Hanna v. United States

Opinion

USCA1 Opinion

March 27, 1995
                                [Not for Publication]
                                [Not for Publication]

                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 94-1693

                                    GEBRAN HANNA,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Douglas P. Woodlock, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                              and Stahl, Circuit Judge.
                                         _____________

                                 ____________________

            Salvatore C. Adamo for appellant.
            __________________
            Kevin  P. McGrath,  Assistant United  States Attorney,  with  whom
            _________________
        Donald K. Stern, United States Attorney, was on brief for appellee.
        _______________

____________________

____________________



STAHL,  Circuit Judge.    Petitioner  Gebran  Hanna
                      STAHL,  Circuit Judge.
                              _____________

            appeals from the dismissal without hearing of his 28 U.S.C.  

            2255 motion  to vacate, set  aside, or correct  his sentence.

            We affirm.

                                          I.
                                          I.
                                          __

                                      Background
                                      Background
                                      __________

                      Pursuant to  a plea agreement with  the government,

            on  February 19, 1993, just  three days before  his trial was

            scheduled to begin, petitioner pled guilty to two counts of a

            superseding indictment.1   Count One  charged petitioner  and

            nine other defendants with conspiring, between March 1988 and

            August  1991, to  import  hashish from  Beirut, Lebanon  into

            Boston, Massachusetts,  in violation  of 21 U.S.C.     952(a)

            and  963.   Count  Two  charged  petitioner and  three  other

            defendants  with  conspiring   to  possess  with  intent   to

            distribute,  and to  distribute, hashish  in violation  of 21

            U.S.C.    841(a) and 846.

                      The  district  court  departed  below  the  minimum

            mandatory sentence and sentenced  petitioner to eight  years'

            imprisonment,  plus five  years of  supervised release  and a

____________________

            1.  On August 26, 1991, petitioner and others were charged in
            a two-count indictment with one count of conspiracy to import
            hashish and one count  of conspiracy to possess hashish  with
            the intent  to distribute it.   On  January 31, 1992,  a six-
            count superseding indictment  was filed, charging  petitioner
            with  the same  two  conspiracy counts  plus two  additional,
            related  substantive counts.    Eleven other  defendants were
            charged in various counts of the superseding indictment.

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                                          2



special assessment  of $100.00.   Petitioner did  not appeal.

            On February  14,  1994, petitioner  sought collateral  relief

            pursuant  to   2255, which  the district court  denied.  This

            appeal followed.

                                         II.
                                         II.
                                         ___

                                      Discussion
                                      Discussion
                                      __________

                      Section  2255 provides  that federal  prisoners may

            file a motion  in the  "court which imposed  the sentence  to

            vacate,  set aside  or  correct the  sentence."   To  receive

            relief,  a  petitioner  must  establish  a  jurisdictional or

            constitutional error, "a fundamental defect  which inherently

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

            omission inconsistent  with the  rudimentary demands  of fair

            procedure."  Hill v. United States, 368 U.S. 424, 428 (1962).
                         ____    _____________

A.  Failure to Hold a Hearing
            _____________________________

                      Petitioner first  argues  that the  district  court

            abused  its  discretion by  failing  to  hold an  evidentiary

            hearing  to consider  his    2255  motion.   In  making  this

            argument, petitioner  primarily relies  on the language  of  

            2255, which provides, in pertinent part:  

                      Unless  the  motion  and  the  files  and
                      records  of  the  case conclusively  show
                      that  the  prisoner  is  entitled  to  no
                      relief,  the  court  shall  cause  notice
                      thereof  to  be  served upon  the  United
                      States attorney, grant  a prompt  hearing
                                       ________________________
                      thereon,  determine  the issues  and make
                      _______

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findings of fact  and conclusions of  law
                      with respect thereto.

          28 U.S.C.   2255 (emphasis added).

                      We have previously held that   2255 does not create a

          special presumption in favor  of an evidentiary hearing.   United
                                                                     ______

          States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).  A hearing is
          ______    ______

          not necessary  "`when a    2255 motion (1)  is inadequate  on its

          face, or  (2) although facially adequate  is conclusively refuted

          as  to the alleged facts by the  files and records of the case.'"

          Id.   at 225-26 (quoting Moran v. Hogan, 494 F.2d 1220, 1222 (1st
          ___                      _____    _____

          Cir. 1974)).   "In  other words,  a   2255  motion may  be denied

          without a hearing as  to those allegations which, if  accepted as

          true,  entitle the  movant to  no  relief, or  which need  not be

          accepted as true because they state conclusions instead of facts,

          contradict the record, or are inherently incredible."  McGill, 11
                                                                 ______

          F.3d at 226 (quotation and citation omitted).

