Gould v. U.S.

• Decision Date: 29 September 2009
• Docket Number: Civil Action No. 07-11745-RCL.
• Citation: 657 F.Supp.2d 321
• Parties: Richard GOULD, Petitioner v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Massachusetts

Page 321

657 F.Supp.2d 321

Richard GOULD, Petitioner v. UNITED STATES of America, Respondent.

Civil Action No. 07-11745-RCL.

United States District Court, D. Massachusetts.

September 29, 2009.

Kirk Y. Griffin, Boston, MA, for Petitioner.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

Richard Gould ("Gould") moves under 28 U.S.C. § 2255 to vacate his sentence and permit a conditional change of plea under Fed.R.Crim.P. 11(e).¹ Gould is currently serving a ten year sentence, followed by five years of supervised release, for two convictions relating to the possession and distribution of OxyContin pills. Gould seeks restoration of his appellate rights under Fed.R.Crim.P. 11(a)(2) in order to appeal Judge Lindsay's denial of his motion to suppress post-arrest statements attributed to him. He alleges that his attorney, Scott P. Lopez ("Attorney Lopez"), provided ineffective assistance of counsel by failing to inform him that Fed. R.Crim.P. 11(a)(2) allows a defendant to enter a conditional guilty plea preserving his right to appeal "an adverse determination of a specified pretrial motion." By later entering a guilty plea under Fed. R.Crim.P. 11(a)(1), Gould waived his right to appeal the denial of his motion to suppress.² See, e.g., Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

In order to state a claim for relief, Gould must overcome a strong presumption that Attorney Lopez provided adequate representation. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reviewing court must attempt "to eliminate the distorting effects of hindsight, to reconstruct circumstances of the alleged conduct, and to evaluate counsel's conduct from counsel's perspective." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The government argues that even if this court assumes Gould's allegations to be true, he has failed to meet his heavy burden in satisfying either of the Strickland prongs to prove ineffective assistance of counsel: deficient performance or prejudice. 466 U.S. at 691-92, 104 S.Ct. 2052. On the deficient performance prong, the government argues that there is no case law to suggest that the omission alleged falls below an objective standard of reasonableness.³ On the prejudice prong, the government argues that the omission did not have an adverse impact on Gould.

II. FACTS & PROCEDURAL HISTORY

Gould, petitioner in this case, was intercepted by the Drug Enforcement Agency in an investigation targeting Christopher Alviti ("Alviti") in June 2004. (Resp't Mem. at 1-2.) Gould was named in two counts of a seven-count indictment, which also named Alviti, relating to his possession and distribution of OxyContin. (Resp't Mem. at 1-5.) Gould retained counsel Attorney Lopez for trial. (Pet'r Mot. ¶ 15.) See United States v. Gould, No. 04-10248-RCL (D.Mass. Sept. 21, 2006). Attorney Lopez filed a pretrial motion to suppress post-arrest statements made by Gould to law enforcement officers. (Def.'s Mot. to Suppress.) Judge Lindsay denied his motion to suppress. (Pretrial Order, Dec. 20, 2005.)⁴ Following the denial of Gould's motion to suppress, he consulted with Attorney Lopez. (Gould Aff. ¶ 2.) Gould says, "As a result of these discussions [with Attorney Lopez] I elected to change my plea to guilty." Id. Gould therefore determined to tender a straight up plea, i.e. a plea not the result of a bargain with the government. The record shows a vast disparity in the amount of OxyContin pills for which Gould could have been held accountable at trial— a disparity ranging from 502 to 60,000 pills. (Sentencing Tr. 6, 8-9, 11). As was his wont, see Osorio-Norena v. United States, 658 F.Supp.2d 266, 268 (D.Mass. 2009), compare United States v. Alba, ___ F.Supp.2d ___, ___ (D.Mass.2009), (discussing Judge Lindsay's common practice of holding evidentiary hearings to determine disputed facts at sentencing) Judge Lindsay set up an evidentiary hearing to determine the drug weight to be attributed to Gould for the purpose of applying the sentencing guidelines. (Gould Aff. ¶ 4; Sentencing Tr. at 4). Yet before Gould's sentencing hearing at which Alviti planned to testify, he indicated to the government that the correct number of pills may be closer to 20,000. Id. The government alleged in its sentencing memorandum that Alviti's initial information to federal agents indicated that Gould had sold him a total of 60,000 pills. Sentencing Mem. of the United States at 5. Ultimately, the government did not call Alviti as a witness after he submitted a positive urinalysis test. (Sentencing Tr. at 10.) Judge Lindsay sentenced Gould to one hundred twenty months and five years supervised release for conspiracy to possess with intent to distribute and to distribute oxycodone in violation of 21 U.S.C. § 846 ("Count 1") and possession with intent to distribute oxycodone in violation of 21 U.S.C. § 841(a)(1) ("Count 7"). (Pet'r Motion ¶ 3, 4; Resp't Mem. at 1.) He is currently serving his sentence at the Federal Prison Center Schyulkill. (Pet'r Mot. at 1.)

