United States v. Christian Finze

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 13 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-15143
Plaintiff - Appellee, D.C. No. 2:08-cv-01401- PMP
v.
MEMORANDUM*
CHRISTIAN FINZE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted February 15, 2011
San Francisco, California
Before: SCHROEDER, THOMAS, Circuit Judges, and BENNETT, District
Judge.**
Defendant Christian Finze appeals the denial of his Motion Pursuant To 28
U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Mark W. Bennett, District Judge for the Northern
District of Iowa, sitting by designation.
Custody. Finze, a German national, seeks relief from his sentence of 120 months
and forfeiture of property, after his conviction by a jury on numerous charges.1
These charges arose from his operation of an internet business that provided drugs,
including drugs listed as controlled substances in the United States, from a
pharmacy in Germany to individuals in the United States. Although Finze had
pleaded guilty to a single count of conspiracy to distribute controlled substances,
pursuant to a plea agreement, which would likely have resulted in a sentence less
than half as long, he withdrew his guilty plea after he sought and received
appointment of replacement counsel. He now contends that replacement counsel
provided ineffective assistance with regard to withdrawal of his guilty plea, then
mounted a legally untenable defense and otherwise performed deficiently at trial.
The district court denied § 2255 relief on Finze’s ineffective assistance of counsel
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Finze was convicted on all of the following charges: conspiracy to
defraud the United States in violation of 18 U.S.C. § 371 (Count 1); making and
using a false writing to be issued to an agency of the United States in violation of
18 U.S.C. §§ 1001 and 2 (Counts 2 through 8); conspiracy to distribute controlled
substances in violation of 21 U.S.C. § 846 (Count 9); conspiracy to import
controlled substances in violation of 21 U.S.C. § 963 (Count 10); distribution of
Schedule IV controlled substances in violation of 21 U.S.C. § 841(a)(1) and (b)(2)
and 18 U.S.C. § 2 (Count 11); distribution of Schedule III controlled substances in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) and 18 U.S.C. § 2 (Count 12); and
money laundering in violation of 18 U.S.C. § 1957 (Counts 13 through 17). The
Second Superseding Indictment also included forfeiture allegations pursuant to 21
U.S.C. § 853(a) and (p) and 18 U.S.C. § 982(a)(1) and (b)(1), as well as notice of
various possible sentencing enhancements.
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claims, but issued a certificate of appealability pursuant to 28 U.S.C.
§ 2253(c)(1)(B) on all of them. We review the district court’s denial of a § 2255
motion de novo. United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir. 2003).
We affirm.
1. We consider first Finze’s claim of ineffective assistance of his
replacement counsel with respect to the withdrawal of his guilty plea and his
contention that the district court should have held an additional evidentiary hearing
on this claim. To prevail on an ineffective assistance of counsel claim, a habeas
petitioner must prove both deficient performance by counsel and prejudice to the
petitioner, but the court need only consider one of these requirements, if it is
dispositive of the claim. See Strickland v. Washington, 466 U.S. 668, 687-88, 697
(1984); Knowles v. Mirzayance, ___ U.S. ___, 129 S. Ct. 1411, 1419 (2009).
The record shows that replacement counsel was not constitutionally deficient
in advising Finze concerning withdrawing his guilty plea. First, replacement
counsel discussed with Finze the dangers of withdrawing his plea and going to
trial, including the possibility that the government would file a superseding
indictment with additional charges carrying higher penalties and the pros and cons
of going forward with sentencing. Second, replacement counsel met with Finze
regarding the reasons that he wanted to withdraw his guilty plea; reviewed the
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records, transcripts, and other documents in the case relating to the entry of Finze’s
guilty plea; researched the law regarding withdrawal of the guilty plea; reviewed
discovery; and considered the likelihood of success at trial. Third, replacement
counsel reasonably concluded that Finze was adamant about withdrawing his guilty
plea, so that replacement counsel properly focused on whether there was a viable
legal basis for withdrawing Finze’s guilty plea. Finally, replacement counsel’s
motion to withdraw Finze’s guilty plea and his argument at the hearing on that
motion show that he had adequately prepared to address the grounds on which the
motion to withdraw the guilty plea was actually premised.
To support his allegation that replacement counsel failed to advise him
adequately concerning withdrawal of his guilty plea, Finze seizes on statements in
replacement counsel’s affidavit that counsel believed that the decision about
whether or not to plead guilty is for the defendant, and that counsel did not
complete all of the research relevant to Finze’s possible trial defenses prior to
filing the motion to withdraw Finze’s guilty plea. However, neither statement
demonstrates that replacement counsel performed deficiently. See Jones v. Barnes,
463 U.S. 745, 751 (1983) (recognizing that the accused has the ultimate authority
to decide whether to plead guilty); see also Premo v. Moore, ___ U.S. ___, 131 S.
