into account that
Deering substantially cooperated in the prosecution of related cases,
the
court
reduced
Deering’s
total
offense
level
to
level
15,
and
sentenced him to 24 months of imprisonment and a term of supervised
release of three years. The plea agreement, on the other hand, readily
shows that the sentence of 24 months, a term within the guideline
range,
was
precisely
a
recommendation
that
would
be
made
by
the
prosecution. See Crim. No. 13-76 (PG), Docket No. 4 at page 3; Docket
No. 39 at page 3.
On these facts, the petitioner cannot seriously argue, nor has he
succeeded
at
showing,
that
counsel’s
performance
resulted
in
a
violation of his Sixth Amendment right to competent representation.
Indeed, even if counsel had performed deficiently as required under
the first part of the Strickland standard, petitioner has suffered no
ensuing prejudice. Failure to meet the second, or prejudice, prong of
the Strickland test proves fatal for Deering’s claim. See Caparotta,
676 F.3d 213, 219 (1st Cir.2012). What is more, even if attorney Lee
was ineffective, Deering has failed to explain how, or why, he did not
receive competent assistance from his other retained counsel, attorney
Oppenheimer.
See
United
States
v.
Dunfee,
821
F.3d
120,
128
(1st
Cir.2016)(“Where…the defendant was represented by multiple attorneys,
an
ineffective
assistance
challenge
is
particularly
difficult
to
mount.”)(citing Lopez-Nieves v. United States, 917 F.2d 645, 647 (1st
Cir.1990)).
8
Petitioner also argues that counsel was ineffective for failing to present the
advice-of-counsel defense as a mitigating factor. See Docket No. 1. The implausibility
of that theory has been discussed ad nauseam. The court’s earlier conclusion still
holds true when applied to the sentencing stage of proceedings. Simply put, given the
flurry of evidence against him, Deering would not have secured a lesser sentence by
advancing the advice-of-counsel defense during sentencing.
Civil No. 16-1655 (PG)
Page 14
As a final note, the court calls attention to the fact that not
once in the three years that elapsed from his pleading guilty until
his
sentencing
–
and
the
many
cooperation-driven
and
case-related
meetings in between – did Deering ever exhibit hesitation, reluctance
or regret regarding his plea, or his legal representation for that
matter. And despite being sentenced pursuant to the terms of the plea
agreement and recommendations of the prosecution, unscathed by the
legitimate (and dare we say, habitual) use of court discretion, this
obviously intelligent petitioner has had a change of heart.9 However,
“[w]hen a criminal defendant has solemnly admitted in open court that
he is in fact guilty of the offense with which he is charged, he may
not thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty
plea.” Lefkowitz v. Newsome, 420 U.S. 283, 288, 95 S.Ct. 886 (1975)
(quoting
Tollett
v.
Henderson,
411
U.S.
258,
267,
93
S.Ct.
1602
(1973)); see Perocier–Morales v. United States, 887 F.Supp.2d 399, 417
(D.P.R.2012).
In light of the foregoing, the court concludes, without serious
question, that petitioner did not receive ineffective assistance of
counsel.
III.
On
September
19,
EVIDENTIARY HEARING
2016,
the
petitioner
filed
a
motion
for
a
pretrial conference under Local Rule 16(c).10 See Docket No. 24. He
further
requests
that
the
court
determine
whether
an
evidentiary
hearing is warranted pursuant to Rule 8(a) of the Rules Governing §
2255 Proceedings. See Rule 8(a), Rules Governing § 2255 proceedings
(directing the district court to review the answer, record of prior
proceedings
and
other
relevant
materials
to
determine
whether
an
evidentiary hearing is warranted). In the alternative, the petitioner
requests that an oral argument be set with respect to his § 2255
petition. Id. at page 2.
Evidentiary hearings in § 2255 cases are the exception, not the
norm, and there is a heavy burden on the petitioner to demonstrate
9
The court is well aware of Deering’s educational background and the fact that
he completed a year of law school.
10
Local Rule 16(c) allows a party to request a pretrial conference provided
that the motion is accompanied by a certificate of reediness. See L.Cv.R. 16(c)
(D.P.R.2009). The petitioner’s motion contains a certificate of readiness that meets
the requirements of Local Rule 16(c).
Civil No. 16-1655 (PG)
Page 15
that an evidentiary hearing is warranted. Moreno–Morales v. United
Sates, 334 F.3d 140 (1st Cir.2003). An evidentiary hearing “is not
necessary
when
a
§
2255
petition
is
inadequate
on
its
face,
or
although facially adequate, is conclusively refuted as to the alleged
facts by the files and records of the case.” United States v. DiCarlo,
575 F.2d 952, 954 (1st Cir.1978). Such is the case of Deering’s motion
to vacate. Having ruled that the petitioner’s ineffective assistance
of
counsel
claim
lacks
specificity,
independent
corroboration
and
support in the record, the court finds that an evidentiary hearing is
not
warranted.
Accordingly,
Deering’s
request
for
an
evidentiary
hearing or oral argument on the matter is DENIED.
IV.
CONCLUSION
For the foregoing reasons, the court concludes, without serious
question,
that
the
petitioner
failed
to
establish
that
counsel’s
performance fell below an objective standard of reasonableness or that
the
alleged
errors
on
counsel’s
part
prejudiced
him.
Deering
has
presented no evidence of any deficiencies producing “‘a fundamental
defect which inherently results in a complete miscarriage of justice’
or ‘an omission inconsistent with the rudimentary demands of fair
procedure.’”
Knight
v.
United
States,
37
F.3d
769,
772
(1st
Cir.1994)(quoting Hill, 368 U.S. at 428, 82 S.Ct. 468)). Consequently,
petitioner’s motion to vacate, set aside, or correct sentence under 28
U.S.C. § 2255 (Docket No. 1) is hereby DENIED, and the above-captioned
case
is
DISMISSED
WITH
PREJUDICE.
Judgment
shall
be
entered
accordingly.
V.
CERTIFICATE OF APPEALABILITY
It is further ordered that no certificate of appealability should
be issued in the event that the petitioner files a notice of appeal
because
there
is
no
substantial
showing
of
the
denial
of
constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
In San Juan, Puerto Rico, November 29, 2016.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE
a
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