Lopez-Nieves v. U.S.

• Decision Date: 13 September 1990
• Docket Number: P,No. 89-1905,LOPEZ-NIEVE,89-1905
• Citation: 917 F.2d 645
• Parties: Jose Valentinetitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 645

917 F.2d 645

Jose Valentin LOPEZ-NIEVES, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 89-1905.

United States Court of Appeals First Circuit.

Heard Sept. 13, 1990.

Decided Oct. 29, 1990.

Lydia Lizarribar-Masini, Old San Juan, P.R., for petitioner, appellant.

Juan A. Pedrosa, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for respondent, appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.

Jose Valentin Lopez-Nieves appeals from the denial of his pro se 28 U.S.C. Sec. 2255 motion to vacate and set aside his guilty plea and sentence for a one-count indictment under 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Appellant claims that he received ineffective assistance of counsel and that his guilty plea was invalid.

Lopez-Nieves and Juan Robles-Rodriguez were indicted on February 4, 1987, for aiding and abetting each other knowingly and intentionally to possess with intention to distribute 50.9 grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Criminal No. 87-029 (JAF). Robles-Rodriguez pled guilty, received an eight-year prison term and is not involved in this appeal.

Lopez-Nieves pled guilty to the charge on March 31, 1987. On May 13, 1987, the United States District Court for the District of Puerto Rico sentenced him to a fifteen-year prison sentence concurrent to a sentence imposed earlier that day for another federal narcotics violation. (Criminal No. 86-419 (PG). In addition, appellant was fined $100,000, given a special parole term of five years and ordered to pay a special monetary assessment of $50.

On December 30, 1988, Lopez-Nieves filed a pro se motion under 28 U.S.C. Sec. 2255 alleging that he had been denied effective assistance of counsel and that his guilty plea was invalid. Pursuant to Rule 4(b) of the rules governing 28 U.S.C. Sec. 2255 proceedings in United States district courts, the district court denied the motion without a hearing on the ground that Lopez-Nieves' claims were patently incredible or conclusively refuted by the record. Opinion and Order, August 1, 1989. On September 12, 1989, appellant filed his notice of appeal.

While the case was on appeal, counsel for Lopez-Nieves filed sworn statements, letters and other documents which the district court determined merited further examination. This resulted in a hearing after which the district court again denied Lopez-Nieves'

motion to set aside his guilty plea and to vacate his sentence. An appeal was taken from the denial of the motion. The district court referred "serious ethical violations" allegedly committed by Antonio Cordova-Gonzalez, the attorney who had represented appellant at the change of plea and sentencing, to the judges of the district court of Puerto Rico for collective consideration. Opinion and Order, July 30, 1990, at 1. A complaint seeking Cordova-Gonzalez's disbarment is now pending before the district court. In re Antonio Cordova-Gonzalez, --- D.P.R. ----, 90 J.T.S. 28 (1990).

TIMELINESS OF THE NOTICE OF APPEAL

Although at oral argument the government seemed to concede that appellant's original notice of appeal was timely, we address the issue. Under Rule 4(a)(1) of the Federal Rules of Appellate Procedure,

In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals ... if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days after such entry.

Rule 4(a)(1)'s 60-day time limit governs appeals from orders entered on Sec. 2255 motions. Rule 11, Rules Governing Section 2255 Proceedings for the United States District Courts. See also United States v. Hayman, 342 U.S. 205, 209 n. 4, 72 S.Ct. 263, 267 n. 4, 96 L.Ed. 232 (1952) ("[a]ppeals from orders denying motions under Section 2255 are governed by the civil rules applicable to appeals from final judgments in habeas corpus actions"); United States v. Zuleta-Molina, 840 F.2d 157, 158 (1st Cir.1988); Mercado v. United States, 183 F.2d 486, 487 (1st Cir.1950). Appellant filed his appeal within the 60 days allowed under Fed.R.App.P. 4(a)(1); therefore, this appeal is not time-barred.

INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant claims that he failed to receive effective assistance of counsel in violation of the sixth amendment of the United States Constitution.

