Cuevas v. United States
| Decision Date | 22 May 2012 |
| Docket Number | Case No. 8:11-CV-240-T-27AEP,Crim Case No. 8:09-CR-257-T-27AEP |
| Parties | FRANKIE CUEVAS v. UNITED STATES OF AMERICA |
| Court | U.S. District Court — Middle District of Florida |
BEFORE THE COURT is Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, Memorandum of Law and two supplemental memorandums (CV Dkts. 1,2), the Government's Response in Opposition (CV Dkt. 8), and Petitioner's Reply (CV Dkt. 10). Upon consideration, Grounds One and Three in Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (CV Dkt. 1) are DENIED. An evidentiary hearing is required on Ground Two.
Petitioner was charged with conspiracy to possess with intent to distribute and distribution of cocaine (CR Dkt. 1). Daniel Hernandez, an experienced criminal defense attorney, was appointed to represent Petitioner (CR Dkt. 26). Subsequently, the Government filed its Information and Notice of Prior Convictions, providing notice that Petitioner's prior felony drug convictions subjected him to enhanced penalties (CR Dkt. 29).
Pursuant to a Plea Agreement, Petitioner pleaded guilty (CR Dkt. 47). The Magistrate Judgeconducted a thorough Rule 11 change of plea colloquy and recommended that his guilty plea be accepted (CR Dkts. 53, 70). Petitioner's guilty plea was accepted, he was adjudicated guilty, and sentenced as a career offender to 180 months imprisonment (a below guideline sentence), followed by 72 months of supervised release (CR Dkts. 54, 62). Petitioner did not appeal.
In his § 2255 motion, Petitioner raises three claims of ineffective assistance of counsel:
To demonstrate ineffective assistance of counsel, Petitioner must show that counsel's performance was deficient, that is, that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Additionally, Petitioner must show that counsel's deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668 (1984); Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998). In assessing a lawyer's performance, there is a strong presumption that counsel's performance was reasonable and that counsel exercised "reasonable professional judgment" in making all significant decisions. Chandler v. United States,218 F.3d 1305, 1314 (11th Cir. 2000)(en banc), cert. denied,531 U.S. 1204 (2001). The question is whether Petitioner's attorney's performance was within "the wide range of professionally competent assistance," an objective determination. Van Poyck v. Fla. Dept. of Corrections, 290 F.3d 1318, 1322 (11th Cir. 2002)(quoting Strickland, 466 U.S. at 690). Where a movant is unable to establish either prong of the Strickland analysis, his claim must be dismissed.See Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995).
Counsel owes a lesser duty to a client who pleads guilty than to one who goes to trial. Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984). When a defendant pleads guilty, counsel need only provide his client with an understanding of the law in relation to the facts so that the defendant can make an informed decision between pleading guilty and going to trial. Id. Counsel need only make an independent examination of the facts, circumstances, pleadings and applicable law, and then offer counsel's informed opinion to his client as to the best course of action. Id.
In the context of a guilty plea, Petitioner must show that counsel's alleged deficient performance "affected the outcome of the process," that is, that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); Lalani v. United States, 315 Fed. Appx. 858, 860-61 (11th Cir. 2009).
In Ground One, Petitioner claims that his attorney's ineffectiveness rendered his guilty plea involuntary, unknowing, and unintelligent. Specifically, Petitioner contends that his attorney was ineffective in failing to advise him that he was a career offender and would receive a sentence of more than 60 months and failing to "go over the presentence report to the extent that he informed nor told the petitioner that he would be sentenced as a Career Offender, for less than 50 grams of cocaine" (CV Dkt. 2, p. iii-iiii).1 He claims he "would have never pled had he known that he wasgoing to be enhanced as a Career Offender Status," and "would have instead proceeded directly to trial." (Id., p. iiii). Finally, he claims that his attorney "indirectly promised the petitioner that if he pled guilty, and did not pursue a trial, he would receive a possible sentence of no more than 60months in a federal prison." (Id., p. 2). The record demonstrates that this claim of ineffective assistance of counsel is without merit.
