US v. Jerome

• Decision Date: 12 June 1996
• Docket Number: No. CR-N-87-16-ECR and CV-N-95-375-ECR.,CR-N-87-16-ECR and CV-N-95-375-ECR.
• Parties: UNITED STATES of America, Plaintiff, v. Gary JEROME, Defendant.
• Court: U.S. District Court — District of Nevada

933 F. Supp. 989

UNITED STATES of America, Plaintiff, v. Gary JEROME, Defendant.

Nos. CR-N-87-16-ECR and CV-N-95-375-ECR.^*

United States District Court, D. Nevada.

June 12, 1996.

COPYRIGHT MATERIAL OMITTED

L. Anthony White, Asst. U.S. Atty., Reno, NV, for Plaintiff.

George J. Cotsirilos, Jr., San Francisco, CA, and Steven Sexton, Reno, NV, for Defendant.

ORDER

EDWARD C. REED, Jr., District Judge.

Presently before the court for decision is Defendant Gary Jerome's petition (Doc. # 639) under 28 U.S.C. § 2255 to vacate his sentence of imprisonment. The parties have filed memoranda of points and authorities in support of and in opposition to the petition, and the government and Defendant Jerome have now jointly submitted for the court's approval a proposed agreement (Doc. # 658A) in settlement of the petition to vacate the sentence and the judgment of conviction against Gary Jerome entered December 8, 1987 (Doc. # 537).

On July 2, 1987 Gary Jerome was convicted of carrying on a continuing criminal enterprise under 21 U.S.C. § 848, conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute under 21 U.S.C. §§ 841, 846, and interstate transportation in aid of racketeering, 18 U.S.C. § 1952. On December 8, 1987, Jerome was sentenced to a term of thirty-five years in the custody of the Attorney General.

More than seven years later, on June 13, 1995, Jerome, through counsel, filed his petition under 28 U.S.C. § 2255 to vacate the judgment of conviction on the grounds that he was denied effective assistance of counsel at trial, in violation of his rights under the Sixth Amendment. The government has agreed with the substance of Jerome's ineffective assistance claim, and has joined in a proposed agreement in settlement of that claim, which agreement is now before the court for approval. The parties have stipulated that Jerome's trial counsel provided "incompetent and unreasonable advice" which caused Jerome to reject a pretrial plea offer by the government, thereby depriving Jerome of denied effective assistance of counsel at trial. The proposed settlement agreement would, in effect, require the court to vacate the 1987 judgment of conviction, and to permit Jerome to plead guilty to two of the counts in the original indictment.

A petition to vacate a sentence of imprisonment under 28 U.S.C. § 2255, like a petition for a writ of habeas corpus, is not technically a continuation of the original criminal proceeding, but is itself a free-standing civil action. Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). Nor does a Section 2255 petition implicate the constitutional procedural safeguards required, for example, in the acceptance of a plea of guilty.¹ United States v. Malik, 800 F.2d 143, 146 (7th Cir.1986). A proceeding on a petition for vacatur of sentence under Section 2255 is therefore governed by the rules applicable to ordinary civil actions. United States v. Somers, 552 F.2d 108 (3d Cir.1977); Ferrara v. United States, 547 F.2d 861 (5th Cir.1977).

The oft-repeated preference for settlement of civil disputes therefore bears on the court's decision in this matter; settlement relieves the parties of the continuing burden of litigation and frees scarce judicial resources to attend litigants who cannot otherwise resolve their differences. "A settlement is the parties' business. They may compromise just as they may reach any other (lawful) contract." In re Memorial Hospital, 862 F.2d 1299, 1302 (8th Cir.1988). On the other hand, where the bargain the parties seek to strike requires judicial action, economy is no longer necessarily the prime consideration. Where, as here, the parties' proposed agreement will necessitate vacatur of a sentence of imprisonment imposed following a jury verdict in a criminal case, it "may be inappropriate to approve a settlement that squanders judicial time already invested." The court must consider the judiciary's interest in the consistency and predictability of its own processes, as well as the litigants' interest in the efficient resolution of their dispute. Id.

