Diaz Gallego v. United States

Opinion

USCA1 Opinion

September 26, 1994    [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 94-1148

RICARDO DIAZ-GALLEGO,

                                Defendant, Petitioner,

                                          v.

                              UNITED STATES OF AMERICA,

                                     Respondent.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                   [Hon. Gilberto Gierbolini, U.S. District Judge]
                                              ___________________

                                 ___________________

                                        Before

                               Torruella, Chief Judge,
                                          ___________
                           Cyr and Boudin, Circuit Judges.
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                                 ___________________

               Ricardo Diaz-Gallego on brief pro se.
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               Guillermo Gil,  United States  Attorney, and Jose  A. Quiles
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          Espinosa, Senior  Litigation  Counsel, United  States  Attorney's
          ________
          Office, on brief for respondent. 

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                                  __________________

Per  Curiam.     Ricardo  Diaz-Gallego  appeals the
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            denial  of his  motion to  vacate  a conviction  and sentence

            under 18 U.S.C.   2255.  We affirm.

                       Appellant  and several other persons were indicted

            in  May,  1987,  for  possession with  intent  to  distribute

            approximately  1700 kilograms  of cocaine  on board  a vessel

            subject  to  the  jurisdiction   of  the  United  States,  in

            violation of  46 U.S.C. App.    1903, and 18 U.S.C.    2.  He

            initially  pled not guilty, but then moved to change his plea

            to  guilty.  A joint hearing was  held on August 25, 1987, at

            which the district court accepted appellant's guilty plea, as

            well  as  the guilty  pleas  of  three of  his  codefendants.

            Appellant  was later  sentenced to forty  years in  prison, a

            ten-year term  of supervised release, and  a special monetary

            assessment of  $50.  He did  not appeal.  This    2255 motion

            was filed in September, 1989.

                      Appellant argues  that the district  court erred in

            declining to  hold an evidentiary hearing  on his application

            for post-conviction relief.  However, there is no presumption

            in  favor of  an evidentiary  hearing under    2255.   United
                                                                   ______

            States  v.  McGill, 11  F.3d  223,  225-26 (1st  Cir.  1993).
            ______      ______

            Rather,  the    2255  petitioner  bears the  usual  burden of

            persuading the  court that  his motion cannot  be effectively

            "heard" on the papers.   Id. at 225.  An  evidentiary hearing
                                     ___

            is unnecessary when the petitioner's allegations merely state

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conclusions instead of facts, are contradicted by the record,

            inherently incredible, or invalid as a matter of law.  Id. at
                                                                   ___

            226 (citations omitted); United  States v. Mosquera, 845 F.2d
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            1122, 1124 (1st Cir. 1988).  In addition where, as  here, a  

            2255 petition is  brought before the judge  who also presided

            at  the previous  proceedings,  the judge  may make  findings

            based  on  his  own  knowledge  of  the  proceedings  without

            convening an additional hearing.  McGill, 11 F.3d at 225.  
                                              ______

                      We  find  no  error  in  the  court's  decision  to

            dispense  with an  evidentiary  hearing under  this standard.

            There  was  also  no  error  in  the  court's  decision  that

            appellant's contentions, discussed  seriatim below, failed to
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            establish a  "fundamental defect" in the  plea and sentencing

            proceedings, or  any other  reason for  relief under    2255.

            See  Laliberte v.  United States,  25 F.3d  10, 13  (1st Cir.
            ___  _________     _____________

            1994)  (observing  that     2255 relief  is  available  after

            sentencing only  for "a fundamental  defect which  inherently

            results  in  a  complete  miscarriage  of  justice,"  or  "an

            omission inconsistent  with the  rudimentary demands of  fair

            procedure") (citations omitted).

                      First, appellant challenged the authenticity of the

            transcript of the  change of plea  hearing produced from  the

            government's  files.   In support,  appellant pointed  to the

            difficulties  which both he and the  court had experienced in

            obtaining a  copy of  the transcript.   On several  occasions

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beginning in November, 1989, the magistrate ordered the court

            reporter to produce  a copy of the transcript  for appellant,

            but the  reporter had  apparently misplaced  his notes.   The

            magistrate ultimately  obtained a  transcript,  and issued  a

            report in March,  1992.  Appellant, however,  alleged that he

            had not received a transcript copy, and petitioned this court

            for  a writ of mandamus  in January, 1993.   The government's

            response to the mandamus petition appended a transcript copy,

            along  with a  certificate  of  service,  so  we  denied  the

            petition on  the assumption that appellant  had thus received

            his copy. 

                      Nonetheless, appellant then  informed the  district

            court that he still had  not received the transcript.   In an

            abundance of caution the  court ordered the clerk to  send to

            appellant  yet  another  copy  of the  transcript  which  the

            government  had made available.   Appellant  finally conceded

            receipt  of  a  transcript   copy  thus  produced,  but  then

            objected,   without  further   specifics,  that  it   was  an

            "invention."  

                      While  the  delay  occasioned by  these  events  is

            troubling,   appellant's   generalized   objection   to   the

            authenticity  of  the transcript  is  refuted  by the  record

            facts.

