UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Anthony Gringeri
v. Case No. 15-cv-281-SM Opinion No. 2015 DNH 228 United States of America
O R D E R
Based upon his plea to an information, petitioner was found
guilty of mail fraud, in violation of 18 U.S.C. § 1341. He now
seeks relief from his conviction and sentence on grounds that his
plea was improvident, claiming it was based upon fraud
perpetrated by his defense counsel.
A prisoner may seek post conviction relief from a federal
court conviction pursuant to 28 U.S.C. § 2255 if the sentence
(1) was imposed in violation of the Constitution, or (2) was
imposed by a court that lacked jurisdiction, or (3) exceeded the
statutory maximum, or (4) was otherwise subject to collateral
attack. 28 U.S.C. § 2255(a). Such allegations of error must
“reveal fundamental defect[s] which, if uncorrected, will result
in a complete miscarriage of justice” and cannot be a “surrogate
for a direct appeal.” David v. United States, 134 F.3d 470, 474
(1st Cir. 1998) (internal citations and quotation marks omitted).
Once a prisoner requests relief under section 2255, a district court must grant an evidentiary hearing unless “the motion and
the files and records of the case conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see
also Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007). If
a district court dismisses a section 2255 claim without holding
an evidentiary hearing, the allegations set forth in the petition
are taken as true unless “‘those allegations are merely
conclusory, contradicted by the record, or inherently
incredible.’” Owens, 483 F.3d at 57 (quoting Ellis v. United
States, 313 F.3d 636, 641 (1st Cir. 2002)); see also United
States v. Crooker, 729 F.2d 889, 890 (1st Cir. 1984). Under a
2255 motion to vacate, dismissal is warranted if the allegations
made are “palpably incredible” or “patently frivolous or false.”
Blackledge v. Allison, 431 U.S. 63, 76 (1977) (internal citation
and quotation marks omitted); see also Barrett v. United States,
965 F.2d 1184, 1186 (1st Cir. 1992) (summary dismissal is
appropriate when petition is inadequate on its face or is
conclusively refuted by the files and records of the case);
Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir. 1990)
(allegations cannot be accepted as true if “they are contradicted
by the record, inherently incredible or conclusions rather than
statements of facts”).
2 In this case the record shows that petitioner is not
entitled to habeas relief for the reasons articulated in the
government’s response, particularly because his current claims
are forcefully contradicted by the record and his own sworn
statements.
Petitioner claims that his attorney duped him by having him
sign a plea agreement that called for a “binding” sentence of 0-6
months in prison, after which counsel surreptitiously replaced
that agreement with another calling for a prosecutorial
recommendation of a sentence at the low-end of the applicable
Guidelines Sentencing Range (“GSR”) (21 months). Petitioner also
generally alludes to a failure by counsel to note an appeal
(i.e., he suggests that at some point after sentencing he thought
an appeal was pending and/or counsel told his family and friends
that an appeal was pending), but he does not assert that he
directed counsel to note an appeal. Nor does he assert that
counsel failed to consult him about an appeal despite reason to
think that either: (1) a rational defendant would want to appeal;
or (2) petitioner was interested in appealing his conviction and
sentence, and, (3) but for counsel’s deficient conduct in that
regard, he would have timely appealed. See Roe v. Flores-Ortega,
528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000).
Parenthetically, the court notes that, subject to certain
3 limitations, the plea agreement waives defendant’s rights to
appeal and collaterally challenge his conviction or sentence, and
defendant acknowledged understanding those waivers during the
plea colloquy.
With respect to his substituted plea agreement and
concomitant improvident plea claim, the record is clear:
Petitioner stated under oath during the plea colloquy, inter
alia, that: he understood the provisions of the plea agreement as
filed with and described to him by the court; he reviewed each
provision of the written agreement with counsel; he agreed that
the prosecutor’s inculpatory factual recitation was accurate; he
acknowledged that he was pleading guilty because he was in fact
guilty; he understood the sentence would be based on a
calculation of the Guideline Sentencing Range; he understood the
imposed sentence could be higher or lower than that recommended
by the properly calculated Guideline Sentencing Range; the
government would, under the terms of his plea agreement, be
recommending a sentence at the low end of the applicable GSR, but
the court was not bound by that recommendation; he was knowingly
waiving his rights to trial and appeal (with exceptions), and
wished to plead guilty; and he was fully satisfied with defense
counsel’s advice and the representation provided.
