Digiorgi Alegre v. United States

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-1089

CARLOS A. DIGIORGI ALEGRE,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.

____________________

ERRATA SHEET

            The first  sentence of  the second  paragraph on page  11 in  this
        unpublished opinion dated August 31, 1992, is amended as follows:

            Replace  "prove his  innocence" with  "require the  government  to
        prove his guilt."August 31, 1992
                                [NOT FOR PUBLICATION]

____________________

No. 92-1089

                              CARLOS A. DIGIORGI ALEGRE,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
                                                ___________________

                                 ____________________

                                        Before

                               Torruella, Cyr and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Lydia Lizarribar-Masini on brief for appellant.
            _______________________
            Daniel F. Lopez-Romo, United States Attorney,  and Jorge E.  Vega-
            ____________________                               _______________
        Pacheco, Assistant United States Attorney, on brief for appellee.
        _______

____________________

____________________

Per   Curiam.         Carlos   A.   Digiorgi-Alegre
                      ____________

            ("Digiorgi") seeks  to invalidate his guilty  plea to charges

            of aiding and abetting the  distribution and sale of cocaine.

            28  U.S.C.   841(a)(1); 2 U.S.C.    2.  His petition under 28

            U.S.C.    2255 to set  aside his conviction  and sentence was

            dismissed  without  an  evidentiary  hearing.    This  appeal

            challenges the  district court's rejection of  his claim that

            ineffective  assistance   of   counsel  rendered   his   plea

            involuntary.  We affirm.

                                      BACKGROUND
                                      BACKGROUND
                                      __________

                 At the  change of plea hearing,  the government outlined

            its  case.   It  would show  that  on two  separate occasions

            Digiorgi, with the assistance of others, had sold cocaine  to

            a  federal  agent.    The  government  represented  that,  in

            addition to the testimony of an informant and  the undercover

            agent who  had consummated  the sales,  it had available  the

            following evidence: a record of conversations and photographs

            taken  at the  first  sale, video  recordings  of the  second

            larger sale  (involving a  kilogram of cocaine),  and another

            agent's testimony regarding Digiorgi's post-arrest statements

            as to how he had obtained the cocaine.

                  After detailed explication and cautions by the district

            judge,  Digiorgi admitted  that  he had  knowingly aided  and

            abetted another in the second cocaine sale.   He acknowledged

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his signature on and acceptance of  a written plea agreement1

            filed  with the court pursuant  to Rule 11(e)  of the Federal

            Rules of Criminal Procedure.   Digiorgi testified that no one

            had made any  other promise  which had induced  him to  plead

            guilty.  He said that he was fully cognizant of the nature of

            the charges  and the consequences2  of pleading guilty.   The

            court  accepted the  plea, and  three months  later sentenced

____________________

            1.  In  parts relevant  to  this appeal,  the plea  agreement
            indicated petitioner's understanding 1) of  the penalty range
            for  the offense to which  he would plead  guilty, namely the
            distribution  more than  500 grams  of cocaine,  21 U.S.C.   
            841(a)(1), 2) that the government would recommend the minimum
            sentence  in accordance  with  the sentencing  guidelines, 18
            U.S.C.   3551 et  seq., 3) that the government  would request
            the dismissal of petitioner's indictment on charges resulting
            from  the  first  cocaine sale,  and  4)  that  he could  not
            withdraw  his  plea  solely  on  the  basis of  the  sentence
            actually imposed.  
                 The plea  tendered carried a statutory  minimum sentence
            of five years and a maximum  sentence of forty years, a  fine
            not to  exceed two million dollars,  or both, plus a  term of
            supervised  release   of  at  least  four   years.    Section
            841(b)(1)(B)(ii)  also  states:  "Notwithstanding  any  other
            provision of law, the court shall not place on probation .  .
            . any  person sentenced under  this subparagraph.   No person
            sentenced  under  this  subparagraph shall  be  eligible  for
            parole during the term of imprisonment imposed therein."  See
                                                                      ___
            also  18 U.S.C.    3561(a)(2)  (Probation may not  be imposed
            ____
            when expressly precluded by statute.)

2.  The court engaged  in the following exchange at  the plea
            hearing:
                 COURT:  Mr. Digiorgi,  did  you hear  the Assistant
                 COURT
                 U.S.  Attorney  state  the penalty  range  for  the
                 offense to which you are pleading guilty?          
                           DEFENDANT: Yes.                          
                           DEFENDANT
                          COURT: And  do you understand, sir, that .
                          COURT
                 . . you are  not eligible for parole  or probation?
                 Are you aware of that?                             
                              DEFENDANT: Yes.
                              DEFENDANT
            Appellant's Appendix at 84-85.           

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Digiorgi, in accordance  with the negotiated plea  agreement,

            to  the statutory  minimum term  of  60 months,  a supervised

            release term of four years, and a mandatory penalty of $50.

