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USCA1 Opinion
May 18, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-2094
JOSE A. ORTIZ-CASANOVA,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Stahl, Circuit Judges. ______________
____________________
Jose A. Ortiz Casanova on brief pro se. ______________________
Guillermo Gil, United States Attorney, and Salixto Medina-Malave, _____________ _____________________
Assistant United States Attorney, on brief for appellee.
____________________
____________________
Per Curiam. Appellant Jose A. Ortiz Casanova, acting __________
pro se, moved to vacate, modify or correct his sentence ___ __
pursuant to 28 U.S.C. 2255. Ortiz maintains that the
district court erred in dismissing all his claims without
conducting an evidentiary hearing concerning whether (1) the
sentence imposed failed to take into account the Sentencing
Reform Act of 1984, (2) the assessment of a $50,000 fine
violated due process and equal protection of the law, (3) the
plea-taking procedure was constitutionally defective, (4) his
counsel was constitutionally inadequate, and (5) the
government breached the plea agreement at sentencing.
Assuming, without deciding, that these challenges are all
cognizable in a 2255 proceeding, see Knight v. United ___ ______ ______
States, 37 F.3d 769, 772-74 (1st Cir. 1994), we find no error ______
and affirm.
BACKGROUND
On October 1, 1987, Ortiz and a co-defendant, the sole
occupants of a boat found to contain 195 kilos of cocaine,
were arrested. Subsequently, both were indicted on two
counts of cocaine importation and distribution charges. See ___
United States v. Palmer-Contreras, 835 F.2d 15, 16 (1st Cir. _____________ ________________
1987) (setting out background and affirming denial of
pretrial bail). Ortiz petitioned to enter a plea of guilty
to one count and executed a written plea agreement with the
government. A change-of-plea hearing was held on January 26,
1988. The plea was accepted, and Ortiz was convicted of
aiding and abetting the possession with intent to distribute
cocaine under 21 U.S.C. 841(a)(1) and 18 U.S.C. 2, in
violation of 1002 of the Anti-Drug Abuse Act of 1986
("ADAA"), Pub. L. No. 99-570 (Oct. 26, 1986).1 On April 6,
1988, Ortiz was sentenced to twenty-five years imprisonment,
five years of supervised release, a $50,000 stand-committed
fine, and a $50 special assessment. After various motions by
Ortiz for correction of sentence, the district court, on
January 25, 1990, reduced his term of imprisonment to 18
years. Further motions to modify the sentence and fine were
unsuccessful. Ortiz' direct appeal from conviction and
sentence was ultimately dismissed by this court for lack of
prosecution.
(1) The Sentence. (1) ____________
Ortiz contends that he should have been sentenced
according to the guidelines promulgated under the Sentencing
Reform Act of 1984. The guidelines became operative on
November 1, 1987 and, it is manifestly clear, apply only to
offenses committed on or after that date regardless of the
date of conviction or sentencing. Sentencing Act of 1987,
Pub. L. No. 100-182 (Dec. 7, 1987); 18 U.S.C. 3551 note;
see United States v. Twomey, 845 F.2d 1132, 1135 (1st Cir. ___ _____________ ______
____________________
1. The increased penalties, supervised release and no-parole
provisions of the ADAA became effective upon enactment.
Gozlon-Peretz v. United States, 498 U.S. 395, 401-09 (1991). _____________ _____________
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1988); see also United States v. Metallo, 908 F.2d 795, 800 ___ ____ ______________ _______
(11th Cir. 1990). Because Ortiz was convicted of conduct
that occurred in October 1987, the sentencing guidelines do
not apply, and he was properly sentenced under pre-guidelines
law. United States v. Richard, 943 F.2d 115, 120 (1st Cir. _____________ _______
1991); United States v. Thomas, 895 F.2d 51, 58 (1st Cir. _____________ ______
1990). There is no constitutional right to benefit from
sentencing guidelines that put into effect lesser punishment
levels for a crime after the offense was committed. See ___
United States v. Hayes, 929 F.2d 741, 742 (D.C.Cir. 1991). _____________ _____
Ortiz' argument that it is inconsistent to fix different
effective dates for penalty provisions of the ADDA and the
Sentencing Reform Act of 1984 was expressly rejected by the
Supreme Court in Gozlon-Peretz v. United States, 498 U.S. _____________ _____________
395, 405-09 (1991). Otherwise, Ortiz does not argue that the
sentence imposed was not within statutory limits or
constituted cruel and unusual punishment. See Richard, 943 ___ _______
F.2d at 120. The sentencing guidelines were never applicable
to Ortiz and he was properly sentenced under the ADAA.