Ct. 733, 742 (2011) (urging caution in reviewing the performance of counsel at the
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pretrial stage of the proceedings when neither the prosecution nor the defense may
know with much certainty what course the case may take); Harrington v. Richter,
___ U.S. ___, 131 S. Ct. 770, 791 (2011) (“Strickland does not guarantee perfect
representation, only a ‘reasonably competent attorney.’” (quoting Strickland, 466
U.S. at 687 (internal quotation marks omitted)).
Finze also argues that replacement counsel’s affidavit shows that he filed the
motion to withdraw Finze’s guilty plea after consultation with and at the direction
of prior counsel. That argument mischaracterizes replacement counsel’s
explanation that Finze was adamant about withdrawing his guilty plea even after
Finze had a long consultation with prior counsel, and is contrary to other record
evidence that replacement counsel did do independent research and did consult
with Finze prior to filing the motion to withdraw Finze’s guilty plea. Thus,
replacement counsel did not perform deficiently: he did not rely solely on prior
counsel’s assessment.
Assuming, without deciding, that replacement counsel gave deficient advice
about the intent requirements of the charged offenses, we also consider whether
Finze is required to prove prejudice and whether he could do so, if required. Finze
cites to United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), to support his
contention that he should not be required to show prejudice. However, Gonzalez-
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Lopez is inapposite because that case dealt with a defendant’s right to choose his
lawyer. It did not deal with an ineffective assistance of counsel claim. In fact, the
Gonzalez-Lopez Court was aware of the difference between the two types of claims
and stated that “a violation of the Sixth Amendment right to effective
representation is not ‘complete’ until the defendant is prejudiced.” 548 U.S. at 147(emphasis in the original) (citing Strickland, 466 U.S. at 685).
Finze has not shown the required prejudice from counsel’s alleged
deficiency with respect to advice about intent requirements. The record contradicts
Finze’s contention that such allegedly faulty legal advice caused him to withdraw
his guilty plea. Rather, the transcripts of the proceedings relating to replacement of
counsel and the motion to withdraw Finze’s guilty plea conclusively show that
Finze was determined to withdraw his guilty plea before replacement counsel was
ever appointed on grounds that had nothing to do with replacement counsel’s
supposedly faulty advice about the intent requirements of the charged offenses.
Thus, he cannot show that it is “reasonably” or “substantially” likely that he would
not have withdrawn his guilty plea if replacement counsel had not allegedly
improperly advised him on the intent elements of the charged offenses. Richter,
___ U.S. at ___, 131 S. Ct. at 791-92.
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Regarding Finze’s claims that the district court should have held an
evidentiary hearing on this ineffective assistance of counsel claim, the district court
did set a hearing on Finze’s § 2255 motion, but Finze made no effort to call
witnesses or to present any other evidence to support his claims at that hearing. No
additional evidentiary hearing was required to resolve a conflict between Finze’s
conclusory allegations and counsel’s affidavit concerning what advice, if any,
replacement counsel gave Finze concerning withdrawal of his guilty plea or the
effect of any advice about the law that replacement counsel gave Finze on his
decision to withdraw his guilty plea. United States v. Johnson, 988 F.2d 941, 945
(9th Cir. 1993) (explaining that conclusory allegations do not warrant an
evidentiary hearing on a § 2255 motion).
Additionally, the judge who resolved Finze’s § 2255 motion also presided
over a hearing on Finze’s prior counsel’s motion to withdraw and replacement
counsel’s motion to withdraw Finze’s guilty plea, as well as the trial and Finze’s
sentencing. Because the issue was one of credibility, the judge had the discretion
to forego a hearing on Finze’s allegations and was entitled to rely on the record,
supplemented with discovery and documentary evidence, and his own notes,
recollections, and common sense. Shah v. United States, 878 F.2d 1156, 1159 (9th
Cir. 1989).
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More importantly, as noted above, the record conclusively shows that
Finze’s determination to withdraw his guilty plea had nothing to do with
replacement counsel’s supposedly faulty advice about the intent requirements of
the charged offenses. 28 U.S.C. § 2255(b) (explaining that no hearing is required
if the record “conclusively show[s]” no entitlement to relief). Finze’s present
characterization of the reasons that he withdrew his guilty plea is revisionist,
contrary to the record, and, thus, patently frivolous. United States v. Mejia-Mesa,
153 F.3d 925, 931 (9th Cir. 1998) (explaining that no evidentiary hearing is
required if, in light of the record, the movant’s allegations are “palpably incredible
or patently frivolous”).
Finally, no evidentiary hearing was required, because “the record
conclusively shows that [the] trial attorney was not ineffective.” United States v.
