UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Deybi Wagner Santana-Zapata
v. Civil No. 15-cv-016-LM Opinion No. 2015 DNH 200 United States of America
O R D E R
Deybi Wagner Santana-Zapata pleaded guilty in this court to
one count of reentry after deportation and was sentenced to 46
months in prison. He now moves pursuant to 28 U.S.C. § 2255 to
withdraw his guilty plea and vacate his sentence. The court
appointed counsel to represent him and, on October 23, 2015,
held an evidentiary hearing. For the reasons that follow, the
court denies Santana-Zapata’s motion.
Background
In March 2014, a grand jury indicted Santana-Zapata on one
count of reentry after deportation, in violation of 8 U.S.C.
§§ 1326(a) and (b)(2). Cr. doc. no. 7.1 On June 10, 2014,
Santana-Zapata pleaded guilty. At his change of plea hearing,
Santana-Zapata stated that he understood that he was subject to
1 “Cr. doc. no.” refers to document numbers in the docket of the underlying criminal proceeding (No. 14-cr-024-LM). “Doc. no.” refers to document numbers in the instant proceeding. a maximum sentence of 20 years in prison. At his sentencing
hearing on September 29, 2014, the court calculated Santana-
Zapata’s guideline range to be 46-57 months of imprisonment.
Santana-Zapata’s counsel, Jonathan Saxe, argued for 24 months;
the prosecutor argued for 46 months. The court sentenced
Santana-Zapata to a 46–month prison term. Cr. doc. no. 25.
On January 13, 2015, Santana-Zapata filed a motion to
vacate his sentence, arguing that his lawyer was ineffective for
several reasons, primarily for failing to advocate for a
downward departure under United States Sentencing Guideline §
5K3.1, the fast track program for illegal reentry cases. In an
order dated March 18, 2015, the court found Santana-Zapata’s
contention with respect to the fast track program meritless and
unworthy of an evidentiary hearing for the reasons stated in the
government’s objection. Doc. no. 5. The court appointed a
lawyer for Santana-Zapata and held in abeyance a ruling on
whether an evidentiary hearing was necessary to resolve Santana-
Zapata’s other ineffective assistance of counsel claims until
the lawyer had an opportunity to review the case.
On June 23, 2015, Santana-Zapata filed a supplement to his
§ 2255 motion, doc. no. 9, in which he asserts three claims of
ineffective assistance of counsel. First, he argues that his
plea was not knowing and voluntary because he entered the plea
2 on his counsel’s assurance that the government would “go light”
on him at the sentencing hearing. Second, he argues that his
counsel failed to object to his Presentence Report (“PSR”) on
the basis of Apprendi v. New Jersey, 530 U.S. 466 (2000),
thereby subjecting him to a 20-year maximum sentence. Third, he
argues that his counsel failed to file a notice of appeal on his
behalf.2 The government objects. Doc. nos. 4 & 11.
By order dated September 2, 2015, the court scheduled a
hearing to resolve factual disputes on the first and third
claims.
Analysis
Under § 2255, a federal prisoner may ask the court to
vacate, set aside or correct a sentence on “the ground that the
sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the
maximum authorized by law or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). When the prisoner's claims are
2 Santana-Zapata asserts a host of other ineffectiveness claims in his § 2255 filings, including that his counsel did not consult with him prior to sentencing, did not investigate mitigation evidence, and did not assert mitigation arguments at his sentencing hearing. At the October 23 evidentiary hearing, however, Santana-Zapata limited the claims currently before the court to only those claims asserted in his supplement (doc. no. 9).
3 based on ineffective assistance of counsel, as they are here,
the prisoner “must demonstrate both: (1) that counsel’s
performance was deficient, meaning that counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment; and (2) that
the deficient performance prejudiced the defense.” Rossetti v.
United States, 773 F.3d 322, 327 (1st Cir. 2014) (internal
quotation marks omitted), cert. denied, 135 S. Ct. 1751 (2015)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A
failure to meet either the deficiency or prejudice prong will
defeat an ineffective assistance of counsel claim. Strickland,
466 U.S. at 697.
The burden on a prisoner who alleges that counsel rendered
constitutionally inadequate representation is “highly demanding”
and “heavy.” Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)
(quoting Williams v. Taylor, 529 U.S. 362, 393 (2000)).
