U.S. v. Mateo

• Citation: 950 F.2d 44
• Decision Date: 06 June 1991
• Docket Number: No. 90-1592,90-1592
• Parties: UNITED STATES of America, Appellee, v. David MATEO, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 44

950 F.2d 44

UNITED STATES of America, Appellee, v. David MATEO, Defendant, Appellant.

No. 90-1592.

United States Court of Appeals, First Circuit.

Heard June 6, 1991.

Decided Nov. 27, 1991.

Albert C. Bielitz, Jr., Cambridge, Mass. with whom Jillyn K. Schulze, Baltimore, Md. and Law Office of Albert C. Bielitz, Jr., Cambridge, Mass., were on brief for defendant, appellant.

Lawrence D. Gaynor, Asst. U.S. Atty. with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief for appellee.

Before SELYA and CYR, Circuit Judges, and STAHL, ^* District Judge.

CYR, Circuit Judge.

David Mateo appeals his conviction and sentence for possessing heroin with intent to distribute. Mateo claims that he was convicted on an invalid guilty plea and sentenced without the assistance of counsel or the effective assistance of counsel. We affirm the conviction, vacate the sentence, and remand for resentencing.

I

DISCUSSION

1. Rule 11

Appellant Mateo claims that his conviction must be set aside, as it was based on an invalid guilty plea. See Fed.R.Crim.P. 11. Mateo asserts on appeal, for the first time, that he was unaware when he entered the guilty plea that he was waiving the right to challenge the search warrant which led to his arrest. Mateo states that he had asked his attorney to challenge the search warrant and that he expected the challenge to proceed notwithstanding the entry of a guilty plea. The record belies Mateo's rule 11 claim.

We recently addressed another rule 11 challenge raised for the first time on appeal. In United States v. Parra-Ibanez, 936 F.2d 588, 593-94 (1st Cir.1991), the defendant successfully challenged the validity of his guilty plea on the ground that his use of medications had not been explored by the district court at the rule 11 hearing. We stated that a rule 11 challenge normally will not be considered waived since rule 11 protects not only the rights of defendants but also the " 'fairness, integrity [and] public reputation of judicial proceedings.' " Id. at 593 (quoting United States v. Daniels, 821 F.2d 76, 81 (1st Cir.1987) (quoting United States v. Adams, 634 F.2d 830, 836 (5th Cir.1981)).

Under Parra-Ibanez, Mateo cannot prevail, however, since he has neither alleged nor demonstrated any defect in the rule 11 proceeding. Instead, Mateo's complaint below was that sentencing should not have proceeded once Mateo mentioned that counsel had not challenged the search warrant as requested. Not until the present appeal did Mateo challenge his guilty plea. As amply demonstrated by Mateo's own statements at the rule 11 hearing and at sentencing, however, his guilty plea was entered knowingly and voluntarily.

The district court accepted Mateo's plea only after a careful exploration of all elements of a voluntary and knowing guilty plea under rule 11. ¹ Mateo acknowledged that he had discussed the case with court-appointed counsel and was satisfied with his representation. He acknowledged as well that by pleading guilty he was giving up his right to trial and the right to challenge the government's evidence at trial, and that he would be convicted and sentenced on the basis of his guilty plea.

The prosecutor described the government's evidence and the discovery of Mateo and the heroin in the apartment of Mateo's female companion when the police executed the search warrant that Mateo wanted challenged. Mateo acknowledged the correctness of the government's version of the evidence. ² Thus, among other things, Mateo acknowledged at the rule 11 hearing that he understood that he was giving up his right to challenge the government's evidence, which of necessity included the evidence obtained in the execution of the search warrant. We therefore conclude that the rule 11 claim is meritless.

2. Ineffective Assistance

Mateo advances two ineffective assistance claims. First, he asserts that court-appointed counsel rendered ineffective assistance by not insisting that the district court resolve the validity of Mateo's guilty plea once Mateo informed the court that Mr. Cohen had failed to challenge the search warrant. Second, he argues that counsel failed to present mitigating factors which might have persuaded the district court to impose a lower sentence within the guideline sentencing range. ³

Ineffective assistance claims are subject to the well-established test first articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As we have explained, Strickland requires that the "defendant ... first demonstrate that his attorney's performance was deficient and then show that this deficiency prejudiced the defense." United States v. Caggiano, 899 F.2d 99, 101 (1st Cir.1990).

