Free Response to Order to Show Cause - District Court of Colorado - Colorado

Case 1:01-cr-00359-WYD

Document 392

Filed 11/26/2007

Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 07-cv-02174-WYD Criminal Action No. 01-cr-00359-WYD-02

UNITED STATES OF AMERICA, Plaintiff-Respondent, v. BRAULIO MEDINA-GARCIA, Defendant-Movant. ___________________________________________________________________ RESPONSE TO MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 __________________________________________________________________ Plaintiff-Respondent United States of America, by and through undersigned counsel, files the following Answer pursuant to Rule 5 of the Rules Governing Section 2255 Proceedings. BACKGROUND On September 27, 2001, Movant was indicted on multiple counts of felony counts of selling, distribution, or dispensing, conspiracy to distribute, and racketeering with respect to controlled substances. On September 25, 2006, the

Case 1:01-cr-00359-WYD

Document 392

Filed 11/26/2007

Page 2 of 16

United States Attorney filed a criminal information charging Movant Braulia MedinaGarcia with one count of Interstate Travel in Aid of Racketeering Enterprises and Aiding and Abetting pursuant to 18 U.S.C. §§ 1952 and 2. Doc. 350. That same day, Movant entered into a Plea Agreement in which he pled guilty to the information, and in return the Government agreed to dismiss the other charges. Doc. 353. The Movant specifically acknowledged that the maximum statutory penalty he could receive would be 60 months' imprisonment, 3 years supervised release, and a $250,000 fine. Id. He also filed a Statement by Defendant in Advance of Plea of Guilty, in which he averred, in pertinent part, that: 19. Other than the promises of the government set out in the document entitled "Plea Agreement and Statement of Facts Relevant to Sentencing," no promises and no threats of any sort have been made to me by anyone to induce me or to persuade me to enter my plea(s) in this case. 20. No one has promised me that I will receive probation or any other form of leniency because of my plea(s) of guilty. 21. I have had sufficient opportunity to discuss this case and my intended plea(s) of guilty with my attorney. I do not wish to consult with my attorney any further before I enter my plea(s) of guilty. 22. I am satisfied with my attorney. I believe that I have been represented effectively and competently in this case. 23. My decision to enter the plea(s) of guilty is made after full and careful thought, with the advice of my attorney, and with full understanding of my rights, the facts and circumstances of the case, and
2

Case 1:01-cr-00359-WYD

Document 392

Filed 11/26/2007

Page 3 of 16

the potential consequences of my plea(s) of guilty. I was not under the influence of any drugs, medication, or intoxicants when I made the decision to enter my guilty plea(s). I am not now under the influence of any drugs, medication or intoxicants. 24. I have no mental reservations concerning the entry of my plea(s). 25. Insofar as it shows conduct on my part, the summary of facts set out in the document entitled "Plea Agreement and Statement of Facts Relevant to Sentencing" is true and correct, except as I have indicated in that document. 26. I know that I am free to change or delete anything contained in this statement and that I am free to list my objections and my disagreements with anything contained in the document entitled "Plea Agreement and Statement of Facts Relevant to Sentencing." I accept both documents as they are currently drafted. Doc. 355 at 6-7. Movant's sentencing hearing was held on January 10, 2007. See Reporter's Transcript - Sentencing (Jan. 10, 2007)(Exhibit A attached hereto). Mr. Steinberg did not appear at the hearing; instead, Movant was represented by Mr. Steinberg's cocounsel, Christopher Leach. Exhibit A at 1. Both counsel for the Government and Mr. Leach had no objection to the presentence investigation report, including the sentencing recommendation of 60 months, and asked the Court to follow that recommendation. Id. at 5-6. Then the Movant addressed the Court, asking that some allowance be made on his surrender date so that he could attend to some family matters. Id. at 6-7. When asked if he had anything else he wished to bring to the
3