(2) The Fine. (2) ________
Ortiz argues that the imposition of a stand-committed
fine of $50,000 is unjustified and exorbitant because he is
indigent. This claim is premature. Ortiz must first pursue
available administrative remedies designed to evaluate
inability to pay a fine, 18 U.S.C. 3569; Santiago v. United ________ ______
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States, 889 F.2d 371, 372-73 (1st Cir. 1989), and he is ______
without standing to contest his fine on indigency grounds
until and unless the government seeks incarceration for
nonpayment. See United States v. Levy, 897 F.2d 596, 598 ___ _____________ ____
(1st Cir. 1990). The mere existence of an outstanding penal
liability does not violate an indigent prisoner's rights.
United States v. Rivera-Velez, 839 F.2d 8 (1st Cir. 1988). _____________ ____________
(3) The Plea. (3) ________
Ortiz first maintains that the plea colloquy was
defective because the court failed to determine that Ortiz,
in entering the plea change, heavily relied on his attorney's
representation that he would receive no more than a ten year
sentence and would have to serve six years and eight months
at most. However, the facts recited in Ortiz' 2255
memoranda, his attached affidavit, the plea petition, the
parties plea agreement, and the declarations of Ortiz'
attorney and his codefendant's attorney2 do not, overall,
present enough evidence to overcome the presumed regularity
of the plea proceeding. These record documents effectively
contradict Ortiz' assertion that he was falsely assured by
____________________
2. Ortiz' complaints about his attorney are vague as to
which attorney represented him. Early on, both defendants
were represented by Abreu. It is clear that Lima assumed the
representation of Ortiz about six weeks before the change of
plea proceeding. Ortiz' affidavit indicates that both
attorneys visited him, and, presumably, his codefendant, in
prison prior to the plea change.
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his attorney that a guilty plea would garner a lighter
sentence.
Ortiz next complains that he relied upon his attorney's
representation that he would be eligible for parole after
serving one-third of his sentence and that the court failed
to reveal to him that his offense was nonparolable. Ortiz
relies on Durant v. United States, 410 F.2d 689, 693 (1st ______ ______________
Cir. 1969), which held that a defendant must be informed of
parole ineligibility. However, the 1974 Amendments to Fed.
R. Cr. P. 11 make clear that, in accepting a plea of guilty,
a court is not required to inform a defendant of the possible
collateral consequences of a guilty plea such as statutory
ineligibility for parole. Johnson v. United States, 650 F.2d _______ _____________
1, 4 (1st Cir. 1981); see Rule 11(c)(1) Notes of Advisory ___
Committee on Rules; see also United States v. Fox, 941 F.2d ___ ____ _____________ ___
480, 486 (7th Cir. 1991); United States v. Sanclemente- ______________ ____________
Bejarano, 861 F.2d 206, 209 (9th Cir. 1988). Ortiz' ________
assertion that no one mentioned parole ineligibility is
patently inadequate to set aside his guilty plea on
constitutional grounds. See United States v. Garcia, 698 ___ ______________ ______
F.2d 31, 33 (1st Cir. 1983) (due process not offended when
parole eligibility advice omitted in plea-taking).
(4) Ineffective Assistance. (4) ______________________
Ortiz charges that his attorney rendered ineffective
assistance of counsel during the plea negotiation process by
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misrepresenting to him his eligibility for parole.
Specifically, Ortiz alleges that his lawyer induced him to
plead guilty by telling him that he would be eligible for
parole after serving approximately one-third of his sentence
and that the sentence imposed would not exceed ten years.
