Wilson Daniel Winthrop-Redin v. United States , 767 F.3d 1210 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10107
________________________
D.C. Docket Nos. 8:12-cv-00548-EAK-TBM,
8:09-cr-00571-EAK-TBM-3
WILSON DANIEL WINTHROP-REDIN,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 23, 2014)
Before HULL, MARCUS and BLACK, Circuit Judges.
MARCUS, Circuit Judge:
For his role as a boat crew member in an international drug-smuggling
operation, Wilson Daniel Winthrop-Redin pled guilty to a federal charge of
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conspiracy to possess five kilograms or more of cocaine with the intent to
distribute and was sentenced to 168 months in prison. Two years after entering his
plea, Winthrop-Redin sought postconviction relief under 28 U.S.C. § 2255,
claiming that his plea was coerced by death threats from the boat’s captain and that
his counsel provided ineffective assistance by instructing him not to report the
threats to the district court. We affirm the district court’s rejection of the claims
without an evidentiary hearing. Because Winthrop-Redin put forward only
implausible and conclusory allegations, “the motion and the files and records of the
case conclusively show that the prisoner is entitled to no relief” without a hearing.
28 U.S.C. § 2255(b); see Aron v. United States, 291 F.3d 708, 715 n.6 (11th Cir.
2002).
I.
A plea agreement signed by Winthrop-Redin contained the following
essential facts. Winthrop-Redin, a Panamanian national, and other codefendants
agreed to participate in a maritime drug-smuggling scheme and received advance
payment of several thousand dollars. In November 2009, Winthrop-Redin and his
codefendants left Panama aboard the St. Vincent-registered Motor Vessel (M/V)
Olympiakos bound for Barranquilla, Colombia. In Colombia, the M/V
Olympiakos received a load of coal, a “cover load” of legitimate cargo to conceal
the smuggling mission. Shortly before the M/V Olympiakos left port, three armed
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individuals boarded the boat to protect the drug shipment. On December 1, 2009,
the M/V Olympiakos met a go-fast boat off the Colombian coast. Ninety bales of
cocaine were moved from the go-fast boat to the M/V Olympiakos. The crew of
the M/V Olympiakos, including Winthrop-Redin, concealed the cocaine in a
hidden compartment. On December 2, 2009, the United States Coast Guard
approached, boarded, and inspected the Olympiakos in international waters. The
Coast Guard discovered the hidden compartment and seized the ninety bales of
cocaine, which weighed over 2,000 kilograms. With the consent of the
government of St. Vincent, Winthrop-Redin and his codefendants were brought to
the United States, with their first point of entry in the Middle District of Florida.
Winthrop-Redin and seven others 1 were indicted on two counts: (1) conspiring to
possess with the intent to distribute and to distribute five kilograms or more of
cocaine while on board a vessel subject to the jurisdiction of the United States, 21
U.S.C. § 960(b)(1)(B)(ii); 46 U.S.C. §§ 70503(a), 70506(a)-(b), as well as (2)
possessing with intent to distribute five kilograms or more of cocaine on board a
vessel subject to the jurisdiction of the United States, 21 U.S.C. § 960(b)(1)(B)(ii);
46 U.S.C. §§ 70503(a), 70506(a).
1
Joffre Alouso Plaza-Arevalo, Javier Enrique Castillo-Romero, Luis Nunez Reyes-Serrano,
Clemente Bautista-Silva, Gustavo Adolfo de Poll-Noriega, Paulo Andres Molina-Roja, and Jorge
Anres Molina-Molina.
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Each of the codefendants pled guilty. Winthrop-Redin entered into a written
plea agreement that provided he would plead guilty to conspiracy, the first count of
the indictment, in exchange for the dismissal of the second count, possession.
