U.S. v. Ricchio, CR03-2053-LRR.
| Decision Date | 07 March 2008 |
| Docket Number | No. CR03-2053-LRR.,No. C05-2051-LRR.,CR03-2053-LRR.,C05-2051-LRR. |
| Citation | 553 F.Supp.2d 1051 |
| Parties | UNITED STATES of America, Plaintiff, v. Alex RICCHIO, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Matthew J. Cole, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.
TABLE OF CONTENTS
I. INTRODUCTION ....................................................................1053
II. RELEVANT PROCEDURAL HISTORY .....................................................1053
III. SUMMARY OF RELEVANT HEARINGS ....................................................1055
A. Sentencing Hearing ..........................................................1055
B. Evidentiary Hearing .........................................................1056
1. Testimony of Jonathan B. Hammond ........................................1056
2. Testimony of Defendant ..................................................1057
3. Testimony of Angela Ricchio .............................................1058
4. Testimony of Michaela Graves ............................................1058
5. Testimony of Cindy Stowe ................................................1059
IV. LEGAL STANDARDS .................................................................1059
A. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255 .................1059
B. Standards Applicable to Sixth Amendment .....................................1060
V. ANALYSIS ........................................................................1062
A. Defendant's Claims ..........................................................1062
B. Certificate of Appealability ................................................1063
VI. CONCLUSION ......................................................................1064
The matter before the court is Defendant Alex Ricchio's motion to vacate, set aside or correct sentence (docket no. 37). Defendant filed such motion pursuant to 28 U.S.C. § 2255.1 The government filed a response (docket no. 42) on February 6, 2006. For the following reasons, Defendant's 28 U.S.C. § 2255 motion shall be denied. In addition, a certificate of appealability shall be denied.
On October 22, 2003, the government filed an indictment against Defendant. Count 1 of the indictment charged Defendant with conspiracy to manufacture and distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(B)(viii) and 21 U.S.C. § 846. Count 2 charged Defendant with manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(C) and 21 U.S.C. § 846.
On January 7, 2004, Defendant, without entering into a plea agreement with the government, pled guilty to Count 1, the drug conspiracy count. On January 22, 2004, the court accepted Defendant's plea of guilty.
In April of 2004, the United States Probation Office prepared a pre-sentence investigation report and a sentencing recommendation. On May 20, 2004, the government filed a sentencing memorandum. On May 25, 2004, Defendant filed a sentencing memorandum. On June 1, 2004, the court gave Defendant credit for time served on a related state conviction, and it sentenced Defendant to 98 months imprisonment. The court also imposed four years supervised release, ordered Defendant to pay a $100 special assessment and dismissed Count 2 of the indictment. Judgment entered against Defendant on the same date that the court sentenced Defendant. Defendant did not file a direct appeal.
On June 6, 2005, Defendant filed the instant motion. Along with his motion, Defendant submitted an affidavit. In his motion, Defendant claims that his counsel provided ineffective assistance during the sentencing phase of his case. Specifically, Defendant alleges:
My atty abandoned me during my sentencing by (1) w/drawing "[safety-valve]" after requesting it; (2) w/drawing [presentence investigation report] objections that would have lowered my sentencing; (3) abandoning my "time-credit served for state sentence" which was part of federal crime; (4) recommending the "high end" of range.
He also claims that his counsel failed to appeal the sentence that the court imposed. In that regard, Defendant alleges:
In the presence of my family & friend — after I was sentenced, he said he would not help me appeal. He said the case was over. Later on the phone he said he could not help me appeal because "He was not my lawyer any more."
On July 21, 2005, Defendant filed Angela A. Ricchio's affidavit in support of his motion, and, on August 26, 2005, Defendant filed Michaela A. Graves' affidavit in support of his motion.