                      When  a  petition  is  brought  under     2255,  "the

          petitioner  bears  the burden  of  establishing the  need  for an

          evidentiary hearing."  Id. at 225.  This burden is more difficult
                                 ___

          when the  petition is presented to  the trial judge, for  in such

          circumstances "the judge  is at liberty  to employ the  knowledge

          gleaned during  previous  proceedings  and  make  findings  based

          thereon without convening an additional hearing."  Id. 
                                                             ___

                      Judge Woodlock presided  over petitioner's case  from

          the beginning, including his   2255 motion.  Because we agree, as

          explained below, that none of petitioner's stated grounds entitle

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him  to relief, we hold that there  was no abuse of discretion in

          not holding an evidentiary hearing.

          B.  Guilty Plea:  Knowing and Voluntary?
          ________________________________________

                      Petitioner  argues  that  during  the  change-of-plea

          hearing, the district court failed to explain the consequences of

          a guilty plea, specifically  its permanence, its maximum possible

          penalty, whether it  carried a fine,  and its supervised  release

          term.  Petitioner argues that such failure violated Fed. R. Crim.

          P. 11(c),2 and that because of such failure,  his guilty plea was

____________________

            2.  Fed. R. Crim. P. 11(c) provides:
                      "Advice to  Defendant.  Before accepting  a plea of
                       Advice to  Defendant.
            guilty  or  nolo  contendere,  the  court  must  address  the
            defendant personally  in open court and  inform the defendant
            of,  and   determine  that  the  defendant  understands,  the
            following:
                      "(1)  the nature of the charge to which the plea is
            offered, the  mandatory minimum  penalty provided by  law, if
            any,  and  the  maximum  possible penalty  provided  by  law,
            including  the effect  of  any special  parole or  supervised
            release term, the fact that the court is required to consider
            any  applicable  sentencing  guidelines but  may  depart from
            those   guidelines  under   some  circumstances,   and,  when
            applicable,  that the court  may also order  the defendant to
            make restitution to any victim of the offense; and
                      "(2)  if the  defendant  is not  represented by  an
            attorney, that the defendant has  the right to be represented
            by  an  attorney at  every stage  of  the proceeding  and, if
            necessary, one will be  appointed to represent the defendant;
            and
                      "(3) that the  defendant has the right to plead not
            guilty or  to persist in  that plea  if it  has already  been
            made, the right to be tried  by a jury and at that trial  the
            right to the assistance of counsel, the right to confront and
            cross-examine  adverse  witnesses,   and  the  right  against
            compelled self-incrimination; and
                      "(4) that if a plea of guilty or nolo contendere is
            accepted by the  court there will  not be a further  trial of
            any kind, so that  by pleading guilty or nolo  contendere the
            defendant waives the right to a trial; and

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                                          5



"unknowing."   The  government concedes  that the  district court

          "did not explicitly state the maximum penalties that [petitioner]

          faced   at  the   change-of-plea   hearing,"  but   argues   that

          petitioner's plea was still knowing and voluntary.

                      Fed.  R. Crim.  P.  11(h) expressly  provides:   "Any

          variance from the procedures required by this rule which does not

          affect  substantial  rights  shall  be  disregarded."    Thus,  a

          violation of Rule 11 will  not necessarily entitle petitioner  to

          relief.  See United States v. Timmreck, 441  U.S. 780, 785 (1979)
                   ___ _____________    ________

          ("collateral  relief is not available when all that is shown is a

          failure to comply with the formal requirements of [Rule 11]").

                      In denying petitioner's    2255 motion, the  district

          court held:

                      Contrary to  petitioner's assertions, the
                      record   substantiates  that   before  he
                      tendered   his   plea   of  guilty,   the
                      petitioner  was  made aware  of potential
                      maximum  penalties.   The  Rule  11  plea
                      colloquy    incorporated   by    explicit
                      reference  the   written  plea  agreement
                      which     recited     those    penalties.
                      Petitioner was reminded  of the  maximums
                      in  the Presentence Report.   The belated
                      assertion  of  this  claim,   well  after
                      petitioner  was  aware  of   the  maximum
                      penalties,  demonstrates  that a  further
                      express recitation by the court itself of
                      the  potential  maximum  penalty was  not
                      material to his plea decision.

____________________

                      "(5) if the court intends to question the defendant
            under oath, on  the record,  and in the  presence of  counsel
            about the  offense to which  the defendant has  pleaded, that
            the  defendant's  answers  may  later  be  used  against  the
            defendant in a prosecution for perjury or false statement."

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                                          6



We find no error in this holding.