Winthrop-Redin initialed each page of the agreement and signed its last page. In
the plea agreement, Winthrop-Redin expressly waived his right to appeal his
sentence, except on the grounds that the sentence violated the Eighth Amendment
or exceeded the statutory maximum penalty or the applicable Guidelines range
determined by the district court. Section B.8 of the agreement, “Voluntariness,”
provided that Winthrop-Redin “acknowledges that [he] is entering into this
agreement and is pleading guilty freely and voluntarily . . . without threats, force,
intimidation, or coercion of any kind.” Petitioner also voluntarily agreed to
cooperate fully with the United States in all relevant matters.
Before the plea was accepted, a magistrate judge questioned Winthrop-
Redin under oath and at length at a hearing to ensure he pled knowingly and
voluntarily. Among other things, the plea colloquy included the following
exchange:
THE COURT: Mr. Winthrop, has anybody promised you anything
other than what is set out in your plea agreement to get you to plead?
MR. WINTHROP-REDIN: No.
THE COURT: Has anybody promised you a particular sentence?
MR. WINTHROP-REDIN: No.
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THE COURT: Has anybody threatened you or a member of your
family in any way to get you to plead?
MR. WINTHROP-REDIN: No.
THE COURT: Do you feel like anybody is forcing you into this
decision?
MR. WINTHROP-REDIN: No.
THE COURT: You’ve been represented here by Mr. Gottfried. Do
you have any complaints about anything your lawyer has done?
MR. WINTHROP-REDIN: None.
The magistrate judge concluded that Winthrop-Redin and his codefendants
were coherent and understood the allegations and potential punishment, and that a
factual basis existed to support the allegations. The court specifically found that
none of defendants had been threatened, forced, or coerced into pleading guilty:
“From everything that appears to me today, gentlemen, your pleas are being
entered freely and voluntarily with an understanding of the consequences and I will
so find and recommend the matter proceed to sentencing.” Thereafter, the district
court accepted the plea and sentenced Winthrop-Redin to 168 months
imprisonment to be followed by 60 months of supervised release. That sentence
reflected a two-level firearms enhancement related to the possession of firearms by
co-conspirators, but Winthrop-Redin received a two-level “safety valve” reduction
pursuant to Sentencing Guidelines § 5C1.2 as a less-culpable defendant who
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agreed to provide information about the offense to law enforcement. See United
States v. Brownlee, 204 F.3d 1302, 1304 (11th Cir. 2000).
Winthrop-Redin filed a direct appeal from the final judgment, arguing that
the district court erred by denying him a minor role reduction and by imposing the
firearms possession enhancement. This Court, however, dismissed the appeal due
to the appeal waiver.
In March 2012, more than two years after signing the plea agreement and
entering his guilty plea, Winthrop-Redin filed a pro se motion to vacate his
sentence pursuant to 28 U.S.C. § 2255. Inter alia, he argued that his plea was
involuntarily entered because he and his family received death threats, and that he
received ineffective assistance of counsel when deciding to plead guilty. 2 In an
affidavit accompanying the motion, Winthrop-Redin said that he had been hired by
Alexis Hernandez-Soto, “the captain / chief master” of M/V Olympiakos, for a trip
from Panama to Colombia. The United States concedes that Hernandez-Soto was
an informant for the Drug Enforcement Administration. According to Winthrop-
Redin, after a dispute, Hernandez-Soto ordered the assassination of a Colombian
crew member. When Winthrop-Redin confronted him, Hernandez-Soto said that
he and his cohorts would kill Winthrop-Redin and his family if he told the
2
Winthrop-Redin also argued that his appeal waiver was entered involuntarily, and that the
government breached the plea agreement by recommending a firearm-possession sentencing
enhancement but not recommending he receive a downward departure for substantial assistance.
The certificate of appealability we issued in this case does not include these claims.
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authorities or the crew member’s family about the murder of the Colombian.
Subsequently, Winthrop-Redin said, he was forced to stay in the vessel under death
threats. Winthrop-Redin also claimed that Hernandez-Soto and two other crew
members working as informants for the United States government “coerc[ed] me to
plead guilty under death threats.” Notably, however, he did not offer where, when,
or why he was coerced to plead guilty. All he said was that he “did not have a
choice other than to comply with [Hernandez-Soto’s] orders.” Winthrop-Redin
admitted, as he had to, that he swore under oath at the sentencing hearing that his
guilty plea was entered knowingly and voluntarily and that he had not been
coerced or threatened to do so. He claimed, nevertheless, at the highest order of
abstraction, that he pled out of fear. And he claimed that, but for the threats
against him and his family, he would have proceeded to trial.