Accepting as true that counsel did not explain to Petitioner that he could be sentenced as a career offender, that failure did not undermine the knowing and voluntary nature of Petitioner's guilty plea. Petitioner's plea colloquy demonstrates that (1) he acknowledged that his prior convictions would enhance the maximum possible sentence he faced, (2) he understood the maximum possible sentence and that he could get the maximum sentence, and (3) his sentence could be greater than any estimates of his sentencing guidelines range. And his ultimate sentence was less than the maximum possible sentence.
A defense attorney's failure to explain the possibility of the client being sentenced as a career offender does not undermine the knowing and voluntary nature of the client's guilty plea where the client, during the change of plea hearing, acknowledges the maximum possible sentence and that the sentence could be greater than anticipated or estimated. United States v. Himick, 139 Fed. Appx. 227, 229 (11th Cir. 2005)(no abuse of discretion in denying motion to withdraw guilty plea based on claim that attorney failed to advise defendant of possibility of being sentenced as career offender), citing United States v. Bradley, 905 F.2d 359, 360 (11th Cir. 1990)); United States v. Herrington, 350 Fed. Appx. 363, 369 (11th Cir. 2009)(that defendant unaware of possible of career offender sentence did not render guilty plea unknowing and involuntary where defendant was advised of possible maximum sentence and that he could not rely on sentencing estimates of counsel); UnitedStates v. Williams, 116 Fed. Appx. 539 (5th Cir. 2004)(defendant not entitled to withdraw guilty plea because unaware he could be sentenced as career offender, where he was informed of the maximum sentence he faced); United States v. Howard, 341 F.3d 620, 622 (7th Cir. 2003)(defendant not entitled to withdraw plea even though counsel failed to inform him that he would be sentenced as a career offender, where he was informed of maximum penalty); United States v. Ludwig, 972 F.2d 948,950-51 (8th Cir. 1992)(same); Thomas v. United States, 27 F.3d 321,325 (8th Cir. 1994), cert, denied, 495 U.S. 909 (1990)(counsel's failure to advise defendant of possible career offender enhancement not ineffective assistance).2
Under the current advisory guidelines, an attorney's mistaken estimate of the guidelines or erroneous sentence estimate is not deficient performance. United States v. Himick, supra. Indeed, even under the former mandatory guidelines, an attorney's mistaken prediction of a guideline offense level and sentence was determined not to undermine the voluntary and knowing nature of a guilty plea. United States v. Bradley, supra3 Accordingly, counsel's failure to explain or accurately predicthow the guidelines would apply to Petitioner did not constitute ineffective assistance, where, as here, the plea colloquy otherwise meets all of the core concerns of a knowing and voluntary guilty plea.
Petitioner's plea colloquy undeniably satisfied the three core concerns of a knowing and voluntary guilty plea. United States v. Siegel, 102 F.3d 477,481 (11th Cir. 1996)(plea is free from coercion, defendant understands nature of charge, and defendant knows and understands consequences of pleading guilty). By his own sworn acknowledgments to the Magistrate Judge, Petitioner's guilty plea was free from coercion, he understood the nature of the charges, and he understood the consequences of his plea, including the potential maximum sentence.
And it is not as if Petitioner did not know what he was facing before his sentencing hearing began. During his allocution, Petitioner acknowledged that he faced a 15 year sentence (CR Dkt. 71, p. 12-13)( ). Significantly, Petitioner voiced no objection at the time of sentencing about his career offender status and took no issue with his prior convictions.4 Indeed, during the sentencing hearing, his attorney confirmed the accuracy of those prior convictions (CR Dkt. 71, p. 4). According to Petitioner, it was not until after he was sentenced that he voiced any concerns to his attorney.5
This is simply a case where Petitioner, a four time convicted drug dealer whose prior record earned him a significant enhancement, is disappointed with his sentence and blames his attorney:"Counsel's prejudice caused the petitioner 15 years in a federal prison."(CV Dkt. 2, p. 6).6
Since the core requirements of a knowing and voluntary...
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