But for those representations, Ortiz insists that he would
not have pleaded guilty.
Challenges to guilty pleas based on allegations of
ineffective assistance of counsel during the plea process are
evaluated under the familiar two-pronged cause and prejudice
test of Strickland v. Washington, 466 U.S. 668, 687-88, 694 __________ __________
(1984). Hill v. Lockhart, 474 U.S. 52, 58 (1985). The plea ____ ________
petition and plea agreement contradict Ortiz' belated
assertions that he was assured a specific sentence, as do the
attorneys' declarations that no promise, prediction or
representation concerning parole eligibility or sentencing
were made. Allegations based solely on counsel's inaccurate
predictions about sentencing are insufficient to sustain an
ineffective assistance claim. Knight v. United States, 37 ______ ______________
F.3d at 775; Worthen v. Meachum, 842 F.2d 1179, 1184 (10th _______ _______
Cir. 1988) (attorney's "bad guess" regarding parole does not
render plea involuntary). Ortiz' unadorned factual
allegation that his attorney misled him as to parole is
simply inadequate to warrant an evidentiary hearing.
Hernandez-Hernandez v. United States, 904 F.2d 758, 762 (1st ___________________ _____________
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Cir. 1990) (to obtain hearing, highly specific allegations
usually accompanied by independent corroboration are
required).
Even if Ortiz could satisfy the cause prong of
Strickland's test, he has failed to sufficiently allege that __________
he was prejudiced by the alleged error. Hill, 474 U.S. at ____
60. To establish prejudice, Ortiz must show a reasonable
probability that, armed with correct information, the outcome
would have been different. Strickland, 466 U.S. at 694. __________
Ortiz' bare and conclusory statement that if he had known
that his offense was nonparolable, he would not have pleaded
guilty and would have gone to trial is insufficient to show
prejudice. See Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. ___ ________ _____
1994); Barker v. United States, 7 F.3d 629, 633 (7th Cir. ______ _____________
1993); United States v. Hanley, 906 F.2d 1116, 1121 (6th Cir. _____________ ______
1990). Ortiz does not maintain that he was told he would be
eligible for parole only if he pleaded guilty, nor has he
otherwise indicated any "special circumstances" that might
support a reasonable inference that parole was particularly
important. Hill, 474 U.S. at 60. As Ortiz acknowledges, his ____
offense is nonparolable. Ortiz' misunderstanding as to
parole eligibility appears equally applicable either to going
to trial or pleading guilty. See Smith v. McCotter, 786 F.2d ___ _____ ________
697, 703 (5th Cir. 1986); see also Wellman v. Maine, 962 F.2d ___ ____ _______ _____
70, 73 (1st Cir. 1992). Since parole was not in play in
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either eventuality, Ortiz "failed to allege the kind of
prejudice from the allegedly incompetent advice of counsel
that would have entitled him to a hearing." Hill, 474 U.S. ____
at 53.
(5) Breach of Plea Agreement. (5) ________________________
Ortiz' last foray--that the government breached the plea
agreement--is frivolous. Ortiz maintains that the government
violated the letter and the spirit of the plea agreement by
appending to the presentence report a letter indicating that
the estimated wholesale value of the cocaine seized was
between 6 and 6.5 million dollars. The government had a duty
to bring all relevant conduct information to the court's
attention, and, in so doing, did not violate the plea
agreement.
CONCLUSION
Where, as here, a 2255 petition is presented to the
judge who presided over all the prior proceedings, the judge
may take into account the knowledge gleaned during the
previous proceedings without convening an additional hearing.
United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). ______________ ______
The district court properly rejected Ortiz' motion for 2255
relief based upon the papers of record and the court's
familiarity with the case. Id. at 225-26; Rule 4(b), Rules ___
Governing 2255 Proceedings.
The judgment of the district court is affirmed. ________
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Document Info
Docket Number： 93-2094
Filed Date： 5/18/1995
Precedential Status： Precedential
Modified Date： 3/3/2016