Winthrop-Redin further claimed that he received ineffective assistance of
counsel. He alleged that his attorney advised him not to say anything to the district
court or anyone else about Hernandez-Soto having killed the Colombian crew
member because doing so would complicate the case. Winthrop-Redin also
claimed that, despite his request, his attorney did not contact the Panamanian
Consulate to get legal help and did not contact the Colombian Consulate to notify
them of the crew member’s killing.
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In response, the United States told the district court that the alleged threats
concerning the murder happened on the vessel before Winthrop-Redin was arrested
(and before he was charged with anything), and that Winthrop-Redin had not
alleged any threats regarding his decision to enter a guilty plea or proceed to trial.
Winthrop-Redin replied that “Hernandez-Soto made direct threats to his family and
movant while movant was detained ready to proceed to trial.” Again notably,
Winthrop-Redin did not offer when the threats had been made and did not explain
where, how, or why. Winthrop-Redin claimed only that his family told him “that
Hernandez-Soto and other cohorts of him were calling them with death threats if
movant proceeded to trial or testified in court about the assassination of the crew
member.”
The district court refused relief because it found that the record showed
Winthrop-Redin knowingly and voluntarily entered his guilty plea. The district
court noted that Winthrop-Redin’s claim that he was directly threatened while he
“was detained ready to proceed to trial” was factually impossible: Hernandez-Soto
was never charged in the case and thus never detained, and therefore could not
have directly threatened Winthrop-Redin to force him to plead guilty. The court
also found claims about threats to Winthrop-Redin’s family members to be without
merit because Hernandez-Soto told the United States about the death on the vessel
and had no reason to silence Winthrop-Redin. The district court did not conduct an
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evidentiary hearing on this or any of Winthrop-Redin’s other § 2255 claims, which
it also rejected. The court declined to issue a certificate of appealability.
Winthrop-Redin filed a timely notice of appeal, and we granted a certificate
of appealability on one issue: “Whether Winthrop-Redin is entitled to an
evidentiary hearing on his claim that his guilty plea was not knowing or voluntary
due to threats that he received and ineffective assistance of plea counsel.”
II.
We review the district court’s denial of an evidentiary hearing in a § 2255
proceeding for abuse of discretion. Aron, 291 F.3d at 714 n.5. “A district court
abuses its discretion if it applies an incorrect legal standard, applies the law in an
unreasonable or incorrect manner, follows improper procedures in making a
determination, or makes findings of fact that are clearly erroneous.” Citizens for
Police Accountability Political Comm. v. Browning, 572 F.3d 1213, 1216-17 (11th
Cir. 2009) (per curiam). We liberally construe pro se filings, including pro se
applications for relief pursuant to § 2255. Aron, 291 F.3d at 715; Mederos v.
United States, 218 F.3d 1252, 1254 (11th Cir. 2000).
Section 2255 permits a federal prisoner to bring a collateral challenge by
moving the sentencing court to vacate, set aside, or correct the sentence. 28 U.S.C.
§ 2255(a). Once a petitioner files a § 2255 motion, “[u]nless the motion and the
files and records of the case conclusively show that the prisoner is entitled to no
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relief, the court shall . . . grant a prompt hearing thereon, determine the issues and
make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b).
A petitioner is entitled to an evidentiary hearing if he “alleges facts that, if true,
would entitle him to relief.” Aron, 291 F.3d at 715 (quoting Holmes v. United
States, 876 F.2d 1545, 1552 (11th Cir. 1989)). “[A] petitioner need only allege --
not prove -- reasonably specific, non-conclusory facts that, if true, would entitle
him to relief.” Id. at 715 n.6. However, a district court need not hold a hearing if
the allegations are “patently frivolous,” “based upon unsupported generalizations,”
or “affirmatively contradicted by the record.” Holmes, 876 F.2d at 1553 (quoting
Guerra v. United States, 588 F.2d 519, 520-21 (5th Cir. 1979) 3); see, e.g., Lynn v.
