The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
REPORT AND RECOMMENDATION
Jorge Gandia Ortega was convicted by a jury on February 10, 2004, of one count of conspiracy to distribute and possess with the intent to distribute more than five kilograms of cocaine, and of one count of distribution and possession with the intent to distribute approximately twenty kilograms of cocaine. See 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), 846. On June 