Ortiz-Casanova v. United States

Opinion

USCA1 Opinion

May 18, 1995
                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 93-2094 

                               JOSE A. ORTIZ-CASANOVA,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                           Selya and Stahl, Circuit Judges.
                                            ______________

                                 ____________________

            Jose A. Ortiz Casanova on brief pro se.
            ______________________
            Guillermo Gil,  United States Attorney, and Salixto Medina-Malave,
            _____________                               _____________________
        Assistant United States Attorney, on brief for appellee.

____________________

____________________



Per Curiam.    Appellant Jose A. Ortiz  Casanova, acting
                 __________

            pro se,  moved  to vacate,  modify  or correct  his  sentence
            ___ __

            pursuant  to  28 U.S.C.    2255.    Ortiz maintains  that the

            district  court erred  in dismissing  all his  claims without

            conducting an  evidentiary hearing concerning whether (1) the

            sentence imposed  failed to take into  account the Sentencing

            Reform  Act of  1984, (2)  the assessment  of a  $50,000 fine

            violated due process and equal protection of the law, (3) the

            plea-taking procedure was constitutionally defective, (4) his

            counsel   was  constitutionally   inadequate,  and   (5)  the

            government   breached  the  plea   agreement  at  sentencing.

            Assuming,  without deciding,  that these  challenges  are all

            cognizable  in  a    2255  proceeding, see  Knight  v. United
                                                   ___  ______     ______

            States, 37 F.3d 769, 772-74 (1st Cir. 1994), we find no error
            ______

            and affirm. 

                                      BACKGROUND

                 On October 1, 1987, Ortiz  and a co-defendant, the  sole

            occupants  of a boat found  to contain 195  kilos of cocaine,

            were  arrested.   Subsequently,  both  were  indicted on  two

            counts of cocaine importation  and distribution charges.  See
                                                                      ___

            United States v. Palmer-Contreras, 835  F.2d 15, 16 (1st Cir.
            _____________    ________________

            1987)  (setting  out  background  and   affirming  denial  of

            pretrial bail).  Ortiz  petitioned to enter a plea  of guilty

            to one count and  executed a written plea agreement  with the

            government.  A change-of-plea hearing was held on January 26,



1988.   The  plea was  accepted, and  Ortiz was  convicted of

            aiding and abetting the  possession with intent to distribute

            cocaine under  21 U.S.C.    841(a)(1) and  18 U.S.C.    2, in

            violation  of    1002  of the  Anti-Drug  Abuse Act  of  1986

            ("ADAA"), Pub. L. No. 99-570 (Oct.  26, 1986).1  On April  6,

            1988, Ortiz was sentenced  to twenty-five years imprisonment,

            five years  of supervised release, a  $50,000 stand-committed

            fine, and a $50 special assessment.  After various motions by

            Ortiz  for correction  of  sentence, the  district court,  on

            January  25,  1990, reduced  his term  of imprisonment  to 18

            years.   Further motions to modify the sentence and fine were

            unsuccessful.   Ortiz'  direct  appeal  from  conviction  and

            sentence was  ultimately dismissed by this court  for lack of

            prosecution.

                 (1)  The Sentence.
                 (1)  ____________

                 Ortiz  contends  that  he  should  have  been  sentenced

            according to the guidelines promulgated under the  Sentencing

            Reform  Act of  1984.   The  guidelines  became operative  on

            November 1, 1987 and,  it is manifestly clear, apply  only to

            offenses  committed on or  after that date  regardless of the

            date of  conviction or sentencing.   Sentencing Act  of 1987,

            Pub. L.  No. 100-182 (Dec. 7,  1987); 18 U.S.C.    3551 note;

            see  United States v. Twomey,  845 F.2d 1132,  1135 (1st Cir.
            ___  _____________    ______

                                
            ____________________

            1.  The increased penalties, supervised release and no-parole
            provisions  of  the  ADAA  became  effective  upon enactment.
            Gozlon-Peretz v. United States, 498 U.S. 395, 401-09 (1991).
            _____________    _____________

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1988); see also United  States v. Metallo, 908 F.2d  795, 800
                   ___ ____ ______________    _______

            (11th Cir.  1990).   Because Ortiz was  convicted of  conduct

            that occurred  in October 1987, the  sentencing guidelines do

            not apply, and he was properly sentenced under pre-guidelines

            law.  United States v. Richard,  943 F.2d 115, 120 (1st  Cir.
                  _____________    _______

            1991); United States  v. Thomas,  895 F.2d 51,  58 (1st  Cir.
                   _____________     ______

            1990).   There  is no  constitutional right  to  benefit from

            sentencing guidelines that put into  effect lesser punishment

            levels  for a  crime after  the offense  was committed.   See
                                                                      ___

            United States v.  Hayes, 929 F.2d  741, 742 (D.C.Cir.  1991).
            _____________     _____

            Ortiz'  argument that  it  is inconsistent  to fix  different

            effective dates  for penalty provisions  of the ADDA  and the

            Sentencing Reform  Act of 1984 was expressly  rejected by the

            Supreme  Court in  Gozlon-Peretz v.  United States,  498 U.S.
                               _____________     _____________

            395, 405-09 (1991).  Otherwise, Ortiz does not argue that the

            sentence   imposed  was  not   within  statutory   limits  or

            constituted cruel  and unusual punishment.   See Richard, 943
                                                         ___ _______

            F.2d at 120.  The sentencing guidelines were never applicable

            to Ortiz and he was properly sentenced under the ADAA.