United States, 365 F.3d 1225, 1239 (11th Cir. 2004) (“Because the . . . affidavits
submitted by Lynn amount to nothing more than mere conclusory allegations, the
district court was not required to hold an evidentiary hearing on the issues and
correctly denied Lynn’s § 2255 motion.”).
“A guilty plea, if induced by promises or threats which deprive it of the
character of a voluntary act, is void. A conviction based upon such a plea is open
to collateral attack.” Machibroda v. United States, 368 U.S. 487, 493 (1962). At
the same time, plea bargaining retains its benefits of certainty and efficiency “only
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
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if dispositions by guilty plea are accorded a great measure of finality.” Blackledge
v. Allison, 431 U.S. 63, 71 (1977); see id. (“To allow indiscriminate hearings in
federal postconviction proceedings . . . for federal prisoners under 28 U.S.C. §
2255 . . . would eliminate the chief virtues of the plea system -- speed, economy,
and finality.”). While § 2255 exists “to safeguard a person’s freedom from
detention in violation of constitutional guarantees,” the Court observed that
“[m]ore often than not a prisoner has everything to gain and nothing to lose from
filing a collateral attack upon his guilty plea.” Id. at 71-72. As a result, “the
representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing,
as well as any findings made by the judge accepting the plea, constitute a
formidable barrier in any subsequent collateral proceedings.” Id. at 73-74; see id.
at 80 n.19 (explaining that if the record reflects the procedures of plea negotiation
and includes a verbatim transcript of the plea colloquy, a petitioner challenging his
plea will be entitled to an evidentiary hearing “only in the most extraordinary
circumstances”). “The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as are contentions that in
the face of the record are wholly incredible.” Id. at 74.
The district court did not abuse its considerable discretion in declining to
hold a § 2255(b) evidentiary hearing because Winthrop-Redin’s involuntary plea
claim is based only on conclusory and incredible allegations. We say so for a
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number of reasons. For starters, the record contains powerful evidence from
Winthrop-Redin himself indicating that his guilty plea was knowing and voluntary.
Winthrop-Redin initialed and signed the plea agreement, which specified that he
had decided to plead knowingly and voluntarily, without threats, force,
intimidation, or coercion. Winthrop-Redin then testified under oath and in detail
that his plea had not been induced by threats or force leveled against him or his
family. See Fed. R. Crim. P. 11(b)(2) (“Before accepting a plea of guilty . . . , the
court must address the defendant personally in open court and determine that the
plea is voluntary and did not result from force [or] threats . . . .”). Such “[s]olemn
declarations in open court carry a strong presumption of verity.” Blackledge, 431
U.S. at 74; accord United States v. Gonzalez-Mercado, 808 F.2d 796, 800 n.8 (11th
Cir. 1987) (“While Rule 11 is not insurmountable, there is a strong presumption
that the statements made during the colloquy are true.”). Indeed, because
Winthrop-Redin made statements under oath at a plea colloquy, “he bears a heavy
burden to show his statements were false.” United States v. Rogers, 848 F.2d 166,
168 (11th Cir. 1988) (per curiam).
In the second place, Winthrop-Redin waited more than two years after he
pled guilty, and only after all other avenues for relief from his sentence were
exhausted, to say anything to the district court about alleged threats. Then, to
counter his “directly inconsistent former testimony,” Winthrop-Redin “tendered
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only his own affidavit.” Bryan v. United States, 492 F.2d 775, 779-80 (5th Cir.
1974) (en banc). The former Fifth Circuit noted in dicta that “the allegations of [a
§ 2255] petitioner accompanied by his own affidavit are insufficient to mandate an
evidentiary hearing in the face of a Rule 11 record detailing statements by the
petitioner that his plea was not induced by any threats or coercion.” Matthews v.