                 One and  one-half years later Dogiorgi  filed this  2255

            motion.  It alleges,  inter alia,3 that his plea  was induced
                                  __________

            by his  attorneys' misrepresentations regarding  sentence and

            probation, and  was rendered involuntary because  his counsel

            did not  file a single motion or seek discovery in aid of his

            defense,  had  failed  to file  a  change  of  plea petition,

            pursuant to local rule,  as "ordered" by the  district court,

            and  had  advised him  prior  to  sentencing  using the  pre-

            sentence report of another  defendant in another case.    The
                               _______               _______

            motion  also alleged:  "The lack  of effective  assistance of

            counsel prejudiced  me as I was  made to take a  plea without

            proper legal representation, losing the  opportunity of going

            to trial to prove my innocence."  In an affidavit attached to

            the motion, Digiorgi's wife averred that she was present when

            his  attorney explained that a  guilty plea would  net only a

            sentence of probation.   If the  "correct sentence" had  been

            explained, the affidavit concluded, "we would not have agreed

            to  my  husband  accepting culpability."    Subsequently  the

            petitioner  filed   an  affidavit  in  Spanish,   but  it  is

            incomplete, unsigned, and untranslated in the record. 

____________________

            3.  We address only those allegations and issues preserved by
            appropriate objection  to the magistrate's  report and raised
            and argued on appeal.

                                         -5-

The government's  response and opposition to  the   2255

            motion  included  detailed  affidavits4  from  Digiorgi's two

            retained attorneys  who had represented  him from arraignment

            through sentencing.  Both attested that Digiorgi had admitted

            to them,  at the  outset, his  participation in  the offense.

            Each stated  that  they  had  met with  Digiorgi  on  several

            occasions  to discuss  and  evaluate  the discovery  material

            supplied by the government, including laboratory test results

            and  agents'  written  reports, as  well  as  the  results of

            attorney  interviews  with  the agents  in  the  case.   Both

            attorneys   denied  that  probation  was  offered  or  deemed

            probable.   Rather, the  plea agreement  was predicated  on a

            definite  term of incarceration to  be served.   Even so, the

            client was clearly  advised that the ultimate  decision as to

            sentence  was with  the  presiding judge,  regardless of  the

            recommendations   of  the  parties.     The  affidavits  also

            indicated that the government's reports were fully  discussed

            and translated prior  to the  change of plea,  and that  even

            though Digiorgi understood English,  he had an interpreter at

            the plea hearing.  The attorneys affirmed that Digiorgi fully

____________________

            4.  While  not  dispositive  of   the  ultimate  question  of
            attorney effectiveness,  see United States v.  Butt, 731 F.2d
                                     ___ _____________     ____
            75,  77-78   (1st  Cir.  1984),  such   "evidence  against  a
            petitioner's   extra-record   contentions    [may   be]    so
            overwhelming as to justify a conclusion that an allegation of
            a  dishonored plea  agreement  does not  raise a  substantial
            issue  of fact."  Blackledge v. Allison, 431 U.S. 63, 82 n.25
                              __________    _______
            (1977) (internal punctuation and attribution omitted).

                                         -6-

understood  the evidence  and  charges against  him, and  had

            accepted  the plea  agreement as  preferable  to the  risk of

            trial.    They maintained  that  pre-trial  motions had  been

            deemed  unnecessary  because, early  on,  the government  had

            provided  full  discovery,  and  because  Digiorgi,  who  was

            arrested during  the offending  transaction, had  provided no

            evidence  in his own defense.   In reply, petitioner, without

            more, moved for a hearing.  

                 A  magistrate found that  the record belied petitioner's

            assertions  that he  was misinformed  about the  penalties he

            would incur if  he pled  guilty, and concluded  that even  if

            counsels'   performance    was   otherwise   constitutionally

            inadequate  under  Strickland  v. Washington,  446  U.S.  668
                               __________     __________

            (1984),  the  petitioner  had  failed to  show  a  reasonable

            probability  that, absent  those  errors, he  would not  have

            pleaded guilty.  Hill v. Lockhart,  474 U.S. 52 (1985).   The
                             ____    ________

            remaining  grounds  for  relief  were  deemed  frivolous, and

            dismissal was recommended.  The district court agreed. 

                                      DISCUSSION
                                      DISCUSSION
                                      __________

                 To  begin, in  order  for a  plea  to be  voluntary  and

            knowing  in  a  constitutional  sense, a  defendant  must  be

            "fairly apprised of its consequences."  Mabry v. Johnson, 467
                                                    _____    _______

            U.S.  504, 509  (1984).   Normally, the  plea and  sentencing

            proceeding records  interpose   "a formidable barrier  in any

            subsequent  collateral proceeding", and the statements of the

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defendant and his lawyer at such a hearing are presumed to be

            true.   Blackledge v. Allison,  431 U.S. 63,  74 (1977) ("The
                    __________    _______

            subsequent presentation of conclusory allegations unsupported

            by specifics is  subject to summary  dismissal. . . .")   The

            initial "critical  question" is  whether petitioner's    2255

            allegations, when  measured against the record  are "palpably

            incredible"  or "palpably  frivolous or  false".   Id.  at 76
                                                               ___

            (attributions  omitted).    For      2255  purposes,  summary

            dismissal  is permitted  when such  allegations even  if true

            would  not  entitle  the  petitioner  to relief,  or,  as  we

            conclude  is the case here,  when they cannot  be accepted as

            true because "they are contradicted by the record, inherently

            incredible, or  conclusions rather than statements  of fact."