In addition, the court is not obliged to approve any settlement agreement proposed by the parties. A settlement, being a form of contract, may be void as against public policy, and thus ineligible for judicial approbation. Generally speaking, settlement agreements are void as against public policy only if they "directly contravene a state or federal statute or policy." In re Smith, 926 F.2d 1027, 1029 (11th Cir.1991) (citing, inter alia, Yockey v. Horn, 880 F.2d 945, 950 (7th Cir.1989); Jackson Purchase Rural Elec. Coop. Ass'n v. Local Union 816, 646 F.2d 264, 267 (6th Cir.1981); United States v. City of Miami, 614 F.2d 1322, 1333 (5th Cir. 1980)). Where, as here, no state statute or policy is concerned, a settlement agreement is void as against federal public policy if it contravenes or tends to nullify the letter and spirit of an Act of Congress. Atlantic Co. v. Broughton, 146 F.2d 480, 482 (5th Cir.1944), cert. denied, 324 U.S. 883, 65 S.Ct. 1021, 89 L.Ed. 1433 (1945).

The court recognizes its obligation not to try the case during settlement negotiations, and to hesitate before substituting its own judgment for that of counsel. In re Smith, 926 F.2d at 1028. Nevertheless, before placing its imprimatur on the proposed settlement agreement, the court must satisfy itself that the agreement is fair, adequate and reasonable, is not the product of collusion between the parties, and does not contravene public policy. Id. at 1028-29. To that extent at least, the court cannot avoid some inquiry into the merits of the case.

The Constitution guarantees every person accused of a crime the assistance of counsel for her defense. U.S. Const. amend. VI. That right is violated where defense counsel is so incompetent, or renders advice so deficient, as to be outside the range of professionally competent legal assistance, and where, as a result of that incompetent assistance, there exists a reasonable probability of a different result at trial sufficient to undermine confidence in the outcome. Ortiz-Sandoval v. Gomez, 81 F.3d 891 (9th Cir.1996) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). To put it another way, a sentence of imprisonment may be vacated on the grounds of ineffective assistance of counsel only where it is shown that counsel committed errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. United States v. Span, 75 F.3d 1383, 1390 (9th Cir.1996) (quoting Strickland, id. at 687, 104 S.Ct. at 2064).

A defendant seeking to vacate her conviction on this basis therefore must show both that the level of counsel's performance was so far below what is normally acceptable as to in effect deprive the accused of a defense and that but for that deficiency there exists a reasonable likelihood that the trial would have had a different result. Speculation that a different lawyer, or the same lawyer using different strategy or tactics, would have changed the result, is insufficient to demonstrate the requisite "prejudice." Cooks v. Spalding, 660 F.2d 738, 740 (9th Cir.1981), cert. denied, 455 U.S. 1026, 102 S.Ct. 1729, 72 L.Ed.2d 147 (1982). In addition, there exists a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment. Ortiz-Sandoval, 81 F.3d at 896 (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2065-66). On a motion to vacate sentence under 28 U.S.C. § 2255, judicial inspection of the adequacy of the legal assistance provided the petitioner must be highly deferential. Span, 75 F.3d at 1387.

The most serious specific allegation in Jerome's claim that his retained counsel at trial, Carter King, rendered legal advice so deficient as to deprive Jerome of effective assistance, is that despite overwhelming incriminatory evidence, King advised Jerome to reject a plea offer and proceed to trial. The parties do not dispute Jerome's claim that on the eve of trial the government offered to dismiss the CCE count of the indictment and to recommend a prison sentence of no more than twenty years' duration, in exchange for Jerome's plea of guilty to the other charges in the indictment.

Jerome makes this argument despite the fact that on direct appeal his CCE conviction was overturned. United States v. Jerome, 942 F.2d 1328 (9th Cir.1991). He maintains that had he accepted the original plea offer with its "cap" of twenty years' incarceration, his total prison sentence would have been much shorter. It is true that a lesser sentence can qualify as a "different result, thus satisfying the "prejudice" aspect" of the Strickland rule. United States v. Blaylock, 20 F.3d 1458, 1467-68 (9th Cir. 1994).

Jerome argues alternatively that his trial counsel committed a grievous error in deciding to place most if not all of his strategic eggs in the CCE basket. By devoting so much effort towards winning an acquittal on the CCE charge, Jerome says, trial counsel forsook the opportunity to wage a more thorough campaign against the other charges in the indictment, thereby virtually ensuring convictions on those other, lesser charges.

The parties did not prior to trial conclude a final plea agreement. Shortly before commencement of trial, the Assistant United States Attorney assigned to Jerome's case informed defense counsel that the government would consider dismissing the continuing criminal enterprise charge and recommending that Jerome receive a sentence of no more than twenty years' duration on all the remaining charges. Declaration of AUSA L. Anthony White at 1, appended to the Government's Opposition to Petition to Vacate Conviction and Sentence (Doc. # 653).

The court will assume, arguendo, that the government's informal pretrial plea offer would have ripened into a binding plea agreement under Fed.R.Crim.P. 11(e)(2) had Jerome...