United States v. Nevarez-Diaz, Crim. No. HCR 85-39

• Decision Date: 12 November 1986
• Docket Number: Civ. No. H 86-746.,Crim. No. HCR 85-39
• Citation: 648 F. Supp. 1226
• Parties: UNITED STATES of America v. Candelario NEVAREZ-DIAZ.
• Court: U.S. District Court — Northern District of Indiana

648 F. Supp. 1226

UNITED STATES of America v. Candelario NEVAREZ-DIAZ.

Crim. No. HCR 85-39, Civ. No. H 86-746.

United States District Court, N.D. Indiana, Hammond Division.

November 12, 1986.

No appearance for U.S.

Candelario Nevarez-Diaz, pro se.

ORDER

MOODY, District Judge.

This matter is before the court on a habeas corpus motion filed, pursuant to 28 U.S.C. § 2255, by petitioner Candelario Nevarez-Diaz on October 20, 1986. Pursuant to Rule 4, Rules Governing Section 2255 Proceedings in the United States District Courts ("Rules"), the court has conducted a preliminary consideration of the petitioner's motion and has found that he is not entitled to relief. Therefore, for the reasons discussed below in support of its finding, the court ORDERS that Mr. Nevarez-Diaz's section 2255 motion is hereby DENIED.

I. Background

On September 30, 1985, petitioner Nevarez-Diaz, along with a codefendant, was arrested by agents of the Drug Enforcement Administration ("DEA") on charges of selling and possessing heroin. Petitioner made an initial appearance that same day before U.S. Magistrate Andrew P. Rodovich. Petitioner requested court-appointed counsel and, on October 3, 1985, Magistrate Rodovich appointed attorney I. Alexander Woloshansky to represent him.

At the arraignment conducted on October 24, 1985, petitioner entered an initial plea of not guilty to a twenty-one (21) count indictment. During the subsequent month and a half, petitioner and his attorney initiated negotiations with the United States of America ("government") concerning a possible plea agreement. On December 16, 1985, petitioner appeared before this court with his attorney in order to enter a change of plea. By the terms of the agreement, petitioner agreed to plea guilty to three of the twenty-one counts.

The court, after lengthy and detailed questioning of petitioner, took the motion to enter a change of plea under advisement. On February 14, 1986, the court accepted petitioner's motion to change his plea from not guilty to guilty, and then sentenced him to 15 years' incarceration.

II.

Nevarez-Diaz first argues that he was denied effective assistance of counsel because his attorney failed to make clear to him that the sentences for the three counts he pled guilty to could run consecutively.

"To demonstrate ineffective assistance of counsel, a defendant must establish that the trial counsel's performance fell below an objective standard of reasonableness, and that the deficient performance prejudiced him." United States v. Driver, 798 F.2d 248, 253-52 (7th Cir.1986) (citing to Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) and Nutall v. Greer, 764 F.2d 462, 466 (7th Cir.1985)). This two-part test, as articulated by the Supreme Court in Strickland, has recently been held to apply "to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, ___ U.S. ___, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).

Applying the two-part test to this case, the court finds that petitioner has no factual basis for suggesting that his attorney's advice was incompetent, or that he was misinformed by his attorney about the maximum length of his sentence. See Hill v. Lockhart, ___ U.S. ___, 106 S.Ct. 366, 372, 88 L.Ed.2d 203 (1986) (White, J., concurring).

In his motion, petitioner states:

I clearly understood from my appointed counsel that I was to be sentenced to five years on each count for a total of fifteen years, but that all sentences would be concurrent. I did not realize that the sentences were consecutive until I received my time calculation form upon my arrival at FMC-Rochester. I would not have entered my plea had I been aware of the consequences imposed.

The court cannot agree. The facts, as demonstrated by the entire record and the transcript¹ of the change-of-plea hearing, clearly show that petitioner was informed, both by counsel and this court, that his sentences could run consecutively. Furthermore, petitioner actually admitted at the hearing that he was fully aware that he might be sentenced to 15 years.

When entertaining a change of plea from a defendant who has entered into a plea agreement with the government, this court routinely engages in a detailed dialogue with the defendant to ensure that he is fully apprised of all aspects of the agreement and to verify that the defendant is making the agreement voluntarily. The court conducted such a dialogue with Nevarez-Diaz on December 16, 1985 and, as a result, the court is satisfied that Nevarez-Diaz was in fact aware that his sentences might run consecutively.

