U.S. v. Gordon, Criminal No. 92-386.

Decision Date01 October 1997
Docket NumberCivil Action No. 97-2757.,Criminal No. 92-386.
Citation979 F.Supp. 337
PartiesUNITED STATES of America v. Jeffrey Paul GORDON. Jeffrey Paul GORDON v. UNITED STATES of America.
CourtU.S. District Court — Eastern District of Pennsylvania

Ewald Zittlau, Asst. U.S. Atty., Philadelphia, PA, for U.S.

Jeffrey M. Lindy, Philadelphia, PA, for Jeffrey Paul Gordon.

MEMORANDUM

DALZELL, District Judge.

After five years of reflection, Jeffrey Paul Gordon has reconsidered the wisdom of his pressing his claims of innocence upon the jury that convicted him. Specifically, Gordon now finds constitutional fault in his trial counsel's failure to urge upon him a non-trial disposition of his case.

Because Gordon's contention is, as far as we can tell, unprecedented in this or any other Circuit, we will address it at some length.

Background

On July 1, 1992, a grand jury returned an indictment against Gordon, a pharmacist. Gordon was charged with two counts of possession with intent to distribute and dispense controlled substances without a proper prescription, in violation of 21 U.S.C. § 841(a)(1). The indictment charged Gordon with unlawfully dispensing, "without a legitimate medical purpose and outside of the usual course of professional practice, that is, without a valid and proper prescription, approximately 9,000 Dilaudid (4 mg.) tablets" and "2,000 glutethimide (.5 gm.) tablets."

On the third day of his four-day jury trial that October, Gordon testified in his own defense and at length protested his innocence. Pet. Mem. at p. 7, n. 4. Besides insisting on his actual innocence, Gordon in his testimony depicted himself as the victim of a burglary — including details of physical violence against him — that resulted in the theft of the 9,000 Dilaudid and 2,000 glutethimide tablets. On October 29, 1992, the jury returned a verdict of guilty on both counts of the indictment.

At his sentencing on January 28, 1993, Gordon reasserted his innocence. Pet. Mem. at p. 7, n. 4. We sentenced Gordon to 121 months imprisonment, three years supervised release, a $17,500 fine, and a $100 special assessment.

On September 9, 1993, our Court of Appeals upheld the conviction and affirmed the Judgment of this Court. United States v. Jeffrey Paul Gordon, No. 93-1103, 8 F.3d 813 (3d Cir. Sept.9, 1993). Gordon filed a petition for rehearing en banc on September 22, 1993, which the Court of Appeals denied. United States v. Jeffrey Paul Gordon, No. 93-1103 (3d Cir., Oct.7, 1993).

Pursuant to 28 U.S.C. § 2255, Gordon now moves to vacate, set aside, or correct his sentence. Gordon contends that his trial counsel was ineffective because he did not advise him of his comparative sentence exposure under the Sentencing Guidelines between standing trial and entering a nolo contendere or an Alford plea, and did not explain the alleged "benefit" of entering such a plea.1 For the reasons set forth below, we will deny Gordon's motion.

Evidentiary Hearing

The decision as to whether to hold an evidentiary hearing on a § 2255 motion is within the discretion of the trial court, which must first determine whether the files and records of the case "plainly" show "that the movant is not entitled to relief." See Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts; see also United States v. Nahodil, 36 F.3d 323, 326 (3d Cir.1994); United States v. Day, 969 F.2d 39, 41-42 (3d Cir.1992). As will be seen, because the record is sufficiently plain, and the essential facts cannot be disputed, we find that no evidentiary hearing is warranted.

Legal Discussion
A. Standard of Review

When considering a claim of ineffective assistance of counsel, we are bound by the two-pronged test that the Supreme Court formulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (i) whether the attorney's performance fell "below an objective standard of reasonableness", thus rendering the assistance so deficient that the attorney did not function as "counsel" as the Sixth Amendment guarantees, see id., at 687-88, 104 S.Ct. at 2064-65, and (ii) whether the attorney's ineffectiveness prejudiced the defense such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See id. at 694, 104 S.Ct. at 2068; see also Deputy v. Taylor, 19 F.3d 1485, 1493 (3d Cir.), cert. denied, 512 U.S. 1230, 114 S.Ct. 2730, 129 L.Ed.2d 853 (1994).