            The  transcript which  the  government produced  included the

            court  reporter's  certification.    This  certification  was

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credited by the  district judge, who  had also presided  over

            the  change  of plea  hearing, as  prima  facie proof  of the

            authenticity and accuracy of the transcript.  See 28 U.S.C.  
                                                          ___

            753(b)  (1982)  (transcript  certified  by  designated  court

            reporter "shall be deemed prima  facie a correct statement of

            the testimony  and proceedings"); United States  v. Ochs, 548
                                              _____________     ____

            F.  Supp.   502  (S.D.N.Y.  1982)  (relying   upon  statutory

            presumption),  aff'd, 742  F.2d  1444 (2d  Cir. 1983),  cert.
                           _____                                    _____

            denied,  464 U.S. 1073 (1984).   In addition,  the origin and
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            accuracy of the transcript  is corroborated by docket entries

            which reflect that in June, 1989, the court reporter produced

            an  original  transcription  for  codefendant  Agressot-Coas.

            (Dkt.  124).   Both  Agressot-Coas  and codefendant  Padilla-

            Pallacios have  pursued appeals based on  seemingly identical

            transcript copies  without any  challenge to the  accuracy of

            its contents.   Since  the material  portions of the  hearing

            were  identical  for  all  three  defendants,  and  appellant

            offered  no  facts  to  the contrary,  the  district  court's

            reliance on  the reporter's certification, and presumably the

            court's own memory,  was not clearly erroneous.   See McGill,
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            11 F.3d at 223  n.2 (on a   2255  motion, fact-based findings

            are reviewed for clear error) (citations omitted).

                      Second, appellant attacked the validity of his plea

            and  sentence with  an allegation  that his  attorney falsely

            assured  him, or  the  government falsely  promised, that  he

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would be sentenced to no more than ten years in prison.  As a

            result, he claimed that his plea was involuntary, uninformed,

            and rendered without the effective assistance of counsel.  

                      The  existence  of  such  a  promise,  however,  is

            contradicted by  facts in  the record, including  appellant's

            own sworn  testimony and the  documents he filed.   Appellant

            signed a plea agreement which reserved the government's right

            to "allocution"  at  the time  of  sentencing, but  left  the

            sentence itself to the "sound discretion of the  court."   He

            acknowledged in open court  that he understood that  his plea

            agreement  in no way curtailed or diminished the power of the

            court to impose a penalty up to the maximum  provided by law.

            He  said that  he  understood  the  charge against  him,  the

            minimum and  maximum penalties of imprisonment  that might be

            imposed (ten years to  life), and swore that his  guilty plea

            was  not induced by any  outside predictions or prophesies of

            the ultimate sentence  to be  imposed.1  His  change of  plea

            was  accepted  only  after  a  thorough  exploration  of  all

            elements of a  knowing and voluntary  guilty plea under  Rule

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            1.  Appellant alleges that  he was misled by the  court's use
            of  the words "predictions" or  "prophecies."    He claims he
            would have  answered differently  had the court  instead used
            the word  "promises."   Whatever the  semantic possibilities,
            this  assertion, too,  is refuted by  the record  which shows
            that appellant specifically  denied any collateral "promises"
            when  he subsequently  completed the  written  plea petition.
            Moreover,  "we  have  never held  the  district  courts to  a
            formula  of magic words" in meeting  the requirements of Rule
            11."   United States v. Medina-Silverio, 1994 WL 364135 at *3
                   _____________    _______________
            (1st Cir. July 19, 1994).

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11.  Fed. R. Crim. P. 11; see Medina-Silverio, 1994 WL 364135
                                      ___ _______________

            (detailing core elements  required of a rule 11  colloquy and

            collecting   cases).      Appellant   then   reiterated   his

            understanding  of  the court's  full  authority, the  maximum

            penalty  that  might  be  imposed, and  the  absence  of  any

            collateral  promises, in  a written  plea petition  completed

            after  the hearing.    He also  omitted  any mention  of  the

            promise he now alleges when he appeared for sentencing. 

                   "A  defendant  is  ordinarily  bound  by  his  or  her

            representations  in  court   disclaiming  the  existence   of

            additional promises."  Bemis v. United States, 1994 WL 376057
                                   _____    _____________

            at  *2 (1st Cir. July 22, 1994) (citations omitted); see also
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            Hernandez-Hernandez v. United States,  904 F.2d 758, 762 (1st
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            Cir. 1990) (sworn Rule 11 statements are presumptively true);

            United States v.  Butt, 731 F.2d  75, 80 (1st  Cir. 1984)  (a
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            defendant  will  not be  heard  to  controvert  his  Rule  11

            statements in a subsequent    2255 motion unless he  offers a

            valid  reason for  departing from  the apparent truth  of his

            earlier statements). 

                      In  the absence  of unusual  facts that  might lend

            plausibility to appellant's belated  contradiction of his own

            sworn  testimony,  the court  did  not err  in  rejecting his

            conclusory   allegation   without  an   evidentiary  hearing.

