United States District Court, Western District of Pennsylvania
November 16, 2000
UNITED STATES OF AMERICA
ELVIN A. MARTINEZ
The opinion of the court was delivered by: Maurice B. Cohill, Jr., Senior United States District Judge
MEMORANDUM OPINION and ORDER
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
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
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.
Id. at 1036. The Court further explained that in
"making this determination, courts must take into
account all the information counsel knew or should
have known." Id. Whether the conviction was the
result of a guilty plea is a "highly relevant factor
. . . because a guilty plea reduces the scope of
potentially appealable issues and because
such a plea may indicate that the defendant seeks an
end to judicial proceedings." Id. In addition, in
cases where a defendant does plead guilty, the court must
consider whether the defendant received the sentence
bargained for in exchange for the plea, and whether
the plea agreement explicitly reserves or waives
defendant's appeal rights. Id. In order to establish
prejudice in this context, "a defendant must
demonstrate that there is a reasonable probability
that, but for counsel's deficient failure to consult
with him about an appeal, he would have timely
appealed." Id. at 1038.
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 Samuel, Samuel relied on the interpreter in
part, and answered for himself in part. Id. at 7-9.
At his change of plea hearing, Angela Ocasio, the interpreter, was
sworn to interpret for Petitioner. Change of Plea Transcript, August
26, 1999, at 2. In addition, we explained to Petitioner as follows:
THE COURT: Mr. Martinez, before accepting a guilty
plea, there are a number of questions that I will ask
you, including some about the offense itself, to
insure that this is a valid plea. If you don't
understand any of my questions or at any time wish to
consult with Mr. Schroeder, please say so, because
it's essential to a valid plea that you understand
each question before you answer. Do you understand
THE DEFENDANT: Yes.
Id. Thereafter this court conducted an extensive
colloquy with Petitioner, in which we explained, among
other things, the rights Petitioner would have if he
proceeded to trial, and that by changing his plea to
guilty, Petitioner is waiving his right to a trial.
Id. at 5-7. We also read Count I of the indictment to
Petitioner, explained what the government would have
to prove if Petitioner elected to go to trial, what
the possible maximum penalties are for the offense,
and the application of the Sentencing Guidelines.
Id. at 8-13. The prosecutor explained the plea
agreement entered into between the government and
Petitioner and Petitioner indicated that he agreed
with the prosecutor's explanation of the agreement.
Id. at 14-17. The prosecutor also set forth what the
government expected to prove against Petitioner.
Id. at 19-21. Before beginning, however, the prosecutor stated to
Petitioner as follows:
[PROSECUTOR]: What I'll do, Mr. Martinez, if you need
will try to go slow. If you need something repeated,
just stop me and ask for interpretation.
Id. at 19. The prosecutor explained that as part of
their evidence the government would introduce a tape
recording of a conversation between a government
informant and Petitioner in which the two negotiated
for the purchase of crack cocaine. Id. at 20.
Petitioner indicated that he agreed with the
prosecutor's summary of the evidence. Id. at 21. In
addition to finding that Petitioner was competent to
plead, we also found that he knew his right to a trial
and what the maximum possible penalties were for the
offenses. We therefore accepted Petitioner' guilty
plea. Id. at 22.
At no time during the change of plea hearing did the Petitioner
indicate that he did not understand what was going on, or request the
assistance of the interpreter. Moreover, a review of the transcript
demonstrates that the Petitioner in fact understood the court, the
prosecutor and his own counsel throughout the hearing. In particular, the
Petitioner demonstrated that he understood what was happening when he
explained to the court why he decided to plead guilty:
THE COURT: What made you decide to plead guilty, Mr.
THE DEFENDANT: The conversation.
THE COURT: I couldn't hear you.
THE DEFENDANT: The conversation they had because they
have the tapes.
THE COURT: The conversation with your attorney you
[PROSECUTOR]: There is a tape-recorded conversation.