Habeas corpus relief is generally available only in "exceptional circumstances" to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure. See Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962).

B. Gordon's Argument

Gordon contends that his prior counsel, F. Emmett Fitzpatrick, Esquire, failed to advise him that he could plead nolo contendere2 or enter an Alford3 plea prior to trial. Pet Mem. at p. 4-5. Furthermore, Gordon asserts that Mr. Fitzpatrick did not advise him that a nolo contendere plea or an Alford plea, when combined with acceptance of responsibility, could possibly have led to a three-level downward adjustment from the Sentencing Guidelines offense level.4 Pet. Mem. at p. 6, 12. Gordon contends that had he been properly advised regarding such pleas, he would have waived his right to trial and entered a nolo contendere or an Alford plea. Pet. Mem. at p. 7.

C. Analysis

Gordon's ineffectiveness of counsel argument does not withstand scrutiny.

At the threshold, we note that it is factually unclear whether Mr. Fitzpatrick advised Gordon about the right to enter a nolo contendere or an Alford plea. Unsurprisingly after the passage of five years, Mr. Fitzpatrick states in his affidavit that he does not recall whether he advised Gordon about these pleas. See Pet. Mot. Exhibit B, ¶'s 3-4. Even assuming that Mr. Fitzpatrick did not advise Gordon of such an option, however, we still find that Gordon's motion must fail.

(1) Does the Constitution Require Defense Counsel to Proffer Unwelcome or Unwanted Advice?

As noted in our canvass of the background of this case, throughout his trial and sentencing Gordon steadfastly protested his innocence. His testimony went beyond the bald assertion of innocence, and described an alternative scenario that depicted Gordon as the victim of a burglary of his inventory of Dilaudid and glutethimide. Thus, from aught that appears on this extensive record, there was no reason for Mr. Fitzpatrick to believe that Gordon would welcome, or even want to hear, advice regarding any non-trial disposition of these charges that would have put Gordon in jail. Notwithstanding this reality that presented itself to Mr. Fitzpatrick, Gordon now says that the failure to canvass such possibilities took Mr. Fitzpatrick's performance below an objective standard of reasonableness under Strickland.

We have looked to other arbiters of constitutional reasonableness to aid us in our inquiry. We found no case which holds that an effective defense lawyer in criminal cases must offer advice on sentence-triggering pleas to a client who insists he is actually innocent of the charges against him.

At a high level of generality, of course, the Supreme Court taught us in Strickland that "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. As Justice O'Connor explained for the Court in Strickland,

Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information.

Id.

In other contexts, courts applying this general principle from Strickland have held that defense counsel's actions premised upon the defendant's "strategic choices" cannot be constitutionally ineffective if' they are consistent with those choices. See, e.g., Neal v. Acevedo, 114 F.3d 803, 805-807 (8th Cir.1997) (trial counsel's failure to take actions inconsistent with defendant's alibi defense held not constitutionally ineffective).

To be sure, a defense lawyer's duty to assist the defendant make "informed strategic choices" requires the lawyer to canvass with the defendant the advantages and disadvantages of a guilty plea if the Government proffers a plea agreement. See, e.g., Jones v. Murray, 947 F.2d 1106, 1109-111 (4th Cir. 1991) (failure of defense counsel to recommend acceptance of a proffered plea agreement in a death penalty case held not constitutionally ineffective); see also III American Bar Association for Criminal Justice, Standard 14-3.2 (2d ed. 1986 Supp.).

Of course, the most important "strategic choice" any defendant must make is whether to plead guilty or not guilty. Here, Gordon's posture both to his lawyer (from aught that appears) and certainly before us and the jury went far beyond a plea of "not guilty". His assertions of actual innocence and indeed victimization could not have been more vigorously asserted. In such a context, does the Sixth Amendment in effect require Mr. Fitzpatrick to say to his client, "Yes, but"? We do not think it does.

The absence of authority considering a case like Gordon's is perhaps unsurprising. Lawyers must take clients as they find them, and the client who persists in his protestation of innocence would scarcely welcome advice from his champion that would assure his incarceration. Put another way, it stretches common sense to impose on a lawyer the affirmative duty to canvass options which the lawyer knows are directly contrary to the client's wishes. It represents an even greater constitutional leap to hold that the Sixth Amendment requires that the defense lawyer press such unwelcome advice on what counsel would...

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