On December 13, 2005, the court ordered the government to respond to Defendant's motion. On February 6, 2006, the government filed a response. Although he did not file a reply, Defendant requested an evidentiary hearing. The court appointed counsel and held an evidentiary hearing on November 7, 2007.2 Defendant's motion is fully submitted, and the court now turns to consider it.
The undersigned sentenced Defendant on June 1, 2004. At the sentencing hearing, Defendant acknowledged that he pled guilty and that he faced a sentence that fell between five and forty years. Defendant and the government made a record regarding their sentencing agreement. Specifically, the government noted that the parties agreed that the base offense level was 32.3 Defendant and the government asserted that a three-level reduction for acceptance of responsibility was warranted. Given an adjusted total offense level of 29 and a criminal history category I, Defendant faced a range of imprisonment of 87 to 108 months. The government noted that, although the applicable guideline range was agreed upon, Defendant agreed to argue for a sentence of 98 months and the government agreed to argue for a sentence of 108 months. Per the sentencing agreement, Defendant declined to argue a safety-valve adjustment.4 Both parties agreed not to seek a departure. The court was told that there were no remaining objections. Defendant agreed with the government's statement of the parties' sentencing agreement.
After the terms of the sentencing agreement were made part of the record, the court questioned Defendant about the sentencing agreement. Defendant told the court that he read the pre-sentence investigation report and that he had the opportunity to raise with his attorney any concerns that he had with the pre-sentence investigation report. Defendant stated that his attorney made all the objections to the pre-sentence investigation report that he requested. Defendant also stated that he was in agreement with his attorney and the government that the court should sentence him within the agreed upon range, that is 87 to 108 months imprisonment. The government clarified that the effective range would be 98 to 108 months based on the parties' sentencing agreement. Defendant explained that, during negotiations with the government, he preserved his right to argue for a sentence of 98 months rather than 108 months because he wanted credit for ten months that he had served on a related discharged state sentence.
The court agreed to sentence Defendant within the range agreed to by the parties, that is, 98 to 108 months. During his colloquy, Defendant gave no indication that he was seeking any sentence except the 98 months urged by his attorney. The court, in imposing a sentence of 98 months, agreed with Defendant's attorney and gave Defendant credit for ten months that he served on his state conviction. The court advised Defendant of his right to file a written appeal within ten days. Thereafter, the court gave Defendant an opportunity to ask questions, and Defendant indicated that he understood everything and that he had no questions.
The November 7, 2007 evidentiary hearing focused on Defendant's claim that he requested his attorney to file an appeal and his attorney refused to file an appeal. During the evidentiary hearing, Zoshua Z. Zeutenhorst represented Defendant, who participated by telephone. Assistant United States Attorney C.J. Williams represented the government.
Jonathan B. Hammond, Defendant's attorney in the instant case, graduated from law school in 1984 and has practiced criminal law in federal court since 1987. He has been a member of the court's CJA panel since 1987, representing indigent defendants. Hammond testified that he has experience representing clients on appeal. Even when it was his opinion that there were no legitimate grounds to appeal, Hammond has filed a notice of appeal when asked to do so by his client. Hammond holds the opinion that it is not his prerogative to refuse to file a notice of appeal. If he thinks his client's filed appeal does not have legal merit, Hammond acknowledged that he can file an application to withdraw as counsel and file an Anders5 brief setting forth any arguable claim his client may have. He has followed this procedure many times before.
In June of 2004, it was Hammond's practice to discuss with his client and explain to his client, prior to sentencing, the likely sentencing and appeal issues, the right to appeal and the necessity of a timely-filed notice of appeal. After sentencing, Hammond often discussed with his client whether he or she wished to file an appeal. Hammond noted that he commonly reflected his understanding of his client's wishes in correspondence generated after the sentencing.
Hammond recalled that Defendant pled guilty to conspiracy to distribute methamphetamine and that the parties were not able to reach a plea agreement because of accusations made by Defendant's co-conspirators as to the drug quantities with which Defendant was involved. When the pre-sentence...
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