In Kieser, the court denied relief on a habeas corpus petition claiming ineffective assistance of counsel where petitioner's lawyer was suspended from the New Jersey bar for non-payment of bar dues during the early phases of representation. The lawyer was subsequently reinstated to the New Jersey bar prior to the petitioner's criminal trial, but in any event, was never admitted pro hac vice to practice in a New York court. The court held that counsel's licensing defect did not violate the petitioner's Sixth Amendment right to effective assistance of counsel.
Here, while Serrano's having been struck from the roll of attorneys licensed to practice in this district for failure to make court appearances is more than merely technical, it is not the same as someone who has been disbarred or who has never been licensed to practice law at all. Serrano was duly admitted and has been continuously eligible to practice law in the First Department of New York since December, 1984. Serrano was also admitted to the Puerto Rico Bar in 1981, and it appears that he was practicing there at the time of this case.
Since Serrano was duly licensed to practice law in the State of New York at the time of petitioner's Fatico hearing, and as there is no evidence that Serrano's license was obtained through fraud or deception, a claim that petitioner was denied representation by counsel should not be viewed as sufficient to constitute a per se violation of petitioner's Sixth Amendment right to effective assistance of counsel. However, that still leaves open the question whether his removal from the roll of admitted attorneys played any role in his handling of this case. That issue will be discussed separately.
On Guerrero's behalf, appointed counsel contends that petitioner's Sixth Amendment rights were violated because Serrano's performance at his Fatico hearing was sufficiently inadequate to constitute ineffective assistance of counsel. Indeed, this claim raises serious concerns about the adequacy of Serrano's representation of petitioner. First, though petitioner had waived his right to a trial by jury and pled guilty, Serrano nevertheless continued to contest petitioner's guilt, causing me to remind Serrano on many occasions that he should not attempt to retry his client's guilt. See Tr 2/10/95, pp. 61, 63, 104, 105. Second, Serrano's statements at the hearing were often confusing and at times unintelligible.
Serrano's unfocused rambling caused him to be admonished on numerous occasions and to be urged to "focus on the issues." See Tr 2/10/95, pp. 6, 61-64, 69-73, 91-92, 106.
In spite of being warned many times, Serrano failed to do as I requested. Serrano's attempts to challenge the government's case at the Fatico hearing consisted of repeating variations of a seriously flawed argument, well beyond the point at which it became apparent that the argument had no merit. Serrano's argument was based upon: (i) an entry in a DEA report stating that petitioner had been paid $ 30,000 following the successful completion of a smuggling trip or trips and (ii) an entry in a separate part of the same report containing a co-conspirator's statement which stated that petitioner was paid $ 1500 per kilogram of cocaine smuggled successfully. Serrano contended that these two statements together proved that petitioner's knowing involvement in the conspiracy was limited to 20 kilograms of cocaine.
Tr 2/10/95, pp. 63-69. Seemingly oblivious to the testimony of petitioner's co-conspirators, which I found to be credible, that petitioner knowingly transported or attempted to transport with the intent to distribute 145 kilograms of cocaine, Serrano persisted in this line of argumentation. Tr 2/10/95, pp. 5, 64-67, 69, 71, 82, 84, 93, 105-107.
Moreover, Serrano ignored testimony which established that petitioner had been paid at least $ 80,000 for his involvement in the conspiracy; that the owners of the drugs had paid the conspirators $ 120,000; that the $ 120,000 paid to the conspirators was for less than the total amount of drugs successfully shipped; and that the figure of $ 1500 in the DEA report was mistaken -- petitioner was paid $ 1000 per kilo. Tr 2/10/95, pp. 54-55, 60, 63, 67, 71. Even assuming that the $ 1500 figure had been correct, petitioner would have been paid for over 50 kilograms of cocaine. Tr 2/10/95, pp. 83-84. In sum, the record is replete with instances of Serrano's inadequate performance.
Notwithstanding Serrano's inept defense at the Fatico hearing, Guerrero was sentenced to the lowest recommended term in the plea agreement (151 months); the PSR which had suggested a sentence of between 188 and 235 months was not followed. Consistent with the plea agreement, petitioner was found accountable for transporting between 50 and 150 kilograms of cocaine and allowed a two point downward adjustment for acceptance of responsibility. PA, p. 2; see Tr 2/10/95, pp. 69-71, 83-84, 111-112, 116.
In light of the eventual sentence, and after reviewing the record, it would appear that petitioner has not made out a viable case for ineffective assistance of counsel. First, any claim petitioner might have had for ineffective assistance of counsel at the Fatico hearing fails because even the most competent of counsel could not have altered the facts that were disclosed at the hearing and the sentence that was ultimately imposed was the lowest that petitioner had bargained for under the plea agreement.
Thus, no matter how inadequate petitioner's representation was at the Fatico hearing, petitioner suffered no real prejudice. That, under Strickland, should be the end of the inquiry.
