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November 16, 2000


The opinion of the court was delivered by: Maurice B. Cohill, Jr., Senior United States District Judge


Petitioner Elvin A. Martinez seeks habeas corpus relief pursuant to 28 U.S.C. § 2255 to vacate his guilty plea and sentence. He is presently serving a 72 month term of imprisonment for conspiracy to possess with intent to distribute cocaine base, to which he pled guilty. In his section 2255 motion, Petitioner, whose native language is Spanish, alleges that his counsel was ineffective in failing to communicate the nature of court proceedings as a result of which he did not fully understand the proceedings and could not assist in his defense. He also asserts that counsel was ineffective in failing to file an appeal. Because we find that Petitioner's counsel was not ineffective, his petition will be denied. We will also deny Petitioner's request for an evidentiary hearing as the record conclusively establishes that the Petitioner is not entitled to the relief sought in the petition. 28 U.S.C. § 2255.
Petitioner was named, along with his brother Samuel Martinez, in a two count indictment charging conspiracy and possession with intent to distribute crack cocaine. At his initial appearance on December 7, 1998, the Magistrate Judge provided both Petitioner and his brother with an interpreter, Helen Cranston. See Record of Magistrate's Proceeding (Doc. No. 3); Order (Doc. No. 28) (ordering that costs of the interpreter are to be borne by the United States). David A. Schroeder, Esquire, was appointed as counsel and represented Petitioner at his detention hearing held on December 10, 1998. Petitioner pled not guilty at his arraignment plea on December 17, 1998. On August 26, 1999, pursuant to a plea agreement with the Government, he withdrew his not guilty plea and entered a plea of guilty as to the conspiracy count. An interpreter, Angela Ocasio, was provided at Petitioner's change of plea hearing. Ms. Ocasio also appeared as an interpreter at Petitioner's sentencing hearing held on November 30, 1999. Prior to pleading guilty to Count I of the indictment, Petitioner faced a term of imprisonment of not less than ten years to a maximum of life. As a result of pleading guilty to Count I, the government agreed to recommend that the offense level be reduced by three levels based on Petitioner's timely acceptance of responsibility. The court accepted the three-level reduction resulting in a guideline imprisonment range of 87 to 108 months, rather than the original guideline range of 108 to 135 months. In sentencing Petitioner, the court also departed downward from the above guideline imprisonment range based on the motion of the Government as a result of Petitioner's substantial assistance. As a result, Petitioner was sentenced to 72 months' imprisonment.
I. Discussion
Petitioner sets forth two separate ineffectiveness claims in his 2255 petition. As noted, he attacks his guilty plea and resulting sentence by alleging that he was denied effective assistance of counsel in that his counsel knew he was not conversant in English and took no steps to insure that Petitioner had sufficient notice of the charges against him or otherwise was able to comprehend the proceedings. In particular, Petitioner notes the failure of his defense counsel to provide him with Spanish-language translations of documents. He alleges that as a result, he was denied due process, equal protection of the law, and access to the courts. He requests that his sentence and plea be vacated, and that he be provided with a Spanish speaking attorney. In Petitioner's second challenge, he alleges ineffectiveness of his counsel in failing to file an appeal. Petitioner avers that his attorney never mentioned the possibility of an appeal before or after sentencing. We will address each of Petitioner's claims in turn.
A. Applicable Legal Principles for Ineffectiveness Claims
"The Sixth Amendment right to counsel encompasses the right to effective assistance of counsel." McAleese v. Mazurkiewicz, 1 F.3d 159, 166 (3d Cir. 1993) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984), cert. denied, 510 U.S. 1028 (1993)). "A claim of ineffective assistance requires a defendant to establish that counsel's representation fell below an objective standard of reasonableness and that the deficient performance prejudiced the defendant." McAleese, 1 F.3d at 166; Strickland, 466 U.S. at 687-688. "To establish prejudice, a defendant must demonstrate that there is a `reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Weeks v. Snyder, 219 F.3d 245, 257 (3d Cir. 2000) (quoting Strickland, 466 U.S. at 694). The same principles apply to a defendant challenging a guilty plea. Hill v. Lockhart, 474 U.S. 52 (1985). To establish prejudice in a guilty plea case, the defendant "must demonstrate 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.'" Weeks, 219 F.3d at 257 (quoting Hill, 474 U.S. at 59). A court must be "highly deferential" in judging counsel's performance. Strickland, 466 U.S. at 689. In addition, a "reviewing court `must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" McAleese, 1 F.3d at 175 (quoting Strickland, 466 U.S. at 692).
A similar two-part standard applies with respect to an ineffectiveness claim challenging counsel's failure to appeal. See Roe v. Flores-Ortega, 120 S.Ct. 1029 (2000) (holding that Strickland test applies to ineffectiveness claims alleging the failure to appeal). The United States Supreme Court in Flores-Ortega first looked to whether counsel in fact consulted with the defendant about a potential appeal. Id. at 1035. "If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal." Id. "If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel's failure to consult with the defendant itself constitutes deficient performance." Id. In evaluating this question, the Supreme Court held that counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.
B. Failure of Counsel to Account for Petitioner's Inability to Comprehend

and Understand the Proceedings

Petitioner alleges that he speaks little or no English and was therefore unable to understand his attorney or to assist in the preparation of his defense. He further contends that his lawyer was aware of the communication problem yet failed to provide Petitioner with written translations of relevant court documents. Petitioner alleges that as a result of his counsel's deficient performance he was denied notice of the charges against him violating his due process rights. The record belies Petitioner's assertion.

At their initial appearance, the Magistrate Judge explained to Petitioner and his co-defendant as follows:

THE COURT: Now, gentleman, we have an interpreter there for your benefit. If anything is going too quickly and you don't understand it, make sure the interpreter has time to tell it to you.
Initial Appearance Transcript, December 7, 1998, at 2. The prosecuting attorney then explained to the co-defendants the charges against them and the maximum penalties they faced. Id. at 3-4. Petitioner indicated that he understood the charges against him.
Id. at 4. The court then engaged Petitioner in a colloquy to determine his financial status prior to appointing counsel. Id. at 4-7. Petitioner appropriately answered the questions himself and there is no indication that he had difficulty in understanding the questions. Id. In contrast, when the court conducted the same colloquy with Petitioner's co-defendant, his brother ...

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