FORTINO MALDONADO-GUILLEN, Petitioner, vs. UNITED STATES OF AMERICA, Respondent.
5:18-cv-2-FDW (5:14-cr-72-RLV-DSC-9)
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA STATESVILLE DIVISION
THIS MATTER is before the Court on Petitioner‘s Motion to Vacate, Set Aside or Correct Sentence under
I. BACKGROUND
In February 2011, Petitioner Fortino Maldonado-Guillen, a Mexican national living in North Carolina, began obtaining cocaine from a source in Virginia. (Crim. Case No. 5:14-cr-72-RLV-DSC-9, Doc. No. 309 at p. 2 & ¶ 107: PSR; Doc. No. 189 at 2: Factual Basis). Petitioner‘s nephew, David Maldonado (David), would take the cocaine from his uncle‘s residence, redistribute it, and then pay his uncle for the drugs. (Id., Doc. No. 189 at 2). According to an unindicted co-conspirator, David delivered 30-40 kilograms of cocaine to him in Greenville, South Carolina. (Id.). Petitioner and David werе both involved in a ten-kilogram cocaine transaction with another unindicted co-conspirator. (Id. at 3). Petitioner also received other distributions of cocaine. (Id. at 11, 13-14, 18). From May through July 2011, Petitioner supplied David with 60-70 kilograms of cocaine, which David then sold to Germaine Woodley, James Davis, and another customer. (Id.). David collected payment for the drugs and returned it to Petitioner. (Id. at 4).
In September 2014, one of David‘s hired drivers was stopped, and law enforcement officers searched his car. (Id. at 26). The car was carrying nine kilograms of cocaine in a secret compartment, which the officеrs did not find. (Id.). Due to concerns about surveillance, the cocaine sat in the car until the source of supply began pressuring Rosy to sell it. (Id. at 27). David went to Petitioner‘s house to discuss the situation with him. (Id. (citing GPS information and Title III intercepts)). Eventually, Petitioner drove David to the residence where the car with the concealed drugs was located, and David drove the car to Petitioner‘s home. (Id. at 28 (citing GPS evidence and Title III intercepts)). Once there, David removed the drugs from the secret compartment and gave three kilograms of the cocaine to Petitioner. (Id.).
On October 14, 2014, Petitioner met David at a gas station in Mooresvillе, North Carolina, to give him the proceeds from the sale of the three kilograms of cocaine. (Id. at 30). Petitioner had hidden the $85,000 in proceeds in a bucket of joint compound. (Id. (citing a telephone intercept). Petitioner later drove David to retrieve a vehicle in which David could hide the drug proceeds. (Id. at 33). After David returned to his home with the vehicle, he discovered that it had a tracking device on it, so he hid the money on his property and drove the car to a
In November 2014, a grand jury indicted Petitioner and 12 other co-defendants. (Id., Doc. No. 59: Indictment). The grand jury charged Petitioner with conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of
In July 2015, Petitioner agreed to plead guilty to Counts One and Two. (Id., Doc. No. 188 at ¶ 1: Plea Agrmt.). As part of the plea agreement, Petitioner stipulated that he had read and understood the factual basis and that it could be used without objection to determine his sentence. (Id. at ¶ 13). The factual basis stated that 450 kilograms of cocaine, which included both cocaine and the equivalent quantity from cocaine proceeds, was reasonably foreseeable to him. (Id., Doc. No. 189 at 35: Factual Basis). Petitioner agreed that he understood that Count One had a minimum term of 10 years of imprisonment and a maximum term of life and that Count Two carried a maximum term of 20 years of imprisonment. (Id., Doc. No. 188 at ¶ 3). The parties agreed to recommend thаt the amount of cocaine involved in the offense was 450 kilograms, that Petitioner‘s guilty plea was timely made, that either party could seek a departure or variance from the guidelines range, and that the career offender enhancement might apply. (Id. at ¶ 6).