Representation By Two Attorneys

Lopez-Nieves hired two lawyers, Cordova-Gonzalez and Jose Ortiz-Miller, to represent him following his February 4, 1987, indictment. When appellant was later charged in a multi-defendant drug indictment known as Operation Ali-Baba (Criminal No. 87-251 (PG)), he again retained Cordova-Gonzalez, pled guilty and received an eight-year sentence, consecutive to the prior one. Lopez-Nieves had also retained Cordova-Gonzalez as counsel in prior criminal proceedings and civil forfeiture cases. Lopez-Nieves claims that Cordova-Gonzalez's services were unreasonably poor and were tainted by various conflicts of interest, but he makes no similar claims regarding the services of Ortiz-Miller.

Cordova-Gonzalez, in an "informative" motion filed August 30, 1990, justifying legal fees in excess of $100,000 for representation in this case alone, claimed that Ortiz-Miller had resigned as counsel during the case. However, nothing in the record or in Lopez-Nieves' Sec. 2255 motion or appeal indicates that Ortiz-Miller withdrew. At Lopez-Nieves' change of plea hearing on March 31, 1987, Cordova-Gonzalez told the court that Ortiz-Miller was co-counsel. Appellant told the court that he had had ample time to discuss his case with both of his attorneys and that he was satisfied with their work. At oral argument before this court, appellant's lawyer (the third one) stated that Lopez-Nieves had been represented by two attorneys at the change of plea hearing and the sentencing hearing. We uphold the district court's finding that appellant was represented by two attorneys, at least one of whom rendered competent legal services. Opinion and Order, July 30, 1990, at 13.

Although the presence of a second attorney during the proceedings seriously undermines appellant's claim of ineffective assistance of counsel, we have nonetheless examined Cordova-Gonzalez's performance and find that it fell within the wide range

of "reasonable" competence allowed by law.

The Legal Standard

A conviction may be set aside because of ineffective assistance of counsel if (a) considering all the circumstances, counsel's performance fell below an objective standard of reasonableness, and (b) there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also Panzardi-Alvarez v. United States, 879 F.2d 975, 982-83 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990); Perron v. Perrin, 742 F.2d 669, 672-73 (1st Cir.1984). The Strickland test imposes "highly deferential" judicial scrutiny of counsel's performance and "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065.

The Strickland test applies to guilty plea challenges based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). To meet the first part of the Strickland test, a counseled guilty plea must be based on advice which "[is] within the range of competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. at 56, 106 S.Ct. at 369, quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). A guilty plea is valid only if based on "a voluntary and intelligent choice among the alternative courses of action open to the defendant," Hill v. Lockhart, 474 U.S. at 56, 106 S.Ct. at 369, quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). The Strickland test's requirement of prejudice is met if "there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. at 370. Based on the uncontradicted facts, we are unable to find that Lopez-Nieves received ineffective assistance by his counsel.

Conflict of Interest

On May 6, 1987, Cordova-Gonzalez borrowed $100,000 from Lopez-Nieves. A bearer's note secured by a mortgage deed was executed on May 6 before a notary public. Appendix of Appellant, Exhibit 1. The note does not specify an interest rate. The note is in Spanish, and no translation of it has been submitted. We think, however, that our description of it is correct.

The district court found that the loan did not adversely affect the quality of legal services rendered by Cordova-Gonzalez. It did find, however, that the loan transaction was not fair and reasonable to Lopez-Nieves. The best way to understand the "note" issue is to quote from the findings of the district court:

The documentary evidence [submitted after the motion to set aside the guilty plea was denied] is mainly correspondence by Cordova-Gonzalez to both defendant and his wife. The bulk of it is dated in 1988, several months after our May 13, 1987 sentence. The testimony received on said documentary evidence shows that a good part of the dispute on ineffective assistance of counsel was fueled not so much by work done by Cordova-Gonzalez as a lawyer, but on the differences between the lawyer and his client on the loan. The parties still disagree on whether the loan is outstanding, on what were the terms of payment, and on whether Cordova-Gonzalez could pay back the loan with professional services. It is not...