In assessing the adequacy of appointed counsel, [the court] indulge[s] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, . . . finding deficiency only where, given the facts known to counsel at the time, counsel's choice was so patently unreasonable that no competent attorney would have made it . . . . And, to establish prejudice, a defendant must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
4 Rossetti, 773 F.3d at 327 (internal quotation marks and
citations omitted). To establish prejudice with respect to a
sentencing hearing, a petitioner must show “that but for his
counsel’s deficiency, there is a reasonable probability that he
would have received a different sentence.” Peralta v. United
States, 597 F.3d 74, 79 (1st Cir. 2010) (internal quotation
marks omitted).
The court may either summarily dismiss a prisoner’s § 2255
claim or grant an evidentiary hearing to determine if it is
meritorious. 28 U.S.C. § 2255(b) provides that:
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 findings of fact and conclusions of law with respect thereto.
In evaluating whether an evidentiary hearing is required,
the court “take[s] as true the sworn allegations of fact set
forth in the petition unless those allegations are merely
conclusory, contradicted by the record, or inherently
incredible.” Owens v. United States, 483 F.3d 48, 57 (1st Cir.
2007) (internal quotation marks and citation omitted).
Because there are factual disputes with respect to Santana-
Zapata’s claims about his understanding of the plea agreement
and his lawyer’s failure to file a notice of appeal, the court
5 held an evidentiary hearing on those claims. The remaining
claim, i.e, his Apprendi-based argument, raises a question of
law which does not require an evidentiary hearing. The court
first addresses the Apprendi-based claim, and then turns to the
two claims on which the court received evidence.
I. Santana-Zapata’s Apprendi-based claim
Santana-Zapata asserts an Apprendi-based argument that his
defense counsel was ineffective for failing to object to the
PSR. The PSR recited a maximum penalty of 20 years because
Santana-Zapata had illegally reentered the country subsequent to
both deportation and a conviction for an aggravated felony. See
8 U.S.C. § 1326(b)(2). Without the conviction for an aggravated
felony, Santana-Zapata would have been subject to a maximum
penalty of only 2 years. See 8 U.S.C. § 1326(a).
Santana-Zapata argues that he would not have been subjected
to the 20-year maximum had his lawyer argued that the maximum
penalty did not apply because neither the indictment nor the
plea agreement (i.e., its recitation of the elements of the
offense and offense conduct) contained a specific reference to
the prior aggravated felony conviction. Santana-Zapata
concedes, as he must, that the indictment cites the aggravated
penalty section of the statute, § 1326(b)(2), and that the plea
agreement’s penalty section recites the maximum penalty as 20
6 years. Additionally, he admitted at his change of plea hearing
that his maximum exposure was 20 years. Cr. doc. no. 29 at 15-
16.
Santana-Zapata further concedes that the law forecloses the
precise legal argument he faults his defense counsel for not
making. See Almendarez-Torres v. United States, 523 U.S. 224,
226-27 (1998); United States v. Jimenez-Banegas, 790 F.3d 253,
258 (1st Cir. 2015) (“In Almendarez-Torres, the Supreme Court
. . . clearly held that the indictment need not mention the
prior aggravated felony conviction in order for the statutory
maximum penalty of § 1326(b)(2) to be applicable to a defendant
charged under § 1326 . . . .”); see also Apprendi, 530 U.S. at
489-90 (acknowledging that the Court was not revisiting its
holding in Almendarez-Torres).
With no case law on which to rest his Apprendi-based
ineffective assistance claim, Santana-Zapata asserts a novel,
but unpersuasive, argument about an alleged policy of the
probation department that his counsel should have invoked.
Specifically, Santana-Zapata alleges that the probation
department in this district acts unilaterally to treat
Almendarez-Torres as if it had been overruled. He argues that,
had his counsel asserted that his aggravated felony was required
to be listed as an element in the indictment, an argument that
7 the Court squarely rejected in Almendarez-Torres and that the
First Circuit recently rejected in Jimenez-Banegas, 790 F.3d at
258, the probation department would have, per its extralegal
policy, altered the PSR to state a maximum penalty of 2 years.
