Defendant pleaded guilty, pursuant to a plea agreement, on May 21, 2004, to conspiracy to manufacture and to distribute more than 500 grams of methamphetamine. He was sentenced on August 19, 2004, to 151 months of imprisonment to be followed by five years of supervised release, a $100 special assessment, and restitution of $5,578.78.*fn1
On August 30, 2004, defendant filed a pro se notice of appeal. His counsel argued on appeal that this Court erred in enhancing the sentence based on the uncharged fact that defendant possessed a weapon in connection with the drug conspiracy. Defendant, filed a pro se Anders brief, arguing that his attorney coerced him into pleading guilty and did not properly defend him.
By an opinion filed on July 7, 2005,*fn2 the Eighth Circuit Court of Appeals rejected counsel's argument finding that the firearm enhancement was based solely on facts to which defendant stipulated. The appellate court also rejected defendant's pro se arguments finding that defendant admitted the factual basis for his offense during thorough questioning and affirmed he was pleading guilty voluntarily. The mandate was filed in this Court on August 1, 2005.
On April 4, 2006, defendant filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 as well as a supporting brief. As grounds, he alleges that his plea of guilty was not "knowing and voluntary," that he received ineffective assistance of counsel during the pre-plea proceedings including negotiation of the plea, and that his conviction and sentence were based on materially false information.
Defendant contends that he reads very poorly and as no one read the plea agreement to him or explained it to him prior to his signing it, the agreement was not "knowing;" that his counsel simply told defendant to sign the agreement and he would get 42-months; that his counsel did not provide a copy of the agreement to him or his family until four months after he was sentenced foreclosing any chance to withdraw his plea; and that counsel told defendant, his wife, father and mother that defendant would be released in 42 months, if he pleaded guilty, based on counsel's prediction of a 72-month sentence, less good conduct and drug treatment credit and 6-months home detention compared to a likely sentence of 25 or 40 years to life if convicted at trial without adding that the prediction was contingent of defendant providing substantial assistance of the government. He continues that he intended to challenge his guilt at trial although his counsel failed to investigate valid defenses and gave erroneous advice about what would constitute guilt of distribution in the case and his counsel did not inform defendant of the mandatory minimum sentence of 120-months which could only be overcome by a substantial assistance departure. Defendant asserts that his statements at his change of pleas hearing were not explicit admissions of his guilt and that neither the government, his counsel or himself described what conduct of his constituted conspiracy or distribution of methamphetamine as his counsel used a passive voice and evasive statement.
He alleges that he received ineffective assistance of counsel as he was not involved in trafficking of methamphetamine and the only evidence of his alleged involvement was a statement by DeLayne Desjardins who gave conflicting stories of his involvement and received only 77 months as the admitted manager of the operation versus his 151-month sentence despite being a minor participant. Defendant continues that his counsel gave grossly erroneous advice regarding his sentence exposure at trial; that his counsel knew he was illiterate when he presented the plea agreement at a time when it could not be read to him; that his counsel failed to investigate valid defenses; that his counsel failed to interview Desjardins or interview other witnesses; that his counsel failed to determine if the firearm allegedly traded by defendant had been dusted for defendant's fingerprints or do a records search; and that his counsel failed to object to the manner in which the drug quantity was calculated.
Finally, defendant contends that his conviction and sentence were based on false information. The government filed a response on May 8th. It points out that the defendant engaged in an appropriate colloquy discussing the seriousness of the plea he was making and whether or not it was voluntary and the Court's finding that the plea was voluntary and defendant understood the ramifications was later evaluated and affirmed by the Eighth Circuit. The government continues that while he might be accurate in depicting his difficulty in understanding the written pleas agreement, that does not render the plea defective if the Court is satisfied that his plea was voluntary after an oral colloquy.
Turning to the ineffective assistance of counsel claim, the government counters that defendant does not and cannot demonstrate that his counsel's actions fell below the reasonable, objective standard and that he has not satisfied that there is a reasonable probability that he would not have pleaded guilty but for his counsel's alleged unprofessional errors as an incorrect estimate of the offense severity rating standing alone does not constitute ineffective assistance of counsel.
As to the final claim of false information, the government states that the purpose of the oral colloquy is to prevent that exact type of miscarriage of justice and he had ample opportunity to disclaim his guilt at the time of the entry of his plea.