At the plea hearing, the magistrate judge explained the charges and applicable penalties to Petitioner. (Id., Doc. No. 425 at 4-7: Plea Tr.). Petitioner testified that he understood. (Id. at 7). Petitioner affirmed that he had been over the plea agreement with his attorney and understood and agreed to its terms and that he was guilty of the charges against him. (Id. at 11, 14). Pеtitioner also testified that he had read, understood, and agreed with the terms of the factual basis. (Id. at 15). The magistrate judge specifically questioned Petitioner about the immigration consequences of his plea, inquiring whether he understood that his guilty plea “could result in deportation from the country?” (Id. at 7-8). Petitioner answered, “Yes.” (Id. at 8). Petitioner agreed that he understood that he could not withdraw his guilty plea if the sentence imposed was more severe than he expected. (Id. at 9). He testified that no one had threatened, intimidated, or forced him to plead guilty, and that no outside promises of leniency or a light sentence had been made to inducе his guilty plea. (Id. at 15-16). Finally, Petitioner stated that he had had sufficient time to discuss any possible defenses with his attorney, that he was satisfied with her services, and that he “thank[ed] her very much for her help.” (Id. at 16). The magistrate judge found that Petitioner‘s guilty plea was made knowingly and voluntarily and accepted it. (Id. at 18).
In early 2016, the probation officer issued a presentence report (PSR), recommending that Petitioner‘s base offense level was 40 based on the quantity of drugs involved in the offense, as well as his maintaining a premises for the purpose of manufacturing or distributing a controlled substance, and that he should receive a two-level enhancement for his money-laundering conviction. (Id., Doc. No. 297 at ¶¶ 80-81). Allowing a three-level reduction for acceptance of responsibility, his total offense level was 39. (Id. at ¶¶ 88-90). The probation officer determined that Petitioner‘s criminal history category was II and that his advisory guidelines range was 292 to 365 months of imprisonment. (Id. at ¶¶ 100-02, 120).
Petitioner objected to the PSR, arguing that the two-level enhancement for maintaining a premises should not apply, that his criminal history computation substantially overstated the seriousness of his criminal history and the likelihood that he would commit additional crimes, and that he should be given the benefit of the safety valve. (Id., Doc. No. 307: Objection to PSR).
In February 2016, Thorsen requested a hearing on the status of counsel and the status of Petitioner‘s guilty plea. (Id., Doc. No. 322). Counsel stated that Petitioner was claiming that he had been “tricked” into pleading guilty and was disavowing the factual basis. (Id. at 2). However, Petitioner had not asked counsel to move to withdraw his guilty plea. (Id.). This
In March 2016, Petitioner filed a motion to withdraw his guilty plea. (Id., Doc. No. 331). Thorsen indicated that he had reviewed the discovery and had advised Petitioner that if he proceeded to trial, he would be convicted. (Id. at 2). Petitioner indicated that his prior attorneys also had advised him of this. (Id.). Petitioner asserted that Everson told him that he would get a 6- or 8-year sentence if he pleaded guilty, but that if he went to trial, his sentence would be at least 30 years. (Id. at 2; Doc. No. 333-1 at 1). Petitioner stated that he was not guilty of the crimes to which he had pleaded guilty, that Everson had told him how to answer the questions at the plea hearing, that some of his answers at the hearing were not true, that he had not seen or discussed the factual basis before his plea hearing, and that if he had known that his sentence would be so long, he would have gone to trial. (Id., Doc. No. 331 at 2; Doc. No. 331-1 at 1-2).
In April 2016, this Court held a sentencing hearing. (Id., Doc. No. 426). At this hearing, Petitioner withdrew his motion to withdraw his plea. (Id. at 3-4). Petitioner told this Court that he understood the charges against him, that he was “fully satisfied” with the services of his attorney, that his guilty plea was made freely and voluntarily, and that he had committed the offenses with which he was charged. (Id. at 2-3). This Court affirmed the acceptance of the guilty plea and found Petitioner guilty of the charges. (Id. at 3). Petitioner argued that he hаd only stored cocaine at his house for a brief time during the conspiracy, when his nephew was
Petitioner argued that his main employment was in construction and that he should not be found responsible for 450 kilograms of cocaine. (Id. at 12). He asserted that in Mexico four of his brothers had been murdered for not participating in the drug trade and that he felt pressurеd by a gang to participate in the conspiracy. (Id.). Counsel noted that Petitioner was not going to be a future risk “because he expects to be deported after his sentence is served.” (Id. at 12-13). He sought a downward variance, arguing that he was 47 years old and would be too old to likely participate in a similar venture after he was released. (Id. at 13). The Court granted a continuance to allow Petitioner to confer with his counsel and the Government to determine whether he wanted to fully debrief to allow the possibility of obtaining a reduction under the safety valve. (Id. at 16-18).