THE COURT: I see, because it was on tape, you decided
it was better to plead guilty?
THE DEFENDANT: Yeah.
Id. at 19.
In addition, at two different points during the hearing the court
inquired of defense counsel regarding his communication with the
Petitioner. Shortly after the hearing began, the court asked defense
counsel "have you been able to communicate with Mr. Martinez, and I mean
by that in the sense that he understands the ideas you've expressed to
him, you've understood the ideas he's expressed to you, in spite of any
language difficulty?" Id. at 3. Defense counsel responded that he
in all of my meetings with Mr. Martinez  an
interpreter was present to alleviate any concerns I
had with respect to that.
Id. Prior to accepting the Petitioner's guilty plea,
the court asked defense counsel "over what period of
time have you consulted with Mr. Martinez? Id. at
22. In response, defense counsel stated as follows:
Since shortly after the date of his arrest I was
appointed by the court and I've met regularly with Mr.
Martinez and his interpreter.
Id. Finally, prior to sentencing a presentence
investigation report was prepared by the probation
office. Relevant to the instant petition, the
probation officer who interviewed the Petitioner
reported that Petitioner "is Spanish speaking and
displays a good grasp of English. An interpreter is
being used for all court-related matters to clarify
unfamiliar legal terms to him." PSR, at ¶ 40,
attached as Exhibit "A" to Petitioner's Motion.
Petitioner concedes that an interpreter was available to him at all of
his court appearances. Significantly, he fails to address his
demonstrated on-the-record ability to communicate in English, and fails
to explain or address why — if he could not understand what was
going on — he did not seek the assistance of the interpreters
provided for him (or otherwise inform the court that he could not
understand the proceedings). Our review of the record, as well as our
own interaction with Petitioner, demonstrates that Petitioner was able to
communicate in English with the court, his attorney, and the prosecutor;
that he demonstrated
the ability to understand and comprehend the proceedings, including
the charges filed against him; and that he knowingly and voluntarily
entered into an advantageous plea agreement resulting in a term
of imprisonment 37 months lower than the minimum guideline range.
The only argument Petitioner asserts regarding his in-court appearances
is that his responses during his plea hearing were prompted by "stage
whispers" from his counsel. There is no support for this allegation in
the record. Rather than addressing his in-court appearances, Petitioner
instead supports his ineffectiveness claim first by challenging his
counsel's representation to the court that an interpreter was present
during their meetings and second, by arguing that his constitutional
rights were violated due to the failure to provide him with
Spanish-language translations of relevant court documents. See
Petitioner's Traverse to Respondent's Answer, at 2; Petitioner's Motion,
at 2 (citing United States v. Mosquera, 816 F. Supp. 168 (E.D.N.Y.
Petitioner states that the Government "fails to produce any evidence in
support of [its] contention that the defendant was visited by his Lawyer
in the presence of an interpreter at any time other than Court
appearances." Petitioner's Traverse to Respondent's Answer, at 2.
However, the appropriate standard for evaluating Petitioner's claim of
ineffectiveness of counsel is whether counsel's performance was
objectively unreasonable. Thus, even if Petitioner's allegation that an
interpreter was not present when he met with his counsel is true, we must
then determine whether counsel's failure to ensure that an interpreter
was present amounts to ineffectiveness. In light of Petitioner's
on-the-record demonstrated ability to communicate and comprehend the
proceedings, we conclude that counsel was not ineffective. Moreover, even
if Petitioner was able to establish that defense counsel's conduct was
objectively unreasonable, he is unable to 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 259 (quoting Hill, 474 U.S. at 59).
Petitioner's reliance on Mosquera is also without merit. "The Court
Interpreters Act does not require a written translation of documents in
the case." De La Rosa v. United States, 1995 WL 251302, *2 (E.D.Pa.