On June 19th, defendant filed a reply. He addresses the government's argument that the appellate court has already ruled that his guilty plea was voluntary by asserting that ruling made no finding on the "knowingness" of his plea -- which is his main contention -- and kept open the issue of ineffective assistance of counsel. Defendant states that he does not dispute that the Court fulfilled its Rule 11(b)(2) obligations regarding the voluntariness of the plea, but that it is still vulnerable to collateral attack. He asserts that the plea colloquy was defective by not explicitly stating for the record the defendant's knowledge of what specific conduct of his constituted the elements of the crime to which he was pleading guilty and the government did not argue in its response that the factual basis for his conviction was properly stated in court or that the Court's inquiry into the factual basis was sufficient. Defendant continues that there is no record here that the plea agreement was read to him and, unless he was advised of all of the terms of the plea agreement, his plea cannot be considered "knowing."
He argues that his intention to go to trial can be proven by testimony from his family and former counsel as well as letters to and from his former counsel and that his allegation alone is sufficient at this stage of the proceedings. Continuing, he asserts the gross miscalculation of the sentencing ranges and the misstatement of defenadnt's culpability for merely being present when the psuedoephedrine was delivered and his counsel's failure to investigate reasonable defenses as supporting his ineffective assistance of counsel claim
To the government's argument that he had the opportunity at his plea colloquy to disclaim his guilt, defendant states that he still possessed only the erroneous information given by this counsel, that he only elected to seek to vacate his plea after learning more about the law and facts, and that he pled guilt not because he was, but because of what his counsel had told him made it a "Hobson's choice" so he pled guilt to a charge that he was innocent of to avoid a longer sentence. He maintains that he has cited specific examples of false information that the Court relied upon in finding facts at sentencing and that an evidentiary hearing is warranted.
The Eighth Circuit's opinion in defendant's appeal in United States v. Durnal, 138 Fed.Appx. 867, *868, 2005 WL 1576695, **1 (8th Cir. 2005), follows:
Richard Durnal (Durnal) appeals the judgment the district court entered after he pled guilty to conspiring to manufacture and distribute more than 500 grams of a methamphetamine mixture, in violation of 21 U.S.C. § 846. His counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing the court erred in enhancing Durnal's sentence based on the uncharged fact he possessed a weapon in connection with the drug conspiracy. Durnal has filed a pro se supplemental brief arguing his attorney coerced him into pleading guilty and did not properly defend him; and he seeks appointment of new counsel.
Counsel's argument fails. The firearm enhancement was based solely on facts to which Durnal stipulated, resulting in no Sixth Amendment violation. The district court applied the Guidelines as advisory, rather than as mandatory, and the record reflects the district court considered the factors of 18 U.S.C. § 3553(a). We conclude the sentence was not unreasonable. See United States v. Booker, --- U.S. ----, ----, ---- - ----, 125 S.Ct. 738, 756, 764-67, 160 L.Ed.2d 621 (2005).
The pro se arguments also fail. During thorough questioning at the change-of-plea hearing, Durnal admitted the factual basis for his offense and affirmed he was pleading guilty voluntarily. See United States v. Martinez-Cruz, 186 F.3d 1102, 1104 (8th Cir. 1999) (to be constitutionally valid, guilty plea must be knowing, voluntary, and intelligent; because guilty plea constitutes waiver of various constitutional rights, it must be made with sufficient awareness of relevant circumstances and likely consequences); Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (defendant's representations during plea-taking carry strong presumption of verity). Any ineffective-assistance claim should be deferred to proceedings under 28 U.S.C. § 2255 in which an appropriate record may be developed. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003).
Having reviewed the record independently pursuant to Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no non-frivolous issues. Accordingly, we grant counsel's motion to withdraw, we deny Durnal's motion for appointment of new counsel, and we affirm the judgment.
In addition, the case of United States v. Jones, 403 F.3d 604, 605 (8th Cir. 2005), provides the following summary of the standard to be used in determining ineffective assistance of counsel claims:
An ineffective-assistance-of-counsel claim involves two components, deficiency in counsel's performance and prejudice to the defendant. A successful petitioner must show both that "counsel's representation fell below an objective standard of reasonableness," and that there is a reasonable probability that, but for this deficiency in performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Set out below are relevant excerpts from defendant's May 21, 2004, change of plea hearing which commenced with defendant being sworn:
THE COURT: And how much formal education have you had?
THE DEFENDANT: Tenth grade. (Tr. 2, lines 15-17) ****
THE COURT: You thoroughly understand what this ...