At the continuation of the sentencing hearing two months lаter, the parties informed the Court that Petitioner had not agreed to debrief the Government. (Id., Doc. No. 427 at 7-8). Petitioner indicated he was unhappy with his attorney because he had not been able to spend as much time going over the evidence as Petitioner would have liked, and he had told Petitioner that he would receive only a 6- to 8-year sentence if he pleaded guilty. (Id. at 3-5). Thorsen stated that he had reviewed the evidence with Petitioner and discussed his options on seven to eight occasions. (Id. at 6). Petitioner admitted that he was “not pretending to say that I‘m innocent.” (Id. at 4). This Court found that Petitioner had not stated any bаsis for withdrawing his plea or obtaining new counsel and denied any request for this relief. (Id. at 19).
Petitioner appealed. United States v. Maldonado-Guillen, 683 F. App‘x 198 (4th Cir. 2017). His counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Petitioner filed a pro se supplemental brief, asserting that this Court should have substituted counsel at sentencing and should have permitted him to withdraw his guilty plea. Maldonado-Guillen, 683 F. App‘x at 199. The Fourth Circuit held that this Court had substаntially complied with
Petitioner timely filed the present motion to vacate, аrguing that he received ineffective assistance of counsel during the plea proceedings and at sentencing. (Civ. Doc. No. 1 at 4-6). He seeks to set aside his guilty plea and to proceed to trial. (Id. at 12). The Government filed its response on February 23, 2018. (Doc. No. 3).
II. STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the arguments prеsented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
III. DISCUSSION
To prevail on a theory of ineffective assistance of counsel, Petitioner must establish that his attorney‘s performance fell below an objective standard of reasonableness, judged “from counsel‘s perspective at the time.” Strickland v. Washington, 466 U.S. 668, 689 (1984). He must also establish prejudice in the form of “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Because Petitioner pleaded guilty, to establish prejudice affecting his conviction, he must demonstrate a “reasonable probability that, but for counsel‘s errors, he would not have pleaded
In evaluating claims under Section 2255, statements made by a defendant under oath at a plea hearing carry a “strong presumption of verity” and present a “formidable barrier” to subsequent collateral attacks. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). As the Fourth Circuit has made clear, “courts must be able to rely on the defendant‘s statements made under oath during a properly conducted Rule 11 plea colloquy,” and Section 2255 claims that contradict a petitioner‘s plea colloquy are deemed “patently frivolоus or false,” except in extraordinary circumstances. United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005); see Burket v. Angelone, 208 F.3d 172, 191 (4th Cir. 2000) (holding a defendant is bound by his representations during the plea colloquy “[a]bsent clear and convincing evidence to the contrary“).
A. Petitioner‘s claim of ineffective assistance with respect to his guilty plea.
Petitioner first argues that counsel‘s2 advice prejudiced his decision to accept the guilty plea. (Civ. Doc. No. 1-1 at 6). He asserts that he wanted to proceed to trial, but that counsel “refused because he ‘wasn‘t being paid enough’ and the Court had limited his time and resources to do so.” (Civ. Doc. No. 1 at 5). He also contends that counsel did not advise him that he would be subject to automatic deportation if he pleaded guilty,3 but, rather, told him that if he pleaded guilty in a timely manner he would still be able to contest removal from the United
Although Petitioner contends that he wanted to proceed to trial, this contеntion is belied by his multiple representations to the contrary. Petitioner admitted in signing the plea agreement and at the plea hearing that he wanted to plead guilty and to waive his right to a trial. At sentencing, he again admitted that he had committed the offenses with which he was charged and that he was not claiming that he was innocent. (Crim. Case No. 5:14-cr-72-RLV-DSC-9, Doc. Nos. 426 at 2-3; Doc. No. 427 at 4). Moreover, Petitioner withdrew the motion to withdraw his guilty plea, thereby reaffirming his decision not to proceed to trial. See (Id., Doc. No. 426 at 3-4). His contention that counsel did not want to proceed to trial because of limited resources from the Court is misplaced because he had retained counsel when he pleaded guilty, and he admitted at the plea hearing that he was satisfied with his attorney‘s services and even thanked her for her help. (Id., Doc. No. 425 at 16: Plea Tr.).