            Compare  Bemis, slip  op. at  7-8 (in  unusual circumstances,
            _______  _____

            where   appellant  offered   affidavits   from   two   former

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prosecutors,   and  pointed  to  specific  supporting  facts,

            evidentiary hearing should be held); Hernandez-Hernandez, 904
                                                 _________ _________

            F.2d  at 762-63  (evidentiary  hearing should  be held  where

            petitioner supported his  claim with an  affidavit containing

            specific factual  detail as  well as  the affidavits  of five

            corroborating  witnesses).  Likewise, we see  no error in the

            court's conclusion,  after a thorough review,  that there was

            no support  in the record for  appellant's further allegation

            that but  for the alleged misrepresentation he would not have

            pled guilty.  See Hill v. Lockhart, 474 U.S. 52, 59-60 (1985)
                          ___ ____    ________

            (in  order to show "prejudice" from alleged counsel errors, a

            defendant must  show that  there is a  reasonable probability

            that  he would  not have pled  guilty but would  have gone to

            trial).

                      Third, appellant  argued that his  counsel rendered

            ineffective  assistance  after  the  change  of plea  hearing

            because  counsel did  not  attend the  subsequent  debriefing

            sessions,   "utterly  failed  to  assist  appellant"  at  the

            sentencing hearing, and did not rebut an alleged governmental

            representation that appellant's cooperation had been minimal.

Again, however, the record  contradicts appellant's

            factual assertions.  At the sentencing hearing counsel made a

            detailed  objection  to  the  presentence  report  based   on

            appellant's  "substantial  cooperation" with  the government.

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The  government  neither  denied  nor  minimized  appellant's

            cooperation,  but agreed with  counsel's representations, and

            the court  was thus persuaded to  take appellant's assistance

            into consideration.  Further,  the court invited appellant to

            speak  on his own behalf, but appellant indicated that he was

            content with his counsel's representations.  

                      The  district  judge,  who  had  presided  at  both

            hearings,   concluded   that   appellant    was   competently

            represented,  and  suffered  no  prejudice  due to  counsel's

            absence  from the  debriefings.   While  legal questions  are

            reviewed  de  novo,  a  claim of  ineffective  assistance  of
                      __  ____

            counsel  is a mixed question of  law and fact.  Strickland v.
                                                            __________

            Washington, 466  U.S. 668, 698 (1984).  When the mix is fact-
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            dominated,  as it  is here,  we necessarily  place relatively

            greater  reliance on the fact-finder.  See McGill, 11 F.3d at
                                                   ___ ______

            226  n.2  (observing  differences  in  courts' approaches  to

            review of ineffective assistance claims).  Further  deference

            is due  the  judge's  first-hand  observations  of  counsel's

            performance.    Id.  at 225.    Appellant  points to  nothing
                            ___

            suggesting  error in  the court's  conclusion  and we  see no

            error.

                      Lastly  appellant asserts  two  challenges  to  the

            statutory authority  for his sentence.   Neither argument was

            properly  preserved  for  appeal,   but  we  note  that  both

            contentions appear  foreclosed by  our  decisions in  related

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appeals  brought  by appellant's  codefendants.   In Padilla-
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            Palacios v. United States,  932 F.2d 31, 33 (1st  Cir. 1991),
            ________    _____________

            following the  Supreme Court's decision  in Gozlon-Peretz  v.
                                                        _____________

            United  States,   498  U.S.  395  (1991),   we  rejected  the
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            contention  that  the  district  court erred  in  imposing  a

            mandatory  term   of  supervised  release  for   this  crime,

            committed during  the "hiatus  period" between  two different

            versions  of the  federal  drug  law.    We  also  found,  in

            circumstances   indistinguishable    from   those   attending

            appellant's  plea, that  the  codefendant's rights  were  not

            otherwise  violated by  the  court's statement  at the  joint

            change of  plea hearing that  it would not  impose a  term of

            supervised release.   Padilla-Palacios, 932 F.2d  at 35.   In
                                  ________________

            United States v. Agressot-Coas, Dkt. no. 89-1187, slip op. at
            _____________    _____________

            9  n.  10 (1st  Cir.  May 23,  1990),  we rejected  the other

            statutory   challenge,   that   the  increased   imprisonment

            penalties in the  Anti-Drug Abuse  Act of 1986,  21 U.S.C.   

            960(b), did not apply to this crime.  Since the ADAA  penalty

            provision was enacted seven months before  the date that this

            crime  was committed, and there was no expression by Congress

            of a  contrary intent, we  concluded that the  district court

            had correctly applied the increased penalty provision in this

            case.   Accord Gozlon-Peretz, 498  U.S. at 404  (applying the
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            general  rule that statute takes effect  on date of enactment

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in  absence  of a  clear  contrary direction  by  Congress to

            interpretation of other provisions of ADAA).  

                      In  sum,  appellant  has demonstrated  neither  his

            entitlement to an  evidentiary hearing on,  nor error in  the

            denial of, the motion for relief under 28 U.S.C.   2255. 

                       Affirmed.
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