United States District Court, E.D. Pennsylvania
C. Darnell Jones, II J.
On February 17, 2015, Jose Torres (“Petitioner”) filed a pro se Motion to Vacate his Sentence pursuant to 28 U.S.C. § 2255 (“Petition”). (Dkt No. 38 [hereinafter Pet.]) Petitioner raised four grounds for relief in his Petition: (1) the appellate waiver in his Plea Agreement was not taken knowingly and voluntary, (Pet. at 4, 13), (2) the Indictment was defective because it did not charge an offense against the United States, (Pet. at 5, 14-17), (3) Petitioner’s counsel was ineffective during plea negotiations, (Pet. at 7, 17-19), and (4) Petitioner’s counsel was ineffective in failing to challenge the Indictment. (Pet. at 20-21.)
On March 19, 2015, the Government filed a Response. (Dkt No. 41 [hereinafter Resp.]) On April 13, 2015, Petitioner filed a Reply. (Dkt No. 42 [hereinafter Rep.])
Upon consideration of the pro se Petition and all attendant responses and replies, the original Indictment, (Dkt No. 1 [hereinafter Indictment]), the transcript of the plea hearing, (Dkt No. 25 [hereinafter Pl. Trans.]), the Government’s plea memorandum, (Dkt No. 19 [hereinafter Pl. Mem.]), the pre-sentencing report, the judgment of this Court issued September 24, 2012, (Dkt No. 27 [hereinafter Judgment]), Petitioner’s pro se appeal of the Judgment, (Dkt No. 28 [hereinafter Appeal of Judgment]), and the Third Circuit Court’s Order affirming the enforcement of the appellate rights waiver of the Plea Agreement, (Dkt No. 35 [hereinafter Circuit Court Order]), this Court holds that the appellate waiver in the Plea Agreement is enforceable. Petitioner’s Petition is DISMISSED.
I. Standard of Review
A § 2255 Motion to Vacate, Set Aside, and/or Correct Sentence may be granted on the grounds that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255.
A district court must grant an evidentiary hearing when the records in the case are “inconclusive on the issue of whether movant is entitled to relief.” United States v. McCoy, 410 F.3d 124, 131 (3d Cir. 2005) (citing Solis v. U.S., 252 F.3d 289, 294-95 (3d Cir. 2001)). A § 2255 motion “can be dismissed without a hearing [only] if (1) the petitioner’s allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Id. (quoting Engelen v. U.S., 68 F.3d 238, 240 (8th Cir. 1995)).
“The standard governing…requests [for evidentiary hearings] establishes a reasonably low threshold for habeas petitioners to meet.” Id. (quoting Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001)). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989). A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
A Defendant’s waiver of appellate rights or rights to collaterally attack a conviction or sentence shall be enforced so long as it was entered knowingly and voluntarily and enforcement of the waiver would not create a miscarriage of justice. United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001). The Court will analyze whether (1) Petitioner entered his Plea Agreement knowingly and voluntarily, (2) whether one of the specific exceptions set forth in the Plea Agreement applies, and (3) whether the enforcement of the waiver would create a miscarriage of justice. United States v. Mabry, 536 F.3d 231, 244 (3d Cir. 2008).
On March 13, 2012, Petitioner pled guilty to conspiracy to distribute five (5) kilograms or more of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. 841(a)(1), (b)(1)(A). (Indictment at 1; Plea at 12.) At his plea hearing, after Petitioner was placed under oath, the Court explained to Petitioner that he could ask questions and confer with his lawyer throughout the Plea Hearing. (Pl. Trans. 4:18-5:2.) Petitioner testified that he was using the services of a court translator to translate the proceedings from the English language to the Spanish language. (Pl. Trans. 5:24-6:2; 9:6-9.) The Court confirmed that Petitioner understood everything the translator was saying to him. (Pl. Trans. 5:24-6:2.)
Even though Petitioner admitted to a former drug and alcohol problem, and to taking prescription medication for a psychiatric condition, Petitioner stated that he was able to fully understand what was taking place at the hearing. (Pl. Trans. 6:12-8:11.) Petitioner stated that his attorneys had gone over all the charges in the Indictment with him, had explained his trial rights and defenses, and that he was satisfied with his representation. (Pl. Trans. 9:13-21.)