Additionally, Petitioner has presented no contemporaneous evidence that any allegedly deficient advice regarding the deportation consequences of his guilty plea affected his decision to plead guilty. This Court advised Petitioner at the plea hearing that his plea could result in deportation, and his counsel stated several times during the district court proceedings that Petitioner would be deported. Fоr example, during the first sentencing hearing, Thorsen argued that Petitioner would not pose a future threat “because he expects to be deported after his sentence is served.” (Id., Doc. No. 426 at 12-13). This indicates that counsel had advised
Petitioner also cannot show prejudice because it would not have beеn objectively reasonable for him to proceed to trial given the extensive evidence against him, which included not just evidence from cooperating co-defendants, but also evidence from surveillance and wiretaps. See See Fugit, 703 F.3d at 260. This evidence was ample enough that both Thorsen and Petitioner‘s prior counsel advised him that he would be convicted if he proceeded to trial. See (Crim. Case No. 5:14-cr-72-RLV-DSC-9, Doc. No. 331 at 2). Moreover, by pleading guilty, Petitioner received credit for acceptance of responsibility and was able to argue effectively for a lower sentence. See Santiago, 632 F. App‘x at 774 (holding that “when the Government‘s case is strong, a defendant faces a nearly insurmountable obstacle to showing that it would have been rational to go to trial“).
Because Petitioner‘s claims of ineffective assistance with respect to his guilty plea contradict his sworn testimony at the plea hearing, as well as his decision to withdraw the motion
B. Petitioner‘s claim that his attorney failed to properly investigate his case.
“When a defendant pleads guilty, he waives all nonjurisdictional defects in the proceedings conducted prior to еntry of the plea.” United States v. Moussaoui, 591 F.3d 263, 279 (4th Cir. 2010). Thus, a knowing and voluntary guilty plea “forecloses federal collateral review” of prior constitutional deprivations, including allegations of ineffective assistance of counsel that do not affect the voluntariness of the plea. See Fields v. Att‘y Gen. of Md., 956 F.2d 1290, 1294-96 (4th Cir. 1992); accord United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997); Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). A guilty plea is valid when it “represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Burket v. Angelone, 208 F.3d 172, 190 (4th Cir. 2000) (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)).
As shown above, and as determined by the Fourth Circuit, Petitioner knowingly and voluntarily pleaded guilty. His assertion that counsel was deficient for not discovering that the co-defendants were lying does not establish that he did not know or understand the consequences of pleading guilty. Accordingly, he has waived his challenge to his attorney‘s alleged failure to properly investigate the case. See Fields, 956 F.2d at 1294-96.
Even if Petitioner had not waived his claim of inadequate investigation, this claim is without merit. To support an ineffective assistance claim based on the failure to investigate, a petitioner must present specific information to show what favorable evidence the investigation would have produced. See Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996). If there is “no reasonable probability that a possible defense would have succeeded at trial,” counsel‘s
Petitioner contends that his attorney claimed that he did not have the resources to properly investigate the case and was not being paid enough because the Court had appointed him. (Civ. Doc. No. 1-1 at 11). He asserts that an adequate investigation would have shown that “all statements made by co-defendants during their debriefings were false,” that Petitioner‘s involvement in the offense was limited to transporting $85,000 in cash; that he was a construction worker and lived within his means; that while in the United States he had never knowingly possessed, transported, or sold drugs; and that his co-defendants received favorable treatment in exchange for their “false” statements. (Id.). He argues that counsel should have objected to the unspecified false statements or moved to suppress them. (Id. at 12). Petitioner also contends that counsel told the Government that Petitioner‘s home served as a stash house for money and drugs, even though this was not true. (Id.).