First, found in the record of this case is a four-page document entitled "Petition to Enter A Change of Plea" which was filed in open court on December 16, 1985. Appearing on page four of this document are the signatures of Candelario Nevarez-Diaz, his counsel Alex Woloshansky, and Assistant United States Attorney Bruce D. Brattain. Paragraph 9(c) of that document explained petitioner's maximum sentence exposure as follows:

In further consideration of my plea of GUILTY, the Government has agreed with me and my counsel that any period of incarceration imposed upon me under Counts I, XV, and XIX, should the Court impose a term of incarceration should not exceed fifteen (15) years.

Second, there are statements at the end of the document indicating that Nevarez-Diaz believed that his attorney had done all that anyone could do to counsel and assist him, and that he understood the terms of the agreement fully, and finally, that he was making the agreement knowingly and voluntarily.

Third, at the hearing, this court reviewed the details of this document with petitioner. Specifically, the court directed petitioner's attention to paragraph 9 and to his own signature at the end of the document. In response, petitioner stated emphatically that he understood paragraph 9 and verified that the signature on the document was his own. Petitioner informed the court that his attorney had sat down with him prior to the hearing and had reviewed the document thoroughly.

Fourth, the court then offered a more expanded explanation of the agreement in order to satisfy itself that Nevarez-Diaz did in fact understand the import of his plea of guilty. The court explained that by pleading guilty to the three counts that petitioner could receive a sentence ranging from mere probation to the full fifteen years. Again, petitioner assured the court that he understood. Finally, the court asked petitioner if he had been given any assurances or promises, apart from those in the agreement, by anyone, including his attorney or the government, petitioner responded negatively.

Therefore, based on the foregoing review of the entire record and the transcript of the hearing, the court finds that Nevarez-Diaz was properly and adequately informed by his attorney that his three sentences could run consecutively. Accordingly, the court finds that Nevarez-Diaz is not entitled to relief because there is nothing to indicate "that defense counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65.

III.

Nevarez-Diaz also argues that he was denied effective assistance of counsel because his attorney failed to file a timely Rule 35(b) motion, Fed.R.Crim.P.

The record shows that Nevarez-Diaz was sentenced on February 14, 1986. In order for this court to entertain a Rule 35(b) motion, petitioner had to file the motion within 120 days of the day of sentencing.² Fed.R.Crim.P. 35(b). It is well settled that the 120-day time limit of Rule 35(b) is jurisdictional in nature and, as such, cannot be extended by the sentencing court. United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979); United States v. Ellenbogen, 390 F.2d 537 (2d Cir.1968); Urry v. United States, 316 F.2d 185 (10th Cir.1963); United States v. Chicago Professional Schools, Inc., 302 F.2d 549 (7th Cir.1962).

Petitioner did not file his motion until August 13, 1986, ninety days beyond the jurisdictional deadline. Accordingly, on September 24, 1986, this court denied his Rule 35(b) motion. Nevarez-Diaz now petitions this court, under 28 U.S.C. § 2255, for relief from that order because of the ineffective assistance of his counsel. In his motion, Nevarez-Diaz states:

My appointed counsel repeatedly promised me that he would file a timely Rule 35 Motion for me. Yet, after each assurrance, after receiving information he requested from staff here at FMC-Rochester, he allowed the time for filing to expire without filing the Motion, thus denying me the opportunity of having my sentence reviewed.

Petitioner contends that he was denied his constitutional right to effective assistance of counsel because his court-appointed attorney failed to file a timely Rule 35(b) motion. Without reaching the issue of whether or not the failure to file a timely Rule 35(b) motion might constitute ineffective assistance counsel, as defined by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the court finds that petitioner was neither constitutionally nor statutorily entitled to counsel for purposes of the post-trial Rule 35(b) motion and, consequently, he has no grounds for a claim of ineffective assistance of counsel.

The constitutional right to effective assistance of counsel is not limited to sixth amendment situations, the right has also been upheld under the due process clauses of the fifth and fourteenth amendments. See W. LaFave & J. Israel, Criminal Procedure 473-81 (1985). Additionally, Congress created statutory rights to effective assistance of counsel when it enacted 18 U.S.C. § 3006A. The court finds that Nevarez-Diaz was entitled to neither a constitutional nor a statutory right to effective assistance of counsel for the purpose of bringing his Rule 35(b) motion.

A. Constitutional Right to Counsel

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