Case 1:01-cr-00359-WYD

Document 392

Filed 11/26/2007

Page 4 of 16

Court's attention, he said only that he wished to apologize, particularly to his children. Id. at 7-8. The Court then discussed the appropriateness of a Residential Drug Abuse Treatment program (RDAP) placement with Mr. Stein (probation), Mr. Leach, and Movant. Id. at 9-12. The Court allowed that "the defendant is getting a substantial break because of the government's willingness to allow him to plead to an offense that had a much, much lower statutory cap." Id. at 12. This was because the sentencing guidelines yielded an offense level of 35, criminal history category of I, and an advisory range of 168 to 210 months, id. at 13, while the statutory cap for the particular offense, 18 U.S.C. § 1952, is 60 months. Thus, the Court sentenced Movant to 60 months' imprisonment, with 3 years supervised release. Id. at 13-14. The Court specifically noted that it had been a "routine sentencing" and that Mr. Leach had "handled it in a capable manner." Id. at 18. Judgment was entered on January 12, 2007, doc. 366, and Movant did not appeal. However, on October 16, 2007, Movant filed a Motion to Vacate the judgment of this Court pursuant to 28 U.S.C. § 2255. Doc. 380. On October 31, 2007, the Court ordered the government to respond to the Motion by November 20, doc. 387, which was subsequently extended to November 27, 2007. Doc. 391.

4

Case 1:01-cr-00359-WYD

Document 392

Filed 11/26/2007

Page 5 of 16

DISCUSSION Movant collaterally attacks the judgment of this Court with four claims that he received ineffective assistance from his defense counsel, Harvey Steinberg. Parsing the allegations, it appears that they state the following three challenges: (1) Movant received a greater sentence than he was led by counsel to believe he would receive, and that his counsel failed to advise the Court that Movant was a first offender; (2) because counsel's co-counsel, rather than counsel himself, appeared at the sentencing hearing, Movant was not afforded an opportunity to address the court at sentencing; and (3) counsel did not file a notice of appeal. Motion at 5-6. Generally, to establish a claim of ineffective assistance, a movant must show (1) that his counsel's performance fell below the constitutional minimum guaranteed by the Sixth Amendment; that is, "an objective standard of reasonableness," and (2) that his counsel's errors prejudiced him in that they "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687-88, 690 (1984). Counsel's performance is judged on a reasonableness standard, viewing all circumstances at the time when the conduct occurred. Strickland, 466 U.S. at 690; United States v. Smith, 10 F.3d 724, 728 (10th Cir. 1993). There is a strong presumption that counsel's performance was not ineffective and "`f[ell] within the
5

Case 1:01-cr-00359-WYD

Document 392

Filed 11/26/2007

Page 6 of 16

wide range of reasonable professional assistance.'" United States v. Clonts, 966 F.2d 1366, 1370 (10th Cir. 1992) (quoting Strickland, 466 U.S. at 689). To overcome this strong presumption, a defendant "must shoulder a heavy burden." Catches v. United States, 582 F.2d 453, 457 (8th Cir. 1978). The Supreme Court has recognized that [t]here is a strong presumption that counsel's performance falls within the wide range of professional assistance, ... the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986)(citations omitted)(emphasis added). Prejudice is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. However, a court may not set aside a conviction or a sentence solely because the outcome would have been different absent counsel's deficient performance." Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993). In order to demonstrate prejudice, a movant under 28 U.S.C. § 2255 must establish that counsel's performance rendered the proceedings "fundamentally unfair or unreliable." Id. at

6

Case 1:01-cr-00359-WYD

Document 392

Filed 11/26/2007

Page 7 of 16

369. If a movant fails to satisfy either prong of the Strickland test, the ineffective assistance of counsel claim must fail. See Strickland, 466 U.S. at 697. In the instant case, viewing all the circumstances at the time when the conduct occurred, the performance of defense counsel was objectively reasonable and effective, and Movant suffered no prejudice. I. Length of Sentence