Petitioner has not shown deficient performance. When Petitioner pleaded guilty, retained counsel was representing him. Thus, his assertion that counsel did not have enough resources to investigate because he was court-appointed is without merit. Additionally, Petitioner testified at the plea hearing that he had had an adequate opportunity to discuss any possible defenses with his attorney. (Id., Doc. No. 425 at 16). Petitioner also has not presented any specific evidence to show what he alleges additional investigation would have revealed, relying instead only on unsupported conclusory allegations. Such allegations are insufficient to establish deficient performance. See United States v. Dyess, 730 F.3d 354, 359-60 (4th Cir. 2013) (holding it was proper to dismiss Section 2255 claims based on vague and conclusory allegations). Additionally, Petitioner has not shown that, before his plea, his cоunsel informed the Government that
Petitioner also has not established prejudice. Petitioner does not explain how he came by the $85,000 in cash, nor does he identify specifically who made false statements, what the false statements were, what evidence shows that the statements were false, or how this shows that he was not guilty of the offenses to which he admitted guilt. Both Thorsen and Petitioner‘s prior counsel advised him that he would be convicted if hе proceeded to trial. See (Crim. Case No. 5:14-cr-72-RLV-DSC-9, Doc. No. 331 at 2). Additionally, although Petitioner asserted in his motion to withdraw that he was not guilty of the offenses, he withdrew this motion at the sentencing hearing and again affirmed to this Court that he understood the charges against him and that he had committed those offenses. (Id., Doc. No. 426 at 2-3). Finally, given the number of people involved in the conspiracy, as well as the GPS, wiretap, and other surveillance evidence, it would not have been objectively reasonable for Petitioner to proceed to trial based on a defense that everybody else was lying. See Fugit, 703 F.3d at 260. Accordingly, this claim of ineffective assistance is denied.
C. Petitioner‘s claim of ineffective assistance of counsel at sentencing.
To establish ineffective assistance of counsel at sentencing, a petitioner must show that but for counsel‘s deficient performance, there is a reasonable probability that he would have received a lower sentence. See Royal v. Trombone, 188 F.3d 239, 249 (4th Cir. 1999). Petitioner argues that his attorney provided ineffective assistance at sentencing because he did
Petitioner‘s contention that he stated that he understood the PSR based on a misrepresentation by counsel as to immigration consequences is misplaced. With respect to deportation, the PSR stated only that “[i]f the defendant is not a citizen of the United States, a guilty plea or conviction may result in deportation or removal from the United States.” (Crim. Case No. 5:14-cr-72-RLV-DSC-9, Doc. No. 309 at ¶ 5). Petitioner had previously been advised of the same consequences during the plea proceedings. Therefore, even if counsel had made the alleged statement, it would not have impacted Petitioner‘s understanding of the PSR.
Counsel was also not deficient for not arguing fоr a sentence of less than six months, where the mandatory minimum sentence was ten years. Thorsen did argue for application of the safety-valve, which would have allowed Petitioner to be sentenced below the mandatory minimum. However, Petitioner refused to cooperate with the Government, which was a necessary pre-requisite to application of the safety-valve. See
D. Petitioner‘s Claim of Cumulative Error.
Finally, Petitioner argues that the combined effects of counsel‘s errors deprived him of effective representation and resulted in a miscarriage of justice. (Civ. Doc. No. 1-1 at 13). This argument is baseless. Petitioner has not shown that any of his claims of ineffective assistance have merit, and, even if he could, claims of ineffective assistance of counsel must be evaluated individually, not cumulatively. Fisher v. Angelone, 163 F.3d 835, 852-53 (4th Cir. 1998).
In sum, Petitioner fails to show ineffective assistance of counsel and his motion to vacate will, therefore, be denied and dismissed.
IV. CONCLUSION
For the foregoing reasons, the Court denies and dismisses Petitioner‘s Section 2255 petition.
IT IS, THEREFORE, ORDERED that:
Petitioner‘s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 , (Doc. No. 1), is DENIED and DISMISSED.- IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 and Section 2255 Cases, this Court declines to issue a certificate of appealability. See
28 U.S.C. § 2253(c)(2) ; Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would find the district court‘s assessment of the constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when relief is denied on procedural grounds, a petitioner must establish both that the dispositive procedural ruling is debatable and that the petition states a debatable claim of the denial of a constitutional right).
Signed: March 5, 2018
Frank D. Whitney
Chief United States District Judge