This argument fails both prongs of Strickland. First, it
is not deficient performance for an attorney to forego arguments
that lack merit. Taking Santana-Zapata’s allegations as true,
if the probation department actually had such a policy and
Santana-Zapata’s counsel was aware of the policy, it would not
have been deficient for counsel to conclude that reliance on the
policy would be foolish because that position is directly
contradicted by controlling case law. That conclusion would be
especially warranted here, where Santana-Zapata was indisputably
subject to a 20-year maximum sentence and counsel’s goal at the
sentencing hearing was to argue in favor of mitigation in hopes
of reducing the length of his client’s sentence.
Santana-Zapata’s Apprendi-based argument also fails under
the second prong of Strickland, as he cannot establish
prejudice. Santana-Zapata argues that his counsel was
ineffective for not having relied on a flawed legal argument at
his sentencing hearing, while hoping that both the government
and the court would be unaware of the law. The concept of
ineffective assistance of counsel does not operate in this
8 fashion. The Strickland prejudice inquiry operates on the
presumption “that the judge or jury acted according to law.”
Strickland, 466 U.S. at 694. “A defendant has no entitlement to
the luck of a lawless decisionmaker . . . . The assessment of
prejudice should proceed on the assumption that the
decisionmaker is reasonably, conscientiously, and impartially
applying the standards that govern the decision.” Id. at 695.
In making the prejudice determination, a court “must
consider the totality of the evidence before the judge . . . .”
Id. In this case, the plea agreement listed the maximum penalty
as 20 years and at his change of plea hearing, the court
informed Santana-Zapata that he could be sentenced to a maximum
of 20 years. Santana-Zapata does not dispute that he had a
prior aggravating felony that qualified him for the 20-year
maximum sentence. At his sentencing hearing, any objection by
counsel to the failure of the indictment (or plea agreement) to
specify the prior conviction would have been properly overruled.
See Almendarez-Torres, 523 U.S. at 226-27; Jimenez-Banegas, 790
F.3d at 258. The presumption under Strickland that a court acts
in accordance with the law defeats Santana-Zapata’s prejudice
argument.
For these reasons, Santana-Zapata’s Apprendi-based
ineffective assistance claim is meritless.
9 II. Claims on which the court heard evidence
The court held an evidentiary hearing to resolve factual
disputes on Santana-Zapata’s claims that (1) his lawyer assured
him that the prosecutor would “go light” at his sentencing
hearing and he would not have entered the plea had he known
otherwise, and (2) his lawyer failed to file a notice of appeal.
The court addresses each claim below.
A. Plea agreement
Santana-Zapata claims that his counsel was ineffective
because he assured Santana-Zapata that the government would “go
light” on him at his sentencing hearing and not argue
“forcefully for a 46-month sentence.” He alleges that but for
his counsel’s ineffective assistance he would not have entered a
guilty plea. As a result, Santana-Zapata asserts that his plea
was not knowingly and voluntarily entered.
“Before deciding whether to plead guilty, a defendant is
entitled to the effective assistance of competent counsel.”
Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (internal
quotation marks omitted). As discussed above, to show
ineffective assistance of counsel, a defendant must demonstrate
that counsel’s performance was deficient and that the deficient
performance prejudiced the defense. Strickland, 466 U.S. at
697. “In the guilty plea context, [prejudice] means [a
10 petitioner] has to demonstrate a reasonable probability that,
but for counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.” Moreno-Espada v. United
States, 666 F.3d 60, 64 (1st Cir. 2012) (internal quotation
“It is well-established in the First Circuit that ‘an
inaccurate prediction about sentencing will generally not alone
be sufficient to sustain a claim of ineffective assistance of
counsel.’” Alcott v. United States, No. 04-CR-10286-PBS, 2009
WL 2848669, at *5-6 (D. Mass. Sept. 2, 2009) (quoting Knight v.
United States, 37 F.3d 769, 775 (1st Cir. 1994)). Further, “it
is well settled that post-sentencing buyer's remorse is not a
valid basis on which to dissolve a plea agreement and the fact
that a defendant finds himself faced with a stiffer sentence
than he had anticipated is not a fair and just reason for
abandoning a guilty plea.” Moreno-Espada, 666 F.3d at 67
(internal quotation marks omitted). “A guilty plea will not be
set aside where a defendant has had a change of heart simply
because . . . he is not satisfied with the sentence he has
received.” Id. (quoting Miranda–González v. United States, 181
F.3d 164, 165 (1st Cir. 1999)).