Petitioner agreed that he had signed and entered into a Plea Agreement voluntarily and of his own free will. (Pl. Trans. 10:4-11:4, 13:16-23, 28:9-14.) The Court then explained the maximum and minimum penalties for the charges against Petitioner. (Pl. Trans. 16:19-17:10; 17:23-20:18.) The Court recited a litany of the various Constitutional rights that Petitioner was waiving as a result of pleading guilty. (Pl. Trans. 21:19-23:24.) The Court’s colloquy included a thorough explanation about Petitioner’s waiver of his appellate rights due to his Plea Agreement. (Pl. Trans. 23:25-25:5; Pl. Mem. ¶¶ 1, 8.)
After an explanation of each and every aspect of the Petitioner’s Plea Agreement, Petitioner pled guilty for one count of conspiracy to distribute 5 kilograms or mores of cocaine based in violation of 21 U.S.C. § 846. (Pl. Trans. 29:19-30:19.)
On September 24, 2012, the Court sentenced Petitioner to one hundred eighty-eight (188) months incarceration and five (5) years of supervised release. (Judgment at 2-3.) On October 2, 2012, Petitioner filed a pro se appeal of the Judgment to the Third Circuit. (Appeal of Judgment.) The Government moved to have the appellate rights waiver of the Plea Agreement enforced and the Third Circuit granted the motion. (Circuit Court Order.) On October 3, 2015, Petitioner filed the Petition in accordance with 28 U.S.C. § 2255. (Pet.)
A. Petitioner entered his Plea Agreement knowingly and voluntarily.
The Court finds that Petitioner knowingly and voluntarily entered into the Plea Agreement on March 13, 2012. In doing so he agreed to all terms of the Plea Agreement, including the waiver of his appellate rights.
“A criminal Defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution.” United States v. Mezzanatto, 513 U.S. 196, 201 (1995). Similarly, a Defendant may knowingly and voluntarily waive his statutory rights, including the right to appeal. Khattak, 273 F.3d at 561 (citing United States v. Teeter, 257 F.3d 14, 21 (1st Cir. 2001)); see also Jones v. Barnes, 463 U.S. 745, 751 (1983) (“The accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.”).
“In determining if a waiver of appeal was entered into knowingly and voluntarily, ” the actions of the Judge who presided over the case are “critical.” Khattak, 273 F.3d at 563. It is necessary to look at the record of the proceedings, including the language of the Plea Agreement itself and how the Plea colloquy was conducted. Mabry, 536 F.3d at 237-38 (citing United States v. Gwinnett, 483 F.3d 200, 204-05 (3d Cir. 2007)).
First, the Plea Agreement extensively outlined Petitioner’s appellate rights waiver:
In exchange for the undertaking made by the Government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant’s conviction, sentence or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. §1291, 28 U.S.C. § 2255, or any other provision of law. This waiver is not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived.
Notwithstanding the waiver provision above, if the Government appeals from the sentence, then the defendant may file a direct appeal of his sentence.
If the Government does not appeal, then notwithstanding the waiver provision set forth in this paragraph, the defendant may file a direct appeal but may raise only claims that:
(1) The defendant’s sentence on any count of conviction exceeds the statutory maximum for that count as set forth in paragraph 3 above;
(2) The sentencing judge erroneously departed upward pursuant to the Sentencing Guidelines; and/or
(3) The sentencing judge, exercising the Court’s discretion pursuant to United States v. Booker, 543 U.S. 220 (2005), imposed an unreasonable sentence above the final Sentencing Guideline range determined by the Court.
If defendant does appeal pursuant to this paragraph, no issue may be presented by the defendant on appeal other than those described in this paragraph.
(Plea at 10 ¶ 8.)
Second, during the Plea Hearing, Petitioner repeatedly affirmed that he was voluntarily and knowingly entering into the Plea Agreement. The Court began the Hearing by telling Petitioner that Petitioner would be afforded any time during the Hearing to ask questions and confer with counsel. (Pl. Trans. 4:18-5:2.) The Court asked numerous times whether the Petitioner was taking the Plea Agreement of his own free will and not due to force, threat of force or coercion:
[THE COURT]: Did you sign the Plea Agreement?
[MR. TORRES]: Yes, Sir, I did.
[THE COURT]: And you did so voluntarily?
[MR. TORRES]: Yes, Sir.
[THE COURT]: And you did so of your own free will?
[MR. TORRES]: ...