Unfortunately, that is not the end of the matter. Even though there was no prejudice to petitioner from the Fatico hearing, the problem here is that counsel's whole approach to petitioner's defense was misguided from day one. The prejudice to petitioner, if any, resulted from a foolish strategy from the outset -- seeking a Fatico hearing in the first instance, the net result of which was to establish petitioner's extensive and important involvement in the conspiracy. Once a Fatico hearing was demanded, the door was opened to the admission of this evidence. A far wiser course would have been an earlier plea and possible government acquiescence in a two level minor role reduction or a lower drug quantity estimate. In light of general plea practices in this district at the time, such a two-level reduction on one of these grounds would not have been far-fetched. This additional two-level reduction, together with an additional point for early acceptance of plea, would have produced a level 31 and a range of 108-135 months, or nine years. Serrano's ineptness at the Fatico hearing thus reflects back on his earlier representation, for all three sentencing guideline reductions that he was urging are of the kind that are best negotiated for before a plea and not at a Fatico hearing Cf., Boria v. Keane, 99 F.3d 492 (2d Cir. 1996). Moreover, a concern must also arise that Serrano's failure to engage in prompt negotiations may have been prompted by the fact that he was not authorized to practice in the district.
Nevertheless, after a careful review of the record, I am convinced that whatever the inadequacies of Serrano's representation at the Fatico hearing or before, the adverse result here for petitioner was due to his decisions and not Serrano's actions. While the decision not to plead earlier and to request a Fatico hearing might be considered attributable to less than adequate representation, the sentence that petitioner received was in the final analysis the result of petitioner's choices. Although the record does not explicitly address this question completely, Guerrero's decision not to negotiate earlier was motivated by a different set of considerations than any ineffectiveness by Serrano. What comes through from a review of the record is that Guerrero's decision to delay his guilty plea was ultimately motivated by a hope, if not an expectation, that his "friends," who were also the principals of the conspiracy, would not testify against him. See Tr 2/10/95, pp. 97-100. This wish that his co-conspirators would renege on their cooperation agreements was foolish. But it was this consideration as well as petitioner's stubborn refusal to face the prospect of a severe sentence, especially when he contemplated the relatively low sentences that the more culpable members of the conspiracy would likely receive for their cooperation, that were ultimately responsible for the delay in negotiating a plea on possibly far more favorable terms. See Tr 9/9/94, p. 14; Tr 2/10/95, p. 92. But Guerrero's unwillingness to accept his relatively high sentence was his choice, and the responsibility for following what to others would be an irrational course of conduct cannot fairly be laid upon Serrano. The record thus indicates that Serrano's failure to negotiate earlier was not the result of Serrano's incompetence or a possible concern on Serrano's part that the Assistant U.S. Attorney might become aware of Serrano's disbarred status. See Letter of Serrano-Walker to Chief Judge Sifton, dated April 3, 1997 (wherein Serrano states that he was unaware that he had been formally stricken from the roll of attorneys admitted to practice in this district).
Accordingly, the motion by petitioner to set aside his sentence on the grounds of ineffective assistance of counsel is denied.
2. "Safety Valve" Provision
Petitioner's claim that he is entitled to application of the "safety valve" provision of 18 U.S.C. § 3553(f) (1)-(5) fails as a matter of law. The "safety valve" provision authorizing a two level decrease in offense level, U.S.S.G. § 2D1.1(b)(4), became effective on November 1, 1995, after petitioner's sentencing, and does not apply retroactively.
U.S.S.G. § 5C1.2, also known as the "safety valve," allows defendants in narcotics cases to escape the statutory minimum sentences provided certain criteria relating to the defendant's prior criminal record and the nature and seriousness of the offense are satisfied. See 18 U.S.C. § 3553(f)(1) - (5). U.S.S.G. § 2D1.1 was amended to provide a two level decrease in offense level for defendants who meet the criteria set forth in § 5C1.2 and whose offense level is 26 or greater. See U.S.S.G. § 2D1.1(b)(4).
Unless an amendment to the Sentencing Guidelines is selected for retroactive application under U.S.S.G. § 1B1.10(c), however, the sentencing court is not authorized to apply it retroactively. See 18 U.S.C. § 3582(c); U.S.S.G. § 1B1.10(a); Soto v. United States, 1996 U.S. Dist. LEXIS 20139, 1996 WL 497144 (E.D.N.Y.). U.S.S.G. § 2D1.1(b)(4) was added to the Sentencing Guidelines under amendment number 515. Amendment 515 was not selected for retroactive application. See U.S.S.G. § 1B1.10(c); U.S.S.G. Appendix C, Amendment 515; United States v. Muhammed, 1996 U.S. Dist. LEXIS 365, 1996 WL 15681 (S.D.N.Y.). Thus, as petitioner was sentenced in February, some eight and one half months prior to the effective date of amendment number 515, and as § 2D1.1(b)(4) does not apply retroactively, petitioner is not entitled to any reduction in his sentence as a result of the "safety valve" amendment.
Taken together, petitioner's motion papers, the file, and the records in this case show that the petitioner is not entitled to any relief. Accordingly, a hearing in this matter is not necessary and petitioner's § 2255 petition is denied. A certificate of appealability will not issue since petitioner has not made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253, as amended by the Antiterrorism and Effective Death Penalty Act of 1996. The Clerk of the Court is directed to close the case.
Dated: Brooklyn, New York
March 16, 1998
David G. Trager
United States District Judge