The presentence report ("PSR") indicated that Gould was responsible for 520.16 grams of Oxycodone. (PSR ¶ 55). This amount was based on an assumption that Gould sold 7,000 pills. (Sentencing Tr. at 63.) Based on the PSR and assuming a three-level reduction for sparing the government the burden and expense of a trial, Gould's Total Offense Level ("TOL") of 31, advised a sentence of 108-135 months. (Resp't Mem. at 5-6.) Concluding that Gould had testified falsely during the motion to suppress hearing, Judge Lindsay declined the three-level reduction and added two levels for obstruction of justice (Sentencing Tr. At 46-47) but adopted the PSR and attributed a drug weight of 520.16 grams of oxycodone to Gould, yielding a TOL of 36 (Sentencing Tr. at 7.), thus advising sentence of 188-235 months. (Resp't Mem. at 6.) The government recommended a sentence of 200 months imprisonment. Id. Judge Lindsay sentenced Gould to ten years (120 months) imprisonment and five years supervised release. Gould was advised that he could appeal his guilty plea and his sentence. (Sentencing Tr. at 68; Gould Aff. ¶ 5, 6.) Gould acknowledges that he knowingly waived these appellate rights after consulting with Attorney Lopez. (Gould Aff. ¶ 8-9.)

Gould alleges that in subsequent months, he learned that Fed.R.Crim.P 11(a)(2) provides for "a procedure by which [he] could have appealed the court's adverse ruling on [his] motion to suppress." (Gould Aff. ¶ 10.) Gould alleges that Attorney Lopez never informed him of this rule. (Gould Aff. ¶ 11.) Gould asks this court to vacate his sentence and permit a conditional plea of guilty under Fed. R.Crim.P. 11(a)(2), which would reinstate his right to appeal the denial of his motion to suppress. (Pet'r Mot. at 14.)

III. ANALYSIS

A. The Habeas Standard

A petitioner bears the burden of demonstrating, by a preponderance of the evidence, not only that he is entitled to relief under 28 U.S.C. § 2255, but also that he is entitled to an evidentiary hearing. Cody v. United States, 249 F.3d 47, 54 (1st Cir.2001); United States v. McGill, 11 F.3d 223, 225 (1st Cir.1993); Barrett v. United States, 965 F.2d 1184, 1186 (1st Cir.1992). An evidentiary hearing is required if the records and files in the case, or an expanded record, cannot conclusively resolve substantial issues of material fact, "when the allegations made, if true, would require relief." United States v. Fournier, 594 F.2d 276, 279 (1st Cir.1979). Accordingly, a hearing is required if the issue as to whether Attorney Lopez provided ineffective assistance of counsel cannot be resolved by the facts of record.

As a threshold matter, a defendant has no absolute right to withdraw a plea. United States v. Muriel, 111 F.3d 975, 978 (1st Cir.1997). The First Circuit will review a trial court's refusal to grant a withdrawal of plea only for abuse of discretion. United States v. Raineri, 42 F.3d 36, 41 (1st Cir.1994). In the First Circuit, the standard of review for a habeas claim is whether the facts alleged by the petitioner, if taken as true unless contradicted by the record, state a claim upon which relief can be granted. Porcaro v. United States, 784 F.2d 38, 40 (1st Cir.1986) (citing Mack v. United States, 635 F.2d 20, 26-27 (1st Cir.1980)). For the purposes of this analysis, the allegation by Gould in his 28 U.S.C. § 2255 petition that Attorney Lopez did not inform him of Fed.R.Crim.P. 11(a)(2) will be taken as true. If Gould has alleged facts sufficient to sustain his burden of proof, this Court may either request that the parties provide additional materials to aid determining whether a hearing is required, 28 U.S.C. § 2255 Rule 7, or this Court may hold an evidentiary hearing to determine whether Attorney Lopez failed to inform Mr. Gould of Fed.R.Crim.P. 11(a)(2). 28 U.S.C. § 2255 Rule 8. "If it plainly appears from the motion, attached exhibits, and the record of prior proceedings" that Gould is not entitled to relief, his petition may be dismissed. 28 U.S.C. § 2255 Rule 4(b).

B. Gould Satisfies The Procedural Requirements Of 28 U.S.C. § 2255.

Under Fed.R.Crim.P. 32(d), a plea may only be set aside by direct appeal or by petition under 28 U.S.C. § 2255. Gould satisfies each of the requirements for filing a cognizable section 2255 petition. Judgment became final in Gould's case on September 21, 2006. Gould (No. 04-10248). Gould filed this petition under 28 U.S.C. § 2255 on September 19, 2007, which satisfies the one-year statute of limitations required by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). 28 U.S.C. § 2255(f)(1) (2004). See 28 U.S.C. § 2255 Rule 3(c) (2004).

For this Court to have subject matter jurisdiction, the petitioner must be in custody under the judgment of either a federal or state court. 28 U.S.C. § 2255 Rule 1. Gould meets this requirement because he is currently in custody at FPC Schuylkill as the result of the judgment...