Movant argues that his sentence was greater than his counsel led him to believe it would be. "Generally, a movant is barred from raising an alleged error affecting his conviction or sentence for the first time on collateral review unless he can show both cause for the default and actual prejudice." United States v. Wiseman, 297 F.2d 975, 979 (10th Cir. 2002)(citing United States v. Frady, 456 U.S. 152, 167-68 (1982)). Accord Coleman v. Thompson, 501 U.S. 722, 750 (1991)(a defendant is procedurally barred from presenting any claim in a § 2255 motion that he failed to raise on direct appeal unless he can demonstrate either "(a) cause for his failure to present the claim on appeal and prejudice suffered therefrom, or (b) that failure to review the claim will result in a `fundamental miscarriage of justice'"); United States v. Bailey, 286 F.3d 1219, 1223 (10th Cir.), cert. denied, 537 U.S. 877 (2002). Actual prejudice is a demanding standard which requires the defendant to carry a burden "significantly higher" than he would be required to satisfy on direct review under the
7

Case 1:01-cr-00359-WYD

Document 392

Filed 11/26/2007

Page 8 of 16

plain error standard. Frady, 456 U.S. at 166. "Section 2255 motions are not available to test the legality of matters which should have been raised on appeal." United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994); United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994), cert. denied, 487 U.S. 1222 (1988); Bousley v. United States, 523 U.S. 614, 621 (1998) (Section 2255 provides "an extraordinary remedy and will not be allowed to do service for an appeal" and "[w]here a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either `cause' and actual prejudice, or that he is actually innocent"). Moreover, the Supreme Court has expressly held that, once a defendant's chance to appeal an issue has been waived or exhausted, a court faced with a subsequent collateral attack is entitled to presume that he stands fairly and finally convicted, especially when, as here, "he already has had a fair opportunity to present his federal claims to a federal forum." Frady, 456 U.S. at 164. To the extent that Movant now asserts this claim in the context of an allegation of ineffective assistance of counsel, based on the alleged failure of his counsel, Mr. Steinberg, to properly advise him of the sentence he could likely expect as a result of his plea, the record plainly demonstrates that, in fact, Movant was well aware of the consequences. Mr. Steinberg spoke with Movant "numerous times and about the
8

Case 1:01-cr-00359-WYD

Document 392

Filed 11/26/2007

Page 9 of 16

charges against him and about his actions," and "thoroughly reviewed al of the discovery provided in the matter." See Affidavit, attached as Exhibit B at ¶ 3. Mr. Steinberg also "investigated and reviewed all defenses that I believed could have a potential for success," and "conducted legal research to determine whether or not there was a legal defense to the charges." Id. at ¶ 4. In the Plea Agreement, which Movant signed, he specifically acknowledged that the maximum statutory penalty he could receive would be 60 months' imprisonment, 3 years supervised release, and a $250,000 fine. Doc. 353 at 5. In his Statement by Defendant in Advance of Plea of Guilty, he acknowledged that: · Other than the promises of the government set out in the "Plea Agreement and Statement of Facts Relevant to Sentencing," no promises were made to him by anyone to induce or persuade him to plead guilty; No one promised him he would receive any leniency for his plea; He head sufficient opportunity to discuss his plea with his attorney, and he was satisfied with his attorney; His decision to plead guilty was made after full and careful thought, with the advice of his attorney, and with full understanding of his rights, the facts and circumstances of the case, and the potential consequences of his plea.