1995) (citing 28 U.S.C. § 1827(d)(1)). The petitioner in De La Rosa
also relied on the Mosquera decision in support of the contention that he
was entitled to a written translation of court documents. Id. The
complex situation in Mosquera is in no way similar to the relatively
simple factual scenario in the present case. As explained by the De La
Rosa court, in Mosquera, "the court found that the single interpreter
provided to translate simultaneously for 18 Spanish-speaking defendants in
complex proceedings involving 10,000 documents and 550 transcripts could
not adequately keep each defendant apprised of what was transpiring."
Id. Therefore, the court sua sponte ordered that the indictment and
certain other documents be translated into Spanish, and the government
moved for reconsideration of that order. Mosquera, 816 F. Supp. at 170.
We do not read Mosquera as entitling every non-English speaking defendant
to written translations. See also De La Rosa, 1995 WL 251302, at *2.
Here, there were only two defendants on a two-count indictment
involving a single drug transaction.*fn1
An interpreter was provided at
each court hearing, and Petitioner was the only defendant present at his
guilty plea and sentencing hearings. The transcripts of the proceedings
demonstrate that Petitioner was able to comprehend the charges against
him. He clearly was able to understand his rights and voluntarily
entered a plea of guilty. Petitioner
never indicated that he did not understand what was happening,
nor did he call upon the interpreter to translate for him. In
this regard, we note that at his initial appearance, Petitioner
not only demonstrated his ability to communicate in English, but
also he observed the interpreter translating for his brother.
Like the petitioner in De La Rosa, the Petitioner here also
"never requested a written translation of any document." Id.
In light of the record evidence demonstrating Petitioner's ability to
comprehend, and the absence of any evidence indicating that Petitioner
was unable to understand what was happening to him, we cannot say that
defense counsel's performance was objectively unreasonable. To the
contrary, given the summary of evidence the government intended to prove
against Petitioner, it appears that Petitioner's counsel was able to
negotiate an advantageous plea agreement resulting in a sentence well
below the maximum possible. We again emphasize that the Petitioner
himself explained that he was pleading guilty because the Government had
tape recordings of the Petitioner and a confidential informant discussing
a drug transaction. "Thus, the record flatly negates defendant's
allegation that [he] lacked the requisite understanding." United States
v. Sanchez, 1987 WL 27006, *2 (E.D.N.Y. 1987). Because Petitioner is
unable to establish that his counsel's performance was deficient, his
claim of ineffectiveness must fail.
C. Failure to File An Appeal
Petitioner also alleges that he was deprived of his right to appeal.
In support of his claim Petitioner relies on the fact that no appeal was
filed, and on his assertion that his counsel never discussed an appeal
with him. On May 15, 2000, Petitioner sent a letter to his counsel
requesting a copy of his plea agreement and inquiring as to the status of
the appeal of his sentence. Letter attached as Exhibit "D" to
Petitioner's Motion. Petitioner specifically asked counsel, "Has your
office filed a "Notice of appeal" of the judgment? If not why not."
Id. Counsel responded by letter dated June 12, 2000, and stated, in
relevant part, as follows:
As I had explained to you previously, no appeal was
filed in this matter as there was no legal reason to
do so. The sentence that was imposed by the Court was
clearly within the legal range of sentences that can
be imposed, and unless there is a legitimate legal
reason to appeal a sentence, it is not done.
Letter attached as Exhibit "E" to Petitioner's
Motion. Petitioner denies that his attorney consulted
with him about an appeal. However, counsel's failure
to file an appeal following a guilty plea and sentence
is not deficient per se. See Flores-Ortega, 120
"Under the regime established by Flores-Ortega, Petitioner must
demonstrate, first that his attorney had a duty to consult with him
regarding his right to appeal, and second that he would have appealed but
for counsel's failure to perform that duty." Ryan v. United States,
97 F. Supp.2d 190, 194 (D.Mass. 2000). Counsel has a duty to consult only
where he has reason to think either that a rational defendant would want
to appeal, or that this particular Petitioner reasonably demonstrated to
counsel that he had an interest in appealing. Flores-Ortega, 120 S.Ct.
at 1036. Under the totality of circumstances here, we conclude that
Petitioner cannot show that a rational defendant would want to appeal.