            Dziurgot  v. Luther,  897  F.2d 1222,  1225  (1st Cir.  1990)
            ________     ______

            (attribution omitted).  

                 To  set  aside  his  plea,  Digiorgi  must  allege,  and

            ultimately prove, not only that his counsels'  representation

            fell below an objectively  reasonable standard, but also show
                                                                ____

            it  likely that  that constitutionally  deficient performance

            actually affected the outcome  of the plea process.   Hill v.
                                                                  ____

            Lockhart, 474 U.S. at 57-59.
            ________

                                          I
                                          _

                 As  to   the   first  Hill   requirement,   petitioner's
                                       ____

            allegations fail to state a claim of attorney incompetence:

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a. Digiorgi's contentions  that his counsel  misinformed

            him   about sentence and probation do not withstand scrutiny.

            Specifically, his  claim was that "the  Government had agreed

            to a suspended sentence and that if I did not  accept [guilt]

            I   would   get  a   sentence   of   ten  years   to   life."

            Contemporaneous with the plea change, however, Digiorgi filed

            a written  plea agreement  indicating his awareness  that the

            statutory minimum term of five years would  be recommended by

            the  government.   At  the  plea  hearing  he  said  that  he

            understood the  penalty range and  sentencing guidelines  for

            the offense to  which he  pleaded guilty.   In addition,  the

            district  court specifically  informed  him that  he was  not

            eligible for probation or parole.  See note 1.  At sentencing
                                               ___

            three month  later, in  arguing for  the minimum  sentence of

            five years, petitioner's  attorney stated  that Digiorgi  "is

            well aware that there is no probation in this case."   

                 Digiorgi  attempted  to  cast  doubt  on  the   presumed

            regularity  of   the  plea  hearing  by   filing  his  wife's

            affidavit.   She  attested  to witnessing  a conversation  in

            which  her husband's attorney  stated that a  guilty plea was

            the best  decision as the  only sentence would  be probation.

            These assertions,  filed almost one and  one-half years after

            sentencing,  are countered, by  the express denials contained

            in the affidavits of both counsel, and are  also contradicted

            by Digiorgi's assurances at  the plea colloquy.  There  is no

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sworn  statement  by the  petitioner detailing  his attorneys

            alleged misrepresentations to  him.  In sum, the  records and

            files in the case  reliably show that Digiorgi knew  what the

            government would recommend and which sentence the court could

            impose. Petitioner's claimed reliance on probation is clearly

            refuted by the record.

                 b.

II
                                          __

                 Second, to survive dismissal, Digiorgi must sufficiently

            allege  prejudice, i.e., that with adequate representation he
                                               ________

            would  not have changed his  plea and would  have insisted on

            going  to trial.   Hill,  474 U.S.  at  60; United  States v.
                               ____                     ______________

            Giardino, 797 F.2d 30, 31  (1st Cir. 1986).  Thus, even if we
            ________

            assume, arguendo,  that everything Digiorgi says  is true and
                    ________

            that, despite the present state of the record, he could prove

            that his  counsel were incompetent, he  nonetheless bears the

            additional   burden   to  show   that   "but  for   counsel's

            unprofessional  errors, the  result of  the  proceeding would

            have  been differest."   Strickland  v. Washington,  466 U.S.
                                     __________     __________

            668, 694 (1984).  

                 Here,  Digiorgi  alleges, or  rather, concludes  that by

            pleading  guilty he lost the  opportunity to go  to trial and

            require  the government  to  prove his  guilt.   He  has  not

            alleged  that he would have  withheld his guilty  plea had he

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known that  probation was  unavailable.  Hill  requires that:
                                                     ____

            "in  order  to  satisfy  the  'prejudice'   requirement,  the

            defendant must  show that  there is a  reasonable probability

            that,  but for  counsel's errors, he  would not  have pleaded

            guilty and would  have insisted on going to trial."  474 U.S.

            at  59.   Digiorgi's recent  marriage, the  only circumstance

            alleged  to support  particular  reliance  upon probation  in

            deciding  to  plead  guilty,  presumably remains  an  equally

            plausible  reason  to plead  guilty  even  when probation  is

            unavailable.  Petitioner offers no other  reason why he would

            have risked  trial  and a  higher  penalty exposure  had  his

            counsel correctly informed him in that regard.  

                 But even allowing that Digiorgi had sufficiently alleged

            the prejudice prong of Hill  v. Lockhart, the record presents
                                   ____     ________

            a  barrier   that  conclusively  undermines   any  reasonable

            probability that  petitioner would have insisted  on going to

            trial.  

Digiorgi  now contends that he  was induced to  enter a plea

            because of misrepresentations made  by his retained counsel. 

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