Burrows, 872 F.2d 915, 917 (9th Cir. 1989). The district court did not abuse its
discretion in not holding an evidentiary hearing on Finze’s claims regarding the
withdrawal of his guilty plea.
2. The central theme of Finze’s § 2255 Motion is that replacement
counsel gave him incorrect legal advice about and relied on an allegedly untenable
defense concerning the intent requirements for the charged offenses. Finze
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characterizes replacement counsel’s defense strategy as relying on Finze’s lack of
intent to break the law. The record conclusively shows otherwise.
Replacement counsel did remark in his opening statement at trial that it was
never Finze’s intent to do anything other than to sell drugs legitimately on the
internet. Nevertheless, a fair reading of the record is that replacement counsel’s
primary strategy was to argue that a co-defendant was responsible for the illegal
conduct of the internet pharmaceutical business, not a defense based on Finze’s
lack of intent. Also, replacement counsel’s “intent” defense, as formulated in his
closing argument, was not based on Finze’s lack of intent to break the law. Rather,
replacement counsel asserted that “intent” was required for criminal responsibility,
that there are various intents for the crimes charged, “but most importantly the first
one, [was] the intent to defraud the United States Government,” and that the
evidence showed that Finze did not intend to defraud the United States
Government. This is a far cry from a defense based on the argument that Finze did
not intend to break the law, and constituted a reasonable strategic or tactical
approach to Finze’s defense. Strickland, 466 U.S. at 690-91. Thus, replacement
counsel did not perform deficiently in asserting an allegedly untenable “intent”
defense, and the lack of deficient performance is dispositive of this claim. Id. at
687-88, 697.
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3. We conclude that none of Finze’s other numerous claims of
ineffective assistance of counsel warrant relief. Indeed, all of the challenged
conduct falls within the realm of essentially unchallengeable strategic or tactical
decisions, after reasonable investigation, which we decline to second guess.
Strickland, 466 U.S. at 690-91. We also observe that Finze’s command of
English—as demonstrated by his participation in various proceedings and his
assertions on the record that he did not need an interpreter—was such that
replacement counsel did not perform deficiently in failing to seek an interpreter for
him. See Gonzalez v. United States, 33 F.3d 1047, 1048 (9th Cir. 1994) (holding
that a defendant whose answers were consistently responsive and never indicated
to the court that he was experiencing major language difficulties despite the
opportunities afforded to him was not entitled to an interpreter under the provisions
of the Court Interpreters Act). Thus, none of these alleged errors, individually or
cumulatively, would render the trial so fundamentally unfair as to warrant relief.
See Parle v. Runnels, 505 F.3d 922, 927-28 (9th Cir. 2007).
4. Finally, Finze asserts that the forfeiture order must be overturned in
light of the Supreme Court’s recent ruling in United States v. Santos, 553 U.S. 507(2008), which he asserts held that forfeitable proceeds are properly defined as net
profits, not gross receipts. In United States v. Thiele, 314 F.3d 399, 400 (9th Cir.
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2002), we held that Ҥ 2255 is available to prisoners claiming the right to be
released from custody. Claims for others types of relief, such as relief from a
restitution order, cannot be brought in a § 2255 motion, whether or not the motion
also contains cognizable claims for release from custody.” 314 F.3d at 400.
Furthermore,
[C]ognizable claims in a § 2255 motion do not run
interference for non-cognizable claims. Claims seeking
release from custody can be brought under § 2255;
claims seeking other relief cannot. To determine whether
a given claim is cognizable under § 2255, we focus on
the relief sought in the claim itself, not on relief sought in
other claims mentioned elsewhere in the motion.
Id. at 402; see also Mamone v. United States, 559 F.3d 1209, 1201 (11th Cir. 2009)
(following Thiele to hold that “the presence of a cognizable claim against [a
petitioner’s] custodial punishment does not make . . . non-cognizable claims more
amenable to our review”). Finze’s forfeiture claim is not a cognizable § 2255
claim, because it does not seek release from custody, and his other claims for
release from custody “do not run interference” for his non-cognizable forfeiture
claim. Thiele, 314 F.3d at 402.
Nevertheless, Finze argues that United States v. Santos, 553 U.S. 507(2008), approved the exercise of jurisdiction under § 2255 to challenge a forfeiture
judgment. Not so. Santos involved a post-conviction challenge to a money-
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laundering conviction, not a challenge to forfeiture. See 553 U.S. at 510; see also
United States v. Bush, 626 F.3d 527, 534 (9th Cir. 2010) (“In post-conviction
habeas proceedings, Santos challenged the propriety of his money-laundering
conviction, claiming his transactions were [mere proceeds, rather than profits].”).
Because Finze’s forfeiture claim is limited to the constitutionality of his
forfeiture order, and is not a claim for release from custody, Thiele squarely blocks
his claim, notwithstanding the decision in Santos.
AFFIRMED.
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