4 At sentencing the government argued for a low-end of the
range sentence, specifically mentioning 21 months: “[C]onsistent
with the plea agreement and based on the facts of this case we
recommend 21 months of incarceration.” Defense counsel also
argued, consistently with the terms of the plea agreement, for a
low-end sentence: “I am asking, your Honor, basically that the
low end of the Guidelines of 21 months be adopted with supervised
release.” Defendant did not raise any question regarding the
government’s sentencing recommendation, his own counsel’s
sentencing recommendation, or the pre-sentence investigation
report’s disclosure of the applicable GSR. Nor did he contradict
counsel’s representation that he had reviewed the presentence
investigation report with defendant. And, when given an
opportunity to make any statement he wished prior to the
imposition of sentence, petitioner said nothing about the 21-
month sentence recommended by both the Government and his
counsel. Instead, petitioner merely stated, “I’d just like to
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Anthony Gringeri
v. Case No. 15-cv-281-SM Opinion No. 2015 DNH 228 United States of America
O R D E R
Based upon his plea to an information, petitioner was found
guilty of mail fraud, in violation of 18 U.S.C. § 1341. He now
seeks relief from his conviction and sentence on grounds that his
plea was improvident, claiming it was based upon fraud
perpetrated by his defense counsel.
A prisoner may seek post conviction relief from a federal
court conviction pursuant to 28 U.S.C. § 2255 if the sentence
(1) was imposed in violation of the Constitution, or (2) was
imposed by a court that lacked jurisdiction, or (3) exceeded the
statutory maximum, or (4) was otherwise subject to collateral
attack. 28 U.S.C. § 2255(a). Such allegations of error must
“reveal fundamental defect[s] which, if uncorrected, will result
in a complete miscarriage of justice” and cannot be a “surrogate
for a direct appeal.” David v. United States, 134 F.3d 470, 474
(1st Cir. 1998) (internal citations and quotation marks omitted).
Once a prisoner requests relief under section 2255, a district court must grant an evidentiary hearing unless “the motion and
the files and records of the case conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see
also Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007). If
a district court dismisses a section 2255 claim without holding
an evidentiary hearing, the allegations set forth in the petition
are taken as true unless “‘those allegations are merely
conclusory, contradicted by the record, or inherently
incredible.’” Owens, 483 F.3d at 57 (quoting Ellis v. United
States, 313 F.3d 636, 641 (1st Cir. 2002)); see also United
States v. Crooker, 729 F.2d 889, 890 (1st Cir. 1984). Under a
2255 motion to vacate, dismissal is warranted if the allegations
made are “palpably incredible” or “patently frivolous or false.”
Blackledge v. Allison, 431 U.S. 63, 76 (1977) (internal citation
and quotation marks omitted); see also Barrett v. United States,
965 F.2d 1184, 1186 (1st Cir. 1992) (summary dismissal is
appropriate when petition is inadequate on its face or is
conclusively refuted by the files and records of the case);
Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir. 1990)
(allegations cannot be accepted as true if “they are contradicted
by the record, inherently incredible or conclusions rather than
statements of facts”).
2 In this case the record shows that petitioner is not
entitled to habeas relief for the reasons articulated in the
government’s response, particularly because his current claims
are forcefully contradicted by the record and his own sworn
statements.
Petitioner claims that his attorney duped him by having him
sign a plea agreement that called for a “binding” sentence of 0-6
months in prison, after which counsel surreptitiously replaced
that agreement with another calling for a prosecutorial
recommendation of a sentence at the low-end of the applicable
Guidelines Sentencing Range (“GSR”) (21 months). Petitioner also
generally alludes to a failure by counsel to note an appeal
(i.e., he suggests that at some point after sentencing he thought
an appeal was pending and/or counsel told his family and friends
that an appeal was pending), but he does not assert that he
directed counsel to note an appeal. Nor does he assert that
counsel failed to consult him about an appeal despite reason to
think that either: (1) a rational defendant would want to appeal;
or (2) petitioner was interested in appealing his conviction and
sentence, and, (3) but for counsel’s deficient conduct in that
regard, he would have timely appealed. See Roe v. Flores-Ortega,
528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000).