                 (2)  The Fine.
                 (2)  ________

                 Ortiz argues  that the  imposition of  a stand-committed

            fine of  $50,000 is unjustified and exorbitant  because he is

            indigent.   This claim is premature.  Ortiz must first pursue

            available  administrative  remedies   designed  to   evaluate

            inability to pay a fine, 18 U.S.C.   3569; Santiago v. United
                                                       ________    ______

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States,  889  F.2d 371,  372-73 (1st  Cir.  1989), and  he is
            ______

            without  standing to  contest his  fine on  indigency grounds

            until  and  unless  the  government  seeks  incarceration for

            nonpayment.  See  United States  v. Levy, 897  F.2d 596,  598
                         ___  _____________     ____

            (1st  Cir. 1990).  The mere existence of an outstanding penal

            liability  does not  violate an  indigent prisoner's  rights.

            United States v. Rivera-Velez, 839 F.2d 8 (1st Cir. 1988).
            _____________    ____________

                 (3)  The Plea.
                 (3)  ________

                 Ortiz  first  maintains  that  the  plea   colloquy  was

            defective because  the court failed to  determine that Ortiz,

            in entering the plea change, heavily relied on his attorney's

            representation  that he would receive no more than a ten year

            sentence and would have  to serve six years and  eight months

            at  most.    However,  the  facts  recited  in  Ortiz'   2255

            memoranda,  his  attached affidavit,  the plea  petition, the

            parties  plea  agreement,  and  the  declarations  of  Ortiz'

            attorney  and his  codefendant's  attorney2 do  not, overall,

            present enough evidence  to overcome the  presumed regularity

            of the  plea proceeding.  These  record documents effectively

            contradict Ortiz'  assertion that  he was falsely  assured by

____________________

            2.  Ortiz'  complaints about  his  attorney are  vague as  to
            which attorney  represented him.   Early on,  both defendants
            were represented by Abreu.  It is clear that Lima assumed the
            representation of Ortiz about six weeks  before the change of
            plea  proceeding.    Ortiz'  affidavit  indicates  that  both
            attorneys visited  him, and, presumably,  his codefendant, in
            prison prior to the plea change.

                                         -5-



his  attorney  that  a guilty  plea  would  garner a  lighter

            sentence.

                 Ortiz next complains that  he relied upon his attorney's

            representation  that he  would be  eligible for  parole after

            serving one-third of  his sentence and that  the court failed

            to  reveal to him that  his offense was  nonparolable.  Ortiz

            relies on Durant  v. United  States, 410 F.2d  689, 693  (1st
                      ______     ______________

            Cir. 1969), which held  that a defendant must be  informed of

            parole ineligibility.   However, the 1974  Amendments to Fed.

            R. Cr. P. 11 make clear that, in accepting a  plea of guilty,

            a court is not required to inform a defendant of the possible

            collateral consequences  of a  guilty plea such  as statutory

            ineligibility for parole.  Johnson v. United States, 650 F.2d
                                       _______    _____________

            1, 4 (1st  Cir. 1981);  see Rule 11(c)(1)  Notes of  Advisory
                                    ___

            Committee on Rules; see  also United States v. Fox,  941 F.2d
                                ___  ____ _____________    ___

            480,  486  (7th Cir.  1991);  United  States v.  Sanclemente-
                                          ______________     ____________

            Bejarano,  861  F.2d  206,  209  (9th  Cir.  1988).    Ortiz'
            ________

            assertion that  no  one  mentioned  parole  ineligibility  is

            patently  inadequate   to  set  aside  his   guilty  plea  on

            constitutional  grounds.   See United  States v.  Garcia, 698
                                       ___ ______________     ______

            F.2d  31, 33 (1st Cir.  1983) (due process  not offended when

            parole eligibility advice omitted in plea-taking).

                 (4)  Ineffective Assistance.
                 (4)  ______________________

                 Ortiz  charges that  his  attorney rendered  ineffective

            assistance of counsel during  the plea negotiation process by

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misrepresenting   to  him   his   eligibility   for   parole.