                      Petitioner argues that his limited English skills and

          his  inability to  read  or write  made  it imperative  that  the

          district court recite  the maximum penalties  during the Rule  11

          plea  colloquy.   The  record  clearly  indicates, however,  that

          petitioner  was  informed of  the  maximum  penalties at  several

          points prior to the change-of-plea hearing, including just before

          the hearing, when the plea agreement was read to him in Arabic by

          the court interpretor.  In light of this,  the district court did

          not  clearly err in finding that, even though it had neglected to

          inform petitioner of the  maximum penalties during the change-of-

          plea hearing, petitioner  nevertheless understood those penalties

          when he pled guilty.

          C.  Factual Basis for Plea
          __________________________

                      Petitioner also argues that the  district court erred

          in  finding that  there was  a sufficient  factual basis  for his

          plea.    First,  petitioner argues  that  he  had  not agreed  to

          participate in  the conspiracy before the  government rendered it

          impossible  by seizing  the hashish.   Second,  petitioner argues

          that,  at most,  the government's  proof  showed an  agreement to

          import hashish into Canada in violation of no United States law.

                      Petitioner  bases  his  arguments  on  the  following

          statement made by the prosecutor at the change-of-plea hearing:

                      On August 30th,  1991, Mr. Hanna returned
                      from  Montreal to Boston  for the purpose
                      of   continuing  discussions   with  [co-
                      defendant   Peter]   Kattar   about   the

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                                          7



Canadian's position on  the sale of  this
                      hashish and  it was at that  time that he
                      was arrested at the airport.

          Based on  this statement, petitioner  argues that the  August 26,

          1991  indictment  was  returned  "before Mr.  Hanna,  a  Canadian

          citizen,  had  made an  agreement  with  Peter Kattar  for  drugs

          already seized by the government."

                      We  hold that the district  court did not clearly err

          in  finding  that  there  was  a  sufficient  factual  basis  for

          petitioner's plea.  Before making the above-quoted statement, the

          prosecutor recited  several facts  to the effect  that petitioner

          had begun to participate in the conspiracy as early as 1990, when

          he gave "advice and assistance" to Kattar in an  effort to import

          5,000 kilograms  of hashish from Lebanon into  the United States.

          The  prosecutor cited  more facts  that showed  that petitioner's

          involvement  in  the   conspiracy  continued   into  1991,   with

          petitioner  working closely with Kattar  to free Kattar's load of

          hashish from Lebanon.  The  prosecutor also highlighted a  period

          of a few  weeks during  August 1991, when  petitioner engaged  in

          extensive negotiations with  Kattar and  others in  an effort  to

          purchase Kattar's  hashish shipment.3   During that  time period,

                                
            ____________________

            3.  The Presentence Report indicates that at the same time he
            was  working to free  Kattar's load of  hashish from Lebanon,
            petitioner  was  also  involved  in  an  independent  hashish
            conspiracy for which  petitioner had  accepted $350,000  from
            investors for ten tons of  hashish.  Petitioner, however, was
            unable to deliver that hashish to his investors, so he turned
            to Kattar for assistance and arranged to swap loads with him;
            under this arrangement, the details of which were still being
            worked  out  at the  time of  his  arrest, petitioner  was to

                                         -8-
                                          8



petitioner travelled from Lebanon to the  United States, and then

          between Boston, Montreal, and Ottawa, all in furtherance of these

          negotiations.

                      After hearing these  facts, the district  court asked

          petitioner, "Mr. Hanna, you have heard what [the prosecutor] says

          is the Government's evidence in this case.   Do you disagree with

          any of that?"   Petitioner responded by making one clarification,

          about which the district court  questioned the prosecutor.4   The

          district court then asked petitioner, "Mr. Hanna, do you disagree

          with  anything  that [the  prosecutor] has  to say?"   Petitioner

          responded,  "No."  The district court then asked, "That's the way

          it happened?"  Petitioner responded, "Yes."  

                      We   hold  that   these   facts,   and   petitioner's

          admissions,   established   a   sufficient   factual   basis  for

          petitioner's  guilty plea.  We  further hold that,  to the extent

          petitioner  makes a  jurisdictional  argument,  the  conspiracies

          charged  were  plainly  within  the jurisdiction  of  the  United

          States.

          D.  Ineffective Assistance of Counsel
          _____________________________________

                                
            ____________________

            deliver  the  hashish Kattar  was  bringing  into the  United
            States to his  Canadian investors and  Kattar was to  receive
            petitioner's hashish when it arrived.

            4.  Petitioner stated, "The  load came to  Italy, not to  the
            United States  -- to  Italy --  to Italy,  not to the  United
            States.   Who brought the  load to  the United States?"   The
            prosecutor responded to the district court's questioning that
            the hashish had gone to Italy after it left Lebanon, but that
            it  was then brought to  the United States,  where the United
            States Customs Service seized it.