Petitioner plead guilty, suggesting that he wished an end to judicial
proceedings and did not desire further litigation. Id. Petitioner faced a
maximum of 10 years to life imprisonment, but, as a result of the plea
agreement, he faced a guideline range term of 108 to 135 months, which
was further reduced as a result of his timely acceptance of
responsibility to 87 to 108 months. Upon motion by the government as a
result of Petitioner's substantial assistance, the court sentenced
Petitioner to 72
months' imprisonment. "That Petitioner pled guilty and received
the relatively lenient sentence bargained for weighs strongly
in favor against a finding that a rational defendant would wish to
appeal." Ryan, 97 F. Supp.2d at 195 (citing Flores-Ortega, 120 S.Ct. at
1036. Although not determinative, there also does not appear to be a
nonfrivolous issue for appeal. Petitioner only asserts his
ineffectiveness claim based on his contention that he did not understand
or comprehend the proceedings. As discussed above, this issue is clearly
frivolous in light of the record evidence. Given "all the information
counsel knew or should have known," we conclude that there is no basis
for finding that a rational defendant would have wanted to appeal. Id.
In addition, there is no record evidence that Petitioner reasonably
demonstrated to his counsel that he was interested in appealing.
Accordingly, because counsel had no duty to consult Petitioner, counsel
cannot be found ineffective for the failure to appeal. In addition, even
if Petitioner was able to demonstrate ineffectiveness, he cannot satisfy
the prejudice prong of Strickland, because, for the reasons explained
above, he cannot show that he otherwise would have appealed. Finally, at
the conclusion of the sentencing hearing, the court stated: "Mr.
Martinez, you have a right to appeal; you are entitled to a lawyer at
every stage of the proceedings, and if you cannot afford an attorney, one
will be provided for you without charge."
D. Access to Court Claim
Petitioner also purports to assert a violation of his First Amendment
right to meaningful access to the courts by alleging that the
institutions where he has been housed do not provide legal research
documents in his native language or legal assistance per se to
non-English speaking inmates. Petitioner's Motion, at 6. An inmate has
"no free-standing rights to a law library or legal assistance." Reynolds
v. Wagner, 128 F.3d 166, 183 (3d Cir. 1997), citing Lewis v. Casey,
518 U.S. 343, 351-55 (1996). Legal assistance and law libraries are
merely means by which an inmate gains his right of access to the court.
Id. "[T]o be able to bring a viable claim, the [inmate has] to show a
direct injury to [his] access to the courts." Id. Petitioner has failed
to point to any evidence of a direct injury to his right of access to the
courts, and thus this claim must fail. See Lewis, 518 U.S. at 351-55;
Reynolds, 128 F.3d at 183; and Williams v. LeHigh Department of
Corrections, 79 F. Supp.2d 514, 518 (E.D.Pa. 1999)
Petitioner's assertion that he was unable to understand his attorney or
comprehend the proceedings is belied by the record. Accordingly, his
claim that his counsel was ineffective must fail. Likewise, Petitioner is
unable to establish that his counsel had a duty to consult with him
regarding an appeal from his sentence imposed following a guilty plea.
Not only is Petitioner unable to establish that his counsel was
ineffective, he is unable to show that he was prejudiced such that he
would have appealed. Therefore, Petitioner's motion pursuant to
28 U.S.C. § 2255 will be denied.
AND NOW, to-wit, this 14th day of November, 2000, it is hereby
ORDERED, ADJUDGED and DECREED that Petitioner's Petition for relief
pursuant to 28 U.S.C. § 2255 (Doc. No. 48) be and hereby is DENIED.