            Specifically, Ortiz  alleges that  his lawyer induced  him to

            plead guilty by  telling him  that he would  be eligible  for

            parole  after serving approximately one-third of his sentence

            and that  the sentence  imposed would  not exceed  ten years.

            But for  those representations,  Ortiz insists that  he would

            not have pleaded guilty.   

                 Challenges  to  guilty  pleas  based on  allegations  of

            ineffective assistance of counsel during the plea process are

            evaluated under the familiar two-pronged cause and  prejudice

            test of Strickland  v. Washington, 466 U.S. 668,  687-88, 694
                    __________     __________

            (1984).  Hill v. Lockhart, 474  U.S. 52, 58 (1985).  The plea
                     ____    ________

            petition  and  plea   agreement  contradict  Ortiz'   belated

            assertions that he was assured a specific sentence, as do the

            attorneys'  declarations  that   no  promise,  prediction  or

            representation  concerning  parole eligibility  or sentencing

            were made.  Allegations  based solely on counsel's inaccurate

            predictions about sentencing  are insufficient to  sustain an

            ineffective assistance  claim.   Knight v. United  States, 37
                                             ______    ______________

            F.3d  at 775; Worthen v.  Meachum, 842 F.2d  1179, 1184 (10th
                          _______     _______

            Cir. 1988) (attorney's "bad  guess" regarding parole does not

            render   plea   involuntary).     Ortiz'   unadorned  factual

            allegation  that his  attorney  misled him  as  to parole  is

            simply   inadequate  to   warrant  an   evidentiary  hearing.

            Hernandez-Hernandez v. United States,  904 F.2d 758, 762 (1st
            ___________________    _____________

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Cir. 1990) (to  obtain hearing,  highly specific  allegations

            usually   accompanied   by   independent  corroboration   are

            required).  

                 Even  if   Ortiz  could  satisfy  the   cause  prong  of

            Strickland's test, he has  failed to sufficiently allege that
            __________

            he was prejudiced  by the alleged error.   Hill, 474 U.S.  at
                                                       ____

            60.   To establish  prejudice, Ortiz  must show a  reasonable

            probability that, armed with correct information, the outcome

            would have  been different.   Strickland,  466  U.S. at  694.
                                          __________

            Ortiz' bare and  conclusory statement  that if  he had  known

            that  his offense was nonparolable, he would not have pleaded

            guilty and would have  gone to trial is insufficient  to show

            prejudice.  See Armstead v. Scott, 37 F.3d 202, 210 (5th Cir.
                        ___ ________    _____

            1994); Barker v.  United States,  7 F.3d 629,  633 (7th  Cir.
                   ______     _____________

            1993); United States v. Hanley, 906 F.2d 1116, 1121 (6th Cir.
                   _____________    ______

            1990).  Ortiz does not maintain that he was told  he would be

            eligible for parole  only if  he pleaded guilty,  nor has  he

            otherwise  indicated any  "special circumstances"  that might

            support a reasonable inference  that parole was  particularly

            important.  Hill, 474 U.S. at 60.  As Ortiz acknowledges, his
                        ____

            offense  is  nonparolable.   Ortiz'  misunderstanding  as  to

            parole eligibility appears equally applicable either to going

            to trial or pleading guilty.  See Smith v. McCotter, 786 F.2d
                                          ___ _____    ________

            697, 703 (5th Cir. 1986); see also Wellman v. Maine, 962 F.2d
                                      ___ ____ _______    _____

            70,  73 (1st  Cir. 1992).   Since parole  was not  in play in

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either  eventuality,  Ortiz "failed  to  allege  the kind  of

            prejudice  from the allegedly  incompetent advice  of counsel

            that would have  entitled him to a hearing."   Hill, 474 U.S.
                                                           ____

            at 53.

                 (5)  Breach of Plea Agreement.
                 (5)  ________________________

                 Ortiz' last foray--that the government breached the plea

            agreement--is frivolous.  Ortiz maintains that the government

            violated the letter and  the spirit of the plea  agreement by

            appending to the presentence  report a letter indicating that

            the  estimated  wholesale value  of  the  cocaine seized  was

            between 6 and 6.5 million dollars.  The government had a duty

            to  bring all  relevant  conduct information  to the  court's

            attention,  and,  in  so  doing,  did  not  violate  the plea

            agreement.

                                      CONCLUSION

                 Where,  as here, a    2255 petition is  presented to the

            judge who presided over all the prior  proceedings, the judge

            may  take  into  account  the knowledge  gleaned  during  the

            previous proceedings without convening an additional hearing.

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

            The district court properly rejected Ortiz' motion for   2255

            relief  based upon  the  papers  of  record and  the  court's

            familiarity with the case.   Id. at 225-26; Rule  4(b), Rules
                                         ___

            Governing   2255 Proceedings.

                 The judgment of the district court is affirmed.
                                                       ________

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