Anthony Gringeri v. United States

2015 DNH 231

• Court: District Court, D. New Hampshire
• Decided: December 18, 2015
• Docket: 15-cv-281-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Anthony Gringeri

v. Case No. 15-cv-281-SM Opinion No. 2015 DNH 231 United States of America

O R D E R

Petitioner filed a Reply to the Government’s Opposition

(document no. 7), but it was received and docketed after the

order resolving his petition was issued. The court will consider

the reply as a motion to reconsider, and, having reconsidered the

matter, reaffirms the previous resolution, but with some added

clarification.

Petitioner vacillates between asserting that defense counsel

told him he had a “binding” plea agreement calling for no more

than 6 months in prison, on the one hand, and claiming that

“I was agreeing to a deal that [counsel] said I would probably

get probation, but at worst up to 6 months” (emphasis added), on

the other hand. Petitioner’s Reply to the Government’s

Opposition, document no. 7, p. 4. The former claim has been

addressed in the prior order, and the latter variation also

warrants no relief. “[A]n inaccurate prediction about sentencing

will generally not alone be sufficient to sustain a claim of ineffective assistance of counsel.” Knight v. United States, 37

F.3d 769, 775 (1st Cir. 1994); see also United States v.

Pallotta, 433 F.2d 594, 595 (1st Cir. 1970) (“A mere prediction

by counsel of the court’s likely attitude on sentence, short of

some implication of an agreement or understanding, is not ground

for attacking a plea.”) (internal quotation marks omitted). As

noted earlier, petitioner’s claim of an “understanding or

agreement” different from the one he acknowledged under oath

during the plea colloquy is both not credible and contradicted by

the record.

With regard to his ineffective assistance claim related to

counsel’s failure to file an appeal, petitioner elaborates

somewhat in his reply (document no. 7, p. 2) stating, “My

attorney told me immediately after the [sentencing] hearing that

he would appeal.” But again, at no point does petitioner

suggest, much less assert, that he gave counsel “specific

instructions” to file a notice of appeal. See Roe v. Flores-

Ortega, 528 U.S. 470, 477 (2000). And, for additional reasons,

no constitutional violation in that regard is described in the

petition. First, the conviction here followed a guilty plea, the

sentence imposed was completely consistent with that contemplated

by the plea agreement (i.e., petitioner received the sentence he

bargained for), and the plea agreement included explicit waivers

2 (with limited exceptions) of petitioner’s rights to appeal or

seek collateral review.

In this circuit an appeal waiver provision in a plea

agreement will be enforced if: 1) the waiver provision is clearly

set forth in the plea agreement; 2) the district court questions

the defendant “specifically about [his] understanding of the

waiver provision and adequately inform[s] [him] of its

ramifications;” and 3) no miscarriage of justice will otherwise

result. United States v. Chandler, 534 F.3d 45, 49 (1st Cir.

2008) (citations).

Here, all of those requisite elements are present: the

waiver provisions are clearly set forth in the plea agreement;

petitioner was specifically questioned about his understanding of

the waiver provisions and was adequately informed about their

consequences; and he confirmed his understanding of the waiver

provisions. Given his adoption of the prosecutor’s inculpatory

factual recitation, as well as the absence of any credible

suggestion of actual innocence in the petition, no miscarriage of

justice would result from enforcing the waiver provisions.

Accordingly, the appeal and collateral review waivers are valid

and enforceable.

3 It is highly doubtful that counsel’s failure to note an

appeal, given that waiver, could constitute ineffective

assistance.1 First, petitioner knowingly and voluntarily waived

his right to appeal and, while there are exceptions to that

waiver, petitioner does not assert any facts that might bring the

appeal he now seeks within an exception. So, counsel was not

free, of course, to unilaterally file an appeal in violation of

the plea agreement’s terms. Even if petitioner had actually

directed him to do so, counsel’s duty to file an appeal would be

doubtful in this case, for “a lawyer has a duty to the judiciary

to avoid frivolous litigation — and an appeal in the teeth of a

valid waiver is frivolous.” See e.g. Nunez, 546 F.3d at 455.

1 While there appears to be a split among the circuits, the better approach with respect to such ineffective assistance claims in cases involving a waiver of appeal rights, is to first review the waiver of appeal provisions in the plea agreement to determine whether the waivers are enforceable, and, if so, as they are here, to then consider the ineffective assistance claim (i.e., failure to note an appeal) in that context. Compare e.g. United States v. Poindexter, 492 F.3d 263, 273 (4th Cir. 2007); United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007) with United States v. Mabry, 536 F.3d 231, 240 (3d Cir. 2008); Nunez v. United States, 546 F.3d 450 (7th Cir. 2008); see also Flores- Ortega, 528 U.S. at 488 n.1 (Souter, J. concurring in part and dissenting in part) (“there is no claim here that Flores-Ortega waived his right to appeal as part of his plea agreement”). Our court of appeals has not yet addressed the specific issue, but that same approach has been taken by other district courts in the First Circuit. See United States v. Falcon, 2011 WL 777852 (D.R.I. February 28, 2011) (collecting cases); Agosto v. United States, 2012 WL 3518130 (D. Mass. August 15, 2012).

4 The reply, construed as a motion to reconsider, is granted

in that the court has reconsidered the matter, but for the

reasons given, the prior order resolving the petition stands and

relief on motion to reconsider is denied.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

December 18, 2015

cc: Anthony Gringeri, pro se Seth R. Aframe, AUSA