Mateo argues that his second court-appointed counsel, David Cicilline, Esquire, failed to challenge the validity of the guilty plea. Mateo argues that the issue of the validity of his guilty plea surfaced during the first sentencing hearing when Mateo questioned Mr. Cohen's failure to challenge the legality of the search warrant prior to the rule 11 hearing. Although Mr. Cicilline was not in attendance at Mateo's first sentencing hearing and Mateo does not contend that he ever asked Mr. Cicilline to challenge the validity of the guilty plea, the district court directed Mr. Cicilline to undertake representation of Mateo and to file any appropriate request for relief.

A review of the transcripts of the rule 11 hearing and the first sentencing hearing, particularly the categorical reassurances Mateo gave the district court at the first sentencing hearing--that he had pled guilty because he was in fact guilty, ⁴--could not have left any doubt in the mind of reasonably competent counsel that no plea challenge was either desired or warranted. See also supra note 2. Indeed, even now Mateo makes no claim that "he would not have pleaded guilty and would have insisted on going to trial." See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985) ("in order to satisfy the 'prejudice' requirement, the defendant must show 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."). Thus, Mateo can demonstrate neither deficient professional performance nor prejudice.

3. Sixth Amendment Right to Assistance of Counsel

"In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defence." U.S. Const. amend. VI. The sixth amendment entitles every criminal defendant to the assistance of counsel at all "critical stages" of the proceedings, United States v. Wade, 388 U.S. 218, 225, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967); United States v. Batista, 834 F.2d 1, 3 (1st Cir.1987), unless the right is competently waived by the defendant. Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) (a defendant who would appear pro se must first provide "an intelligent and competent waiver" of the sixth amendment right to counsel); United States v. Betancourt-Arretuche, 933 F.2d 89, 92 (1st Cir.1991) (setting forth three-part test for waiver of counsel). See also Fed.R.Crim.P. 44(a) ("[e]very defendant who is unable to obtain counsel shall be entitled to have counsel ... at every stage of the proceedings from initial appearance ... through appeal, unless that defendant waives such appointment.").

Mateo concedes that court-appointed counsel appeared at both sentencing hearings and at every other stage of the district court proceedings. Nevertheless, he correctly contends that the events that transpired at the second sentencing hearing raise a serious question as to whether he was afforded the assistance of counsel contemplated by the sixth amendment. Mateo maintains that Mr. Cicilline provided no advocacy in his behalf at the second sentencing hearing. We detail the relevant background.

At the first sentencing hearing, on May 1, 1990, Mr. Cohen continued to represent Mateo. The final version of the presentence report ("PSR") recommended a total offense level of 20. Mr. Cohen objected to three PSR recommendations and urged that the total offense level be set at 16. The court carefully considered Mr. Cohen's arguments, but concluded that the total offense level should be set at 20 and assigned a level I criminal history category, which resulted in a guideline sentencing range between 33 and 41 months.

Prior to imposing sentence, the district court informed Mateo that it would welcome any statement or evidence Mateo wished to offer. Mateo responded that he wished to challenge the search warrant. The court repeatedly reminded Mateo that he had pled guilty and that the validity of the search warrant was not before the court. ⁵ A colloquy ensued during which Mateo told the court that, before he tendered his guilty plea, he had asked Mr. Cohen to challenge the search warrant. ⁶ Mateo indicated that Mr. Cohen had advised him that the police did have a search warrant and that Mr. Cohen therefore had not raised a search warrant challenge. ⁷

The district court then asked Mateo why he had pled guilty and Mateo responded: "because I am guilty. I am not denying that I am guilty." The sentencing judge, understandably perplexed, observed: "I am entirely unclear as to what defendant's position is." The court thereupon announced that replacement counsel would be appointed to represent Mateo and would be directed to ascertain Mateo's position regarding the search warrant and to request appropriate relief. The first sentencing hearing was adjourned.

At the second sentencing hearing, on June 15, 1990, Mr. Cicilline, Mateo's newly-appointed counsel, appeared as counsel of record. The court ordered a consolidation of the first and second sentencing hearings and caused the entire transcript of the first sentencing hearing to be read into the record at the second hearing. Mr. Cicilline informed the court that, after reviewing Mateo's...