In the plea agreement, the prosecutor agreed to recommend
that the defendant receive a sentence at the low end of the
11 applicable sentencing guidelines range. There is no dispute
that Santana-Zapata understood the terms of the plea agreement
and that, before pleading guilty, he told the court that there
were no “promises of leniency or any other inducement of any
kind to enter a guilty plea other than whatever statements are
contained in his plea agreement.” Cr. doc. no. 29 at 22.
Santana-Zapata testified that he failed to tell the court of the
promise to “go light” because, as his counsel explained it to
him, “it wasn’t actually necessary.”
Attorney Saxe testified that there was never any
understanding that the prosecutor would “go light” at the
sentencing hearing. Rather, Saxe had a clear memory of the
prosecutor taking an uncompromising view that a guideline
sentence was the appropriate sentence. Saxe’s testimony is
consistent with the terms of the plea agreement and the
prosecutor’s argument in favor of the 46-month sentence at the
sentencing hearing. Saxe testified that it is unlikely that he
would have informed Santana-Zapata of any promise to “go light”
because there was no such promise.
The court finds that the evidence clearly establishes
Santana-Zapata entered his plea knowingly and voluntarily. At
the time he entered the plea, Santana-Zapata understood that: he
was subject to a maximum prison sentence of 20 years; his
12 guideline range would likely be 46-57 months; the prosecutor
would argue for 46 months; his attorney would argue for 24
months; and his attorney believed he had an excellent chance of
receiving a sentence in the range of 24-30 months. On cross,
Santana-Zapata conceded that the “promise” to “go light” was in
actuality a “prediction” on his counsel’s part that he would
receive a lighter sentence than the bottom of his guideline
range.
The law in this circuit is clear. Attorney Saxe’s
inaccurate prediction that Santana-Zapata would receive a below-
the-guideline sentence cannot sustain a claim of ineffective
assistance of counsel. See Knight, 37 F.3d at 775. Santana-
Zapata has not sustained his burden on this claim.
B. Notice of appeal
Santana-Zapata’s final claim is that his counsel ignored
his instruction to file a notice of appeal to challenge his 46-
month sentence. If true, there is a presumption that Santana-
Zapata has stated a meritorious claim for ineffective assistance
of counsel. See Roe v. Flores–Ortega, 528 U.S. 470, 484 (2000)
(holding that where a defendant “instruct[s] counsel to perfect
an appeal, [he has] objectively indicated his intent to appeal
and [is] entitled to a new appeal without any further showing”);
see also Hernandez v. Reno, 238 F.3d 50, 57 (1st Cir. 2001)
13 (“counsel's failure to comply with a defendant's request to
appeal would be treated as prejudice per se”).
Santana-Zapata testified that, following his sentencing
hearing, he instructed Attorney Saxe to file a notice of appeal
but Saxe ignored that instruction. The court did not find his
testimony on that point credible. Saxe had no memory of any
meeting with Santana-Zapata but testified persuasively that it
is his practice to file a notice of appeal when his client
requests it, even where, as is the case here, a client’s plea
agreement contains a waiver of appellate rights should he
receive a sentence within the guideline range. Santana-Zapata
has not met his burden of proving that he instructed Saxe to
file a notice of appeal.
Because Santana-Zapata has not carried his burden of
showing that his trial counsel’s conduct fell below the standard
of reasonably effective assistance, he has not shown that he was
convicted and sentenced “in violation of the Constitution or
laws of the United States.” Consequently, he is not entitled to
relief under 28 U.S.C. § 2255.
Conclusion
For the foregoing reasons, Santana-Zapata’s motion for
relief under 28 U.S.C. § 2255 (doc. no. 1) is denied. Because
Santana-Zapata has not made a substantial showing of the denial
14 of a constitutional right, the court declines to issue a
certificate of appealability. See 28 U.S.C. § 2253(c)(2); Rule
11, Federal Rules Governing § 2255 Cases. The clerk of court
shall enter judgment accordingly and close the case.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge October 28, 2015
cc: Richard Guerriero, Esq. Seth R. Aframe, Esq.