United States District Court, E.D. Pennsylvania
For U.S. Attorneys (5:09cr281): MARY A. FUTCHER, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE U.S. COURTHOUSE & FEDERAL BUILDING, ALLENTOWN, PA USA; MARIA M. CARRILLO, U.S. ATTORNEY'S OFFICE, PHILA, PA USA.
Hyman Garcia, Petitioner (2:12cv5046), Pro se.
CYNTHIA M. RUFE, J.
Before the Court is Defendant Hyman Garcia's Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255, and the Government's Motion to Dismiss in Part and Deny in Part Defendant's Petition, to which Garcia did not file a response. For the reasons that follow, Garcia's Motion will be denied and the Government's Motion will be granted.
I. Factual and Procedural Background
On June 10, 2011, Garcia pled guilty to three counts of distribution of crack cocaine, and possession of a firearm by a convicted felon, pursuant to a plea agreement made under Fed. R. Crim. P. 11(c)(1)(C). He had made three sales of crack cocaine to a confidential informant working with the Allentown police department, in controlled transactions. After these three sales, Detective Diehl obtained a search warrant for Garcia's residence, where police found a loaded firearm and products related to the drug trade. Because Garcia was a convicted felon at the time, he was prohibited from possessing that firearm. The plea agreement provided for dismissal of one count which carried a 60-month mandatory sentence to be imposed consecutively to other sentences, and dismissal of an information which would have required a recidivist enhancement under 21 U.S.C. § 841(b) be imposed. The government and Garcia agreed to seek the imposition of a sentence of 57 months imprisonment, a sentence well below the bottom of the applicable sentencing guidelines range (151 to 188 months). When Garcia was sentenced on September 12, 2011, the Court accepted the terms of the Rule 11(c)(1)(C) plea agreement, and imposed the agreed-upon sentence of 57 months imprisonment.
As part of his guilty plea, Garcia waived his appellate rights, including his right to collateral review. Garcia did not appeal his conviction, but instead filed this request for collateral review. As explained to him at the plea colloquy, the waiver he signed strictly limits the types of claims he may bring in his § 2255 motion.
The claims he raises in his petition are: 1) counsel was ineffective for advising him to plead guilty and for failing to properly advise him of the appellate rights he would waive by pleading guilty; and 2) counsel did not effectively cross-examine the detective at the hearing on the motion to suppress and failed to request a Franks hearing despite evidence that the detective was lying. The Government acknowledges that the first claim is cognizable despite the waiver, but asks the Court to deny the claim on the merits. The Government filed a Motion to Dismiss the second claim, arguing that it is barred by the waiver provisions in the plea agreement.
A. Ineffective Assistance with Regard to Appellate Waiver in the Guilty Plea Agreement
The Sixth Amendment guarantees effective assistance of counsel. To state a claim for ineffective assistance of counsel, " the defendant must show that counsel's performance was deficient, " meaning " that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the attorney's deficient performance prejudiced the defense." 
Garcia argues that his counsel were ineffective, in that they did not adequately explain what constitutional rights he was waiving by agreeing to the plea agreement, although he specifically asked counsel to explain the phrase " this waiver is not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived." Counsel indicated that it meant he was not waiving his right to appeal constitutional claims, which Garcia says he interpreted to include his fourth and sixth amendment rights. Thus, Garcia argues, he misunderstood the appellate waiver to which he was agreeing.
At the plea agreement hearing, the Court reiterated the precise waiver language of the plea agreement, and asked Garcia if he understood. Garcia indicated that he did, and that he had no questions for his counsel. Without probing further, the Court concluded that defendant's waiver was knowing and voluntary, as required by United States v. Mabry .
Prior to sentencing, Garcia sent a letter to the Court, pro se, although he was represented by counsel, asking to withdraw his guilty plea. His counsel did not adopt this or file a counselled motion to withdraw the plea. The Court addressed Garcia's letter at sentencing. The Government told the Court: " [Garcia] is essentially asking for a better deal. He is also asking that Your Honor reconsider your denial of his motion to suppress and his request for a Franks hearing. He wants to preserve those arguments on appeal, but he has already pled pursuant to a plea ...