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                                          9



Petitioner  also  argues  that  he  did  not  receive

          effective  assistance  of counsel.    Petitioner  focuses on  two

          different attorneys:   Brown, who was appointed  to represent him

          soon after  he was indicted and  who was to defend  him at trial,

          and  McBride,  whom  petitioner retained  for  the change-of-plea

          hearing.  We find petitioner's arguments waived.  

                      Petitioner argues on appeal  that he only pled guilty

          because he was  unwilling to  go to trial  represented by  Brown,
                                
            ____________________

            5.  Prior to changing his plea, petitioner filed a motion for
          with  whom he  was dissatisfied.5   Petitioner did  not, however,
            withdrawal  of Brown as counsel.  Both the magistrate and the
            district   court,  after   hearings,  found   Brown  entirely
          indicate  that that  was the  reason for his  guilty plea  at the
            satisfactory and  denied  petitioner's motion.    On  appeal,
            petitioner argues  that Brown misinformed the  magistrate and
          change-of-plea  hearing.   Rather, petitioner indicated  that his
            the district  court about  the extent of  his representation.
            We do  not consider  these allegations, however,  because the
          plea   was   voluntary.6       Accordingly,   petitioner   waived
            proper  time to  challenge  the district  court's refusal  to
            grant petitioner's motion  would have been before  petitioner
            changed his plea.   We  note, however, that  even if  Brown's
            alleged  misrepresentations had been  brought to the district
            court's  attention at  the  appropriate  time, they  probably
            would  not have  changed the  district court's  ruling as  to
            Brown's effectiveness.
                        Petitioner  also  contends  that  he  was  denied
            counsel altogether  at an important stage  in the proceedings
            because the  district court  did not  appoint an attorney  to
            help  him make his motion for withdrawal of Brown as counsel.
            Petitioner did  not, however, ever ask  either the magistrate
            or the  district court to appoint counsel  (other than Brown)
            to help him  make this motion.  While we  doubt that we would
            hold  a  refusal to  appoint  alternative  counsel for  these
            hearings  an  abuse of  discretion, we  will  not do  so when
            petitioner made no request for alternative counsel.

            6.  Prior to accepting petitioner's  plea, the district court
            asked petitioner's counsel, "Mr. McBride,  do you know of any
            reason  why I shouldn't  accept a plea?"   McBride responded,
            "No, Your  Honor.  I have had ample opportunity to speak with
            him.   I'm satisfied that  the decision he's  making today is
            voluntary, intelligent, and knowing.  And I have urged him to
            do  that because I  consider it  to be  in his  best interest
            based  upon the  overwhelming  evidence  that the  Government
            has." 

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                                          10



consideration   of   the    effectiveness   of   Brown's    prior

          representation.

                      At oral argument, petitioner argued that McBride  did

          not provide effective  assistance because he  did not inform  the

          district court  at sentencing  that petitioner had  substantially

          assisted  the  government by  persuading  a  federal prisoner  to

          cooperate.     Petitioner  did  not,  however,   provide  factual

          information about  this assistance during oral  argument, nor did

          he develop this  argument in  his brief.   In fact,  petitioner's

          brief fails  to identify  any aspect of  McBride's representation

          that   fell  below  the  standard  of  effective  representation.

          Accordingly,   we    deem   the   effectiveness    of   McBride's

          representation waived.   See Alan Corp.  v. International Surplus
                                   ___ __________     _____________________

          Lines  Ins. Co., 22 F.3d  339, 343-44 (1st  Cir. 1994) (arguments
          _______________

          presented   in   a    perfunctory   manner,   without   developed

          argumentation, may be deemed waived).

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III.
                                         III.
                                         ____

                                      Conclusion
                                      Conclusion
                                      __________

                      Because   none   of   petitioner's    arguments   are

          meritorious,7  the  decision  of   the  district  court  to  deny

          petitioner's motion for collateral relief pursuant to   2255 is

                      Affirmed.
                      Affirmed
                      ________

____________________

            7.  Petitioner also argues that the government denied him due
            process  by  failing  to  advise the  district  court  at his
            change-of-plea hearing that his guilty plea was made pursuant
            to an  all-or-nothing plea offer  by the government,  i.e., a
            plea offer that was  contingent upon the guilty pleas  of all
            of  his co-defendants.  While  it is not  entirely clear from
            the record, it is apparent that petitioner did not accept the
            government's  all-or-nothing  plea  offer,  but  instead pled
            pursuant to a different plea offer.

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