United States, 533 F.2d 900, 902 (5th Cir. 1976). While this clear-cut principle
does not bind our decision because, in prior precedent, the Fifth Circuit explained
that under § 2255(b) “[n]o per se rule can be applied, for in the final analysis, the
issue becomes one of fact,” it does inform our analysis. Bryan, 492 F.2d at 778;
see United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (per
curiam) (“Under the prior precedent rule, we are bound to follow a prior binding
precedent ‘unless and until it is overruled by this court en banc or by the Supreme
Court.’” (quoting United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003))).
The fact that Winthrop-Redin presented only his own affidavit bears on whether
the record conclusively shows he is entitled to no relief. See Bryan, 492 F.2d at
780 (warning against a system where “the number of hearings which a wilful
affiant could provoke as to a single conviction would be limitless, for each time he
could swear that someone at the last preceding hearing suborned false testimony
from him”). In addition, we observe that Winthrop-Redin nowhere alleged what
evidence he intended to adduce at an evidentiary hearing. The district court is
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entitled to discredit a defendant’s newly-minted story about being threatened when
that story is supported only by the defendant’s conclusory statements.
Moreover, Winthrop-Redin did not put forward “specific and detailed
factual assertions” that, if true, would entitle him to relief. Id. at 779. Winthrop-
Redin’s affidavit states that Hernandez-Soto ordered the killing of a crew member
and threatened Winthrop-Redin not to say anything about the murder. But
Winthrop-Redin was charged with, and pled guilty to, conspiracy to possess
cocaine with the intent to distribute, not murder. Winthrop-Redin’s allegations in
no way connect the threats concerning disclosure of the killing with the decision to
plead guilty, which occurred substantially later in time. As a result, even if it were
true that Hernandez-Soto told Winthrop-Redin to say nothing about the murder,
that fact would not establish that the guilty plea on the drug conspiracy charge was
involuntary. If anything, pleading guilty, which required Winthrop-Redin to tell
the government and the district court about the smuggling operation and all related
matters, created far more risk of divulging details about the alleged murder than
proceeding to trial. After all, in the plea agreement Winthrop-Redin “agree[d] to
cooperate fully with the United States,” to testify “fully and truthfully” in any
federal court proceeding connected with “the charges in this case and other
matters,” and to make “a full and complete disclosure of all relevant information.”
Winthrop-Redin does not explain how Hernandez-Soto’s alleged command not to
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divulge the murder coerced him into entering a plea agreement that involved
cooperating with the government and disclosing all relevant facts.
Besides the threats tied to the crew member killing, Winthrop-Redin puts
forward no specific facts in support of his conclusory claim that he “was
intimidated and coerced into pleading guilty by codefendants in my case who
threatened to kill me and my family members.” Notably, he does not offer how
Hernandez-Soto conveyed threats urging him to plead guilty, when, where, or how
often they were made, or even why Hernandez-Soto wanted him to plead. He
argues nevertheless that his allegations are sufficiently specific for a hearing
because they include “(1) the naming, or description, of persons involved; (2) an
account of the relevant acts or conduct of such persons; (3) an account of the time
and place where such acts or conduct took place; and (4) a statement of how such
acts or conduct prejudiced the petitioner.” Diamond v. United States, 432 F.2d 35,
40 (9th Cir. 1970). But Winthrop-Redin flunks his own test. He offers no account
of the time, place, or acts involved in the threats he says pressured him into a guilty
plea. Alone, the conclusory assertion that he pled guilty because of death threats
from Hernandez-Soto is not enough to warrant a § 2255 hearing in the face of this
full record, including Winthrop-Redin’s prior testimony that he pled guilty
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knowingly and voluntarily. 4 The district court was not required to allow a fishing-
expedition based only on Winthrop-Redin’s incredible allegations. See
Machibroda, 368 U.S. at 495 (“The language of [§ 2255(b)] does not strip the
district courts of all discretion to exercise their common sense.”).
Winthrop-Redin also alleges in his affidavit that he told his attorney that he
wanted to tell the district court about the threats from Hernandez-Soto, but that
“counsel misadvised [him] not to say anything about it to the judge, the prosecutor,
or anyone else and that is was better to keep it that way or things would get much
more complicated in the case.” On appeal, Winthrop-Redin argues that he is
entitled to an evidentiary hearing on his claim that counsel was ineffective for
advising him not to tell the district court about the threats and for allowing him to
plead guilty under duress.
“During plea negotiations defendants are ‘entitled to the effective assistance
of counsel.’” Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) (quoting McMann v.
Richardson, 397 U.S. 759, 771 (1970)). To establish ineffective assistance, a
defendant must show deficient performance and prejudice. Strickland v.
4
In an unverified Reply filed in support of his motion, Winthrop-Redin claimed that his family
told him “that Hernandez-Soto and other cohorts of him were calling them with death threats if
movant proceeded to trial or testified in court about the assassination of the crew member.”
Winthrop-Redin does not argue on appeal that statements in the Reply entitle him to a hearing.
And the Reply still fails to allege specific facts. It does not describe which “other cohorts”
conveyed the threats, how many times they did so, when the threats were made, which family
members received them, what the threatening parties actually said, or why Hernandez-Soto and
“other cohorts” wanted him to plead guilty.
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Washington, 466 U.S. 668, 687 (1984). On the first prong, “counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.” Id. at 690. To establish
prejudice, a defendant must show “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. Where, as here, the petitioner
challenges his guilty plea based on his counsel’s alleged deficient performance, he
can show prejudice only if “there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Winthrop-Redin is not entitled to a § 2255(b) evidentiary hearing because he
does not specifically allege that he told his attorney he had been threatened with
death unless he pled guilty. Instead, as he explained in his district court
Memorandum of Law, Winthrop-Redin claimed that he told his attorney “the
details of how Hernandez-Soto ha[d] killed the Colombian crew member in the
vessel and that he had threatened to kill movant and his family if he did not keep
his mouth shot [sic].” Even if this allegation were true, Winthrop-Redin would not
be entitled to relief. We cannot say that counsel would have exceeded the bounds
of reasonable professional judgment by advising a client not to tell the judge about
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a separate incident unconnected to the client’s decision to plead guilty. Moreover,
as the government points out, counsel’s alleged advice might even have protected
his client’s interests. If the district court considered murder of the crew member to
be reasonably foreseeable relevant conduct, the court could have increased
Winthrop-Redin’s sentencing level under the Guidelines. See U.S. Sentencing
Guidelines Manual §§ 2A1.1(a), 2D1.1(d)(1) (2009). Nor did Winthrop-Redin
allege prejudice sufficient to warrant a hearing because he did not claim in his
§ 2255 motion or his supporting affidavit that his decision to plead guilty was
affected by his attorney’s advice not to tell the judge about threats related to the
crew member’s murder. 5
Finally, Winthrop-Redin claims that his counsel was deficient for failing to
contact the Consulates of Panama and Colombia to inform them of the crew
member’s murder and to obtain legal assistance. But Winthrop-Redin does not say
what help, if any, the Consulates could have provided. He certainly does not allege
that the failure to contact them had any effect on his decision to plead guilty.
5
In his district court Reply, Winthrop-Redin first stated that “[h]ad counsel rendered an
undivided and loyal defense to movant, movant would have testified in camera about the
assassination case, he would have proceeded to trial and he would have never pleaded guilty
. . . .” Again, Winthrop-Redin does not argue on appeal that statements made for the first time in
the Reply entitle him to a hearing. And even if Winthrop-Redin had properly presented it to the
district court, the conclusory allegation would not warrant a hearing. Winthrop-Redin still
alleges no specific facts connecting his attorney’s advice about the death of the crew member
with the decision to plead guilty.
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Without specific allegations supporting his Strickland claim, Winthrop-Redin is
not entitled to a § 2255(b) evidentiary hearing.
AFFIRMED.
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