· · ·

Doc. 355 at 6-7. As Mr. Steinberg notes, he advised Movant "that the plea would in all likelihood result in a sentence at the statutory maximum of five years because of the amount of drugs involved in the case, as reflected in the plea agreement." See Exhibit
9

Case 1:01-cr-00359-WYD

Document 392

Filed 11/26/2007

Page 10 of 16

B at ¶ 2. Moreover, at his sentencing hearing, both Movant's counsel and the Government made no objection to the presentence investigation report, including the sentencing recommendation of 60 months, and asked the Court to follow that recommendation. Exhibit A at 5-6. When Movant spoke to the Court, he made no reference to his sentence at all. Id. at 6-8. Movant offers nothing to rebut this record. In addition, Movant argues that he was prejudiced because Mr. Steinberg did not advise the Court that Movant was a first offender. However, the Plea Agreement, which was submitted by the Movant through counsel and with the concurrence of the Government, stated that "Defendant appears to have no criminal history. Based on that information, if no other information were discovered, the defendant's criminal history category would be I." Doc. 353 at 5. Likewise, the presentence investigation report determined that Movant had no prior criminal history, for a total of 0 points a category of I, PSI at 6, and accepting the PSI without objection, Exhibit A at 5, 13, the Court found that his criminal history category was I. Exhibit A at 13. The Court was advised that Movant had no prior criminal history, but even if it wasn't he can point to no prejudice, since the Court determined Movant had the lowest criminal history category provided by the guidelines. Furthermore, Movant does not now suggest that, if he had been given more time to consider the government's plea offer, his decision would have been different;
10

Case 1:01-cr-00359-WYD

Document 392

Filed 11/26/2007

Page 11 of 16

nor does he allege that, but for the alleged errors of his counsel, he would not have agreed to the government's plea offer, but would have elected to go to trial, and thereby expose himself to a sentence two to three times greater than that envisioned by the plea agreement. Thus, Movant has (1) failed to overcome the "strong presumption" that Mr. Steinberg's performance was in any way outside "the wide range of reasonable professional assistance," and (2) failed to demonstrate that he suffered any prejudice whatsoever from the errors he now alleges were committed by his counsel. It is clear that Movant was well-advised, and acknowledged as much, that his sentence would quite likely be 60 months. This is the sentence he in fact received, and even when afforded the opportunity to address the Court at sentencing, he never suggested anything to the contrary. In addition, the Court was throughly advised that Movant had no prior criminal history, and its sentencing decision was consistent with that fact. Counsel's conduct was eminently reasonable, and there was no error. II. Counsel's Presence and Movant's Statement at Sentencing

Movant next complains that Mr. Steinberg did not appear at his sentencing hearing. While this is true, Movant was represented by Mr. Steinberg's co-counsel, Mr. Leach. Exhibit A at 1. Mr. Leach had thoroughly prepared for the hearing, id. at 3, and the Court noted on the record that, it had been a "routine sentencing" and
11

Case 1:01-cr-00359-WYD

Document 392

Filed 11/26/2007

Page 12 of 16

that Mr. Leach had "handled it in a capable manner." Id. at 18. Tellingly, Movant can point to no prejudice that he suffered as a result. The only purported prejudice he suggests is that "I can't mention nothing about my situation, and why I commit the felony." Motion at 5. However, the record clearly shows that Movant in fact did address the Court, but only asked that some allowance be made on his surrender date so that he could attend to some family matters. Exhibit A at 6-7. Even after being specifically asked , "is there anything else you want to say to the Court?", Movant said only that he wished to apologize, particularly to his children. Id. at 8. Thus, Movant cannot point to any deficiency in his legal representation, nor to any prejudice he suffered ­ the only prejudice he has claimed is belied by the record, which shows Movant had the opportunity to explain his motivation for committing his crime, and failed to do so. In addition, he has not and cannot show how he might have been prejudiced, given the sentence he ultimately received. III. Notice of Appeal

Finally, Movant complains that Mr. Steinberg did not file a Notice of Appeal. However, Mr. Steinberg discussed the matter with his client, and told him that, "there was no legitimate basis for appeal." Exhibit B at ¶ 5. Importantly, Mr. Steinberg states that Movant "understood and agreed that I would therefore no file an appeal." Id. Further, Movant does not now identify any meritorious defense that was
12