Parenthetically, the court notes that, subject to certain
3 limitations, the plea agreement waives defendant’s rights to
appeal and collaterally challenge his conviction or sentence, and
defendant acknowledged understanding those waivers during the
plea colloquy.
With respect to his substituted plea agreement and
concomitant improvident plea claim, the record is clear:
Petitioner stated under oath during the plea colloquy, inter
alia, that: he understood the provisions of the plea agreement as
filed with and described to him by the court; he reviewed each
provision of the written agreement with counsel; he agreed that
the prosecutor’s inculpatory factual recitation was accurate; he
acknowledged that he was pleading guilty because he was in fact
guilty; he understood the sentence would be based on a
calculation of the Guideline Sentencing Range; he understood the
imposed sentence could be higher or lower than that recommended
by the properly calculated Guideline Sentencing Range; the
government would, under the terms of his plea agreement, be
recommending a sentence at the low end of the applicable GSR, but
the court was not bound by that recommendation; he was knowingly
waiving his rights to trial and appeal (with exceptions), and
wished to plead guilty; and he was fully satisfied with defense
counsel’s advice and the representation provided.
4 At sentencing the government argued for a low-end of the
range sentence, specifically mentioning 21 months: “[C]onsistent
with the plea agreement and based on the facts of this case we
recommend 21 months of incarceration.” Defense counsel also
argued, consistently with the terms of the plea agreement, for a
low-end sentence: “I am asking, your Honor, basically that the
low end of the Guidelines of 21 months be adopted with supervised
release.” Defendant did not raise any question regarding the
government’s sentencing recommendation, his own counsel’s
sentencing recommendation, or the pre-sentence investigation
report’s disclosure of the applicable GSR. Nor did he contradict
counsel’s representation that he had reviewed the presentence
investigation report with defendant. And, when given an
opportunity to make any statement he wished prior to the
imposition of sentence, petitioner said nothing about the 21-
month sentence recommended by both the Government and his
counsel. Instead, petitioner merely stated, “I’d just like to
apologize to [the victim] and to the U.S. Government.”
Petitioner’s current claim — that his defense counsel had
him sign a “binding” plea agreement for a sentence of 0-6 months
and then later switched the pertinent pages, or the entire
agreement, to reflect a non-binding agreement for a low-end GSR
recommendation, unbeknownst to him, and that, necessarily, his
5 contrary representations during the plea colloquy were false — is
“palpably incredible,” and, critically, is plainly contradicted
by the record.
Petitioner’s current claims are entirely inconsistent with
his sworn statements at the plea hearing, which statements are
entitled to a presumption of truthfulness. Nothing in the
petition or in the record discloses a “credible, valid reason[]
why a departure from those earlier contradictory statements is
now justified.” United States v. Butt, 731 F.2d 75, 80 (1984);
see also United States v. Pulido, 566 F.3d 52, 58-62 (1st Cir.
2009); United States v. Torres-Rosario, 447 F.3d 61, 67 (1st Cir.
2006) (holding that a court is “entitled to give weight to [the
defendant’s] assurances at his change of plea [colloquy] absent a
good reason for discarding them.”); Blackledge v. Allison, 431
U.S. 63, 74, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977) (a
defendant’s “declarations in open court carry a strong
presumption of verity”). Unsupported, conclusory, highly
improbable, claims that are plainly contradicted by the record of
petitioner’s own sworn statements and behavior warrant neither a
hearing nor relief.
As the petition, and the files and records of the case
conclusively show that the petitioner is entitled to no relief,
6 the petition (document no. 1) is denied. The court declines to
issue a certificate of appealability, but petitioner may seek a
certificate from the Court of Appeals under Federal Rule of
Appellate Procedure 22. See Rule 11, Federal Rules Governing
Section 2255 Proceedings. The Clerk of Court shall enter
judgment in accordance with this order and close the case.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
December 10, 2015
cc: Anthony Gringeri, pro se Seth R. Aframe, AUSA