Almonacid, Juan v. United States ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4753
JUAN ALMONACID,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 4481—James B. Zagel, Judge.
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ARGUED DECEMBER 8, 2006—DECIDED FEBRUARY 14, 2007
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Before EASTERBROOK, Chief Judge, and POSNER and RIPPLE,
Circuit Judges.
RIPPLE, Circuit Judge. Juan Almonacid was convicted by
a jury of conspiracy to distribute and to possess with intent
to distribute more than five kilograms of cocaine. The
district court imposed a sentence of 235 months’ imprison-
ment. We affirmed Mr. Almonacid’s conviction on direct
appeal. See United States v. Almonacid, 70 F. App’x 390, 391
(7th Cir. 2003). Mr. Almonacid then brought a motion
2 No. 05-4753
under 28 U.S.C. § 2255 alleging, among other matters, the
ineffective assistance of trial counsel. The district court
denied the petition without an evidentiary hearing. We
granted a certificate of appealability limited to his claim of
ineffective assistance of counsel. For the reasons set forth
in this opinion, we affirm the judgment of the district court.
I
BACKGROUND
Mr. Almonacid was a confederate of Hugo Catano, the
leader of a criminal organization that conspired to import
and to distribute large amounts of cocaine. On multiple
occasions, Mr. Almonacid personally received large
quantities of cocaine and facilitated payment for the drugs.
Mr. Almonacid’s participation in the conspiracy extended
beyond transporting drugs and money. He also engaged a
chemist to test the purity of the cocaine received by the
Catano organization and rented an apartment for Catano.
When the conspiracy collapsed, Mr. Almonacid abruptly
left his home.
In December 1998, the Government indicted Mr.
Almonacid and seven others on a single count of conspir-
acy to distribute and to possess with intent to distribute
more than five kilograms of cocaine. Despite Mr.
Almonacid’s close contact with Catano and other members
of the conspiracy, the Government had relatively little
direct evidence connecting him to the conspiracy. More
precisely, the Government had no forensic evidence
connecting Mr. Almonacid to the cocaine, no photographic
evidence of Mr. Almonacid engaging in the conspiracy,
no voice recording of Mr. Almonacid or even any mention
of his name on a wiretap, and no witness who observed
No. 05-4753 3
Mr. Almonacid engage in any drug-related activities. The
Government’s case rested primarily on the testimony of
cooperating co-conspirators.
Mr. Almonacid also had a number of potential defenses.
First, the cooperating co-conspirators were all testifying
against him in exchange for leniency. Additionally, one of
the cooperating co-conspirators previously had provided
the Government with a chart of the Catano organization
that did not include Mr. Almonacid. Lastly, a non-cooper-
ating co-conspirator testified that he, not Mr. Almonacid,
was the “Cookieman” identified by one of the cooperating
co-conspirators as Mr. Almonacid.
Prior to trial, the Government extended a plea offer.
Under its terms, Mr. Almonacid would plead guilty to two
counts of using a telephone to facilitate a drug trafficking
offense. The maximum penalty for these offenses was eight
years’ imprisonment. By contrast, the maximum penalty
Mr. Almonacid faced if convicted on the conspiracy charge
was twenty-five years’ imprisonment. Mr. Almonacid’s
attorney advised him to reject the Government’s offer,
based largely on the strength of the defense. Mr.
Almonacid rejected the plea offer, but, after a jury trial,
was convicted and sentenced to 235 months’ imprison-
ment.
After his direct appeal, Mr. Almonacid filed a motion to
vacate or set aside his sentence. See 28 U.S.C. § 2255. He
requested an evidentiary hearing. In his § 2255 motion, Mr.
Almonacid alleged, among other matters, ineffective
assistance of counsel with respect to his decision to reject
the plea. He contended that he had based his decision on
trial counsel’s assurances that the Government “had
nothing on [him].” R.1-1 at 16. He further contended that
counsel had a motive to encourage Mr. Almonacid to reject
4 No. 05-4753
the plea offer because the fee arrangement with his trial
counsel called for a fee of $15,000 for a plea agreement and
$25,000 for a trial.
The district court denied Mr. Almonacid’s petition
without an evidentiary hearing. The court held that Mr.
Almonacid had not shown any deficiency in the perfor-
mance of trial counsel that would rise to the level of
constitutional ineffectiveness. Because it found no defi-
ciency in trial counsel’s performance, the court found it
unnecessary to reach the issue of whether Mr. Almonacid
suffered any prejudice.
Mr. Almonacid filed a timely appeal. We granted a
certificate of appealability limited to Mr. Almonacid’s
claim of ineffective assistance of counsel with regard to his
decision to reject the Government’s plea offer.
II
DISCUSSION
The district court denied Mr. Almonacid’s § 2255 motion
and his request for an evidentiary hearing after finding,
based on the record and events of the trial, that Mr.
Almonacid could not show that trial counsel’s conduct was
constitutionally deficient. We review the district court’s
conclusions of law de novo and its denial of a motion for an
evidentiary hearing for abuse of discretion. Bruce v. United
States, 256 F.3d 592, 597 (7th Cir. 2001). Because an error of
law is, by definition, an abuse of discretion, United States v.
Rea-Beltran, 457 F.3d 695, 702 (7th Cir. 2006), any error of
law in dismissing Mr. Almonacid’s motion for an eviden-
tiary hearing would constitute an abuse of discretion.
No. 05-4753 5
As we noted recently in Kafo v. United States, 467 F.3d
1063, 1068 (7th Cir. 2006), relief under § 2255 is an extraor-
dinary remedy because it asks the district court essentially
to reopen the criminal process to a person who already has
had an opportunity for full process. Consequently, Rule 4
of the Rules Governing Section 2255 Proceedings for the United
States District Courts provides that “[i]f it plainly appears
from the motion, any attached exhibits, and the record of
prior proceedings that the moving party is not entitled to
relief, the judge must dismiss the motion.” Only when the
district court has determined that the § 2255 motion ought
not be dismissed at that early stage does the district court
have occasion to determine whether an evidentiary hearing
is required. See Rule 8(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts. As we said
in Bruce v. United States, 256 F.3d 592 (7th Cir. 2001), a
“district court need not grant an evidentiary hearing in all
§ 2255 cases.” Id. at 597. “Such a hearing is not required if
‘the motion and the files and records of the case conclu-
sively show that the prisoner is entitled to no relief.’ ” Id.
(quoting 28 U.S.C. § 2255).
We have held that the Sixth Amendment right to effective
assistance of counsel extends to assistance rendered when
deciding whether to reject a plea offer. Toro v. Fairman, 940
F.2d 1065, 1067 (7th Cir. 1991). To establish ineffective
assistance of counsel, the defendant must show that
counsel’s performance was deficient and that the deficient
performance prejudiced the defense. Strickland v. Washing-
ton, 466 U.S. 668, 687 (1984). Trial counsel’s performance
will not be considered deficient unless it falls “below an
objective standard of reasonableness.” Id. at 688. Further,
trial counsel is entitled to a “strong presumption” that his
performance fell “within the wide range of reasonable
6 No. 05-4753
professional assistance” and will not be judged with the
benefit of hindsight. Id. at 689. When counsel advises the
defendant to reject a plea offer, his performance is not
objectively unreasonable unless such advice is made “in the
face of overwhelming evidence of guilt and an absence of
viable defenses.” Gallo-Vasquez v. United States, 402 F.3d
793, 798 (7th Cir. 2005).
Mr. Almonacid’s sworn § 2255 motion and affidavit were
the only pieces of evidence submitted in support of his
motion. See Kafo, 467 F.3d at 1068 (holding that allegations
within an affidavit or motion signed under penalty of
perjury become evidence by which the district court may
judge the sufficiency of the movant’s claims). Mr.
Almonacid admits that his attorney informed him of the
plea offer and of the likely sentence. He does not contend
that his counsel misrepresented the potential sentencing
exposure under either scenario.1 Rather, he submits that he
was misled by counsel’s predictions that he would prevail
at trial. See R.1-1 at 16.
Mr. Almonacid’s attorney did not make this estimation
“in the face of overwhelming evidence of guilt and an
absence of viable defenses.” Gallo-Vasquez, 402 F.3d at 798.
As the district court noted, the Government’s case relied
largely on the testimony of cooperating co-conspirators.
R.24-1 at 1-2. The Government had no forensic evidence
linking Mr. Almonacid to any cocaine, and it had no
witnesses who could identify Mr. Almonacid as a partici-
1
Cf. United States v. Golden, 102 F.3d 936, 943 (7th Cir. 1996)
(holding that trial counsel’s performance was within the range
of competent representation when he informed the defendant of
the charges, the plea offer, the likely prison sentence if convicted
and the likely prison sentence under the plea offer).
No. 05-4753 7
pant in the conspiracy other than the cooperating co-
conspirators. Id. at 6. Further, Mr. Almonacid had a
number of viable defenses, including bias on the part of the
testifying co-conspirators and mistake of identity. Id. at 6.
Thus, based on the evidence submitted by Mr.
Almonacid and on the district court’s observations from
prior proceedings, it cannot be said that the court erred
when it concluded that Mr. Almonacid’s trial counsel did
not fall below an objective standard of reasonableness
when he advised Mr. Almonacid not to accept the Govern-
ment’s offer.2
Conclusion
Accordingly, we conclude that the district court correctly
denied the § 2255 petition without conducting a hearing.
2
Mr. Almonacid submits that it was improper for the court to
consider the events at trial because Strickland v. Washington, 466
U.S. 668 (1984), directs our inquiry to the objective reasonable-
ness of the attorney’s performance to what the attorney knew at
the time of the allegedly deficient performance. 466 U.S. at 689.
This argument gives little attention to Strickland’s admonition
that a reviewing court should make every effort to avoid second
guessing the decisions of trial counsel with the benefit of
hindsight. Id. Further, the Rules Governing Section 2255 Proceed-
ings clearly permit the district court to look to the record of the
prior proceeding in advance of any evidentiary hearing and base
its decision to dismiss the petition on that review. See Rule 4(b)
of the Rules Governing Section 2255 Proceedings for the United
States District Courts; see also Gallo-Vasquez v. United States, 402
F.3d 793, 797 (7th Cir. 2005); Rodriguez v. United States, 286 F.3d
972, 986-87 (7th Cir. 2002); Bruce v. United States, 256 F.3d 592,
597 (7th Cir. 2001).
8 No. 05-4753
Mr. Almonacid’s petition fails to disclose a basis upon
which he could prevail on his claim of ineffective assistance
of counsel. The judgment of the district court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-14-07