Case 1:01-cr-00359-WYD

Document 392

Filed 11/26/2007

Page 13 of 16

overlooked by his counsel. Furthermore, it is not the responsibility of counsel to present his client with a defense unless, under the facts or the law, there is a meritorious defense. The Court concluded as much when it observed that "the defendant is getting a substantial break because of the government's willingness to allow him to plead to an offense that had a much, much lower statutory cap." Id. at 12. This was because the sentencing guidelines yielded an offense level of 35, criminal history category of I, and an advisory range of 168 to 210 months, id. at 13, while the statutory cap for the particular offense, 18 U.S.C. § 1952, is 60 months. Thus, by virtue of the Plea Agreement, Movant received a sentence that was between 108 and 150 months shorter than what he could have received. It is well within "the wide range of reasonable professional assistance" for an attorney to advise his client that, based on the attorney's professional judgment, there are no meritorious grounds for an appeal. Second, Movant offers contradictory statements as to whether he actually requested his counsel to file an appeal, compare Application at 3 ("because my Attorney recommend not to do it") and 5 ("he recommend me not to do a appeal") with 6 ("The Attorney told me that he was going to submitt, [sic] an Appeal, and he don't do nothin.") Movant offers nothing to support his assertion that he requested that an appeal be filed, such as a timely inquiry by him as to the status of an appeal that he had requested. He also suggests no
13

Case 1:01-cr-00359-WYD

Document 392

Filed 11/26/2007

Page 14 of 16

grounds whatsoever upon which the sentence imposed by this Court could have, or should have, been appealed, and no such meritorious grounds are apparent. To the contrary, a sentence imposed within the advisory guideline range is presumptively reasonable. See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). Thus, Movant has failed to overcome the "strong presumption" that Mr. Steinberg's performance was in any way outside "the wide range of reasonable professional assistance," and has failed to demonstrate that he suffered any prejudice whatsoever from the errors he alleges his counsel committed. CONCLUSION For the above stated reasons, Movant has failed to allege and support facts which demonstrate that the advice and representation he received from his counsel, Mr. Steinberg, was outside the "wide range of reasonable professional assistance." The existing record in this case, together with Mr. Steinberg's explanation of his decisions, actions and counsel plainly indicate that the errors Mr. Steinberg is alleged to have committed did not, in fact, occur. Equally important, Movant has failed to demonstrate that he suffered any prejudice whatsoever as a result of the errors he now alleges were committed by his attorney. Indeed, Movant does not assert that, notwithstanding his admissions to this Court, he is actually innocent. Nor does he make the implausible assertion that, but for the errors he alleges were committed by
14

Case 1:01-cr-00359-WYD

Document 392

Filed 11/26/2007

Page 15 of 16

Mr. Steinberg, he would not have availed himself of the considerable benefits of the plea agreement Mr. Steinberg negotiated on his behalf, but would have instead chosen to subject himself to the possibility of a 17½-year sentence. Movant has failed to meet either prong of the Strickland standard. Accordingly his § 2255 motion should be denied and the matte dismissed without further proceedings. Respectfully submitted this 26th day of November, 2007. TROY A. EID United States Attorney

s/Paul Farley_______________ PAUL FARLEY Assistant U.S. Attorney Colorado No. 16512 1225 17th Street, Suite 700 Denver, Colorado 80202 303.454.0100 [email protected] Attorneys for Plaintiff-Respondent

15

Case 1:01-cr-00359-WYD

Document 392

Filed 11/26/2007

Page 16 of 16

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this on this 26th day of November, 2007, the foregoing ANSWER was electronically filed with the Clerk of the Court using the ECF system. I further certify that on this 26th day of November, 2007, a true and correct copy
of the foregoing ANSWER was placed in the U.S. Mail, postage prepaid, to:

Braulio Medina-Garcia, Reg. No. 30545-013 Dalby Correctional Institution 805 North Avenue F Post, Texas 79356

s/Dorothy Burwell Dorothy Burwell United States Attorney's Office 1225 17th Street, Suite 700 Denver, Colorado 80202 Telephone 303-454-0100 Fax: 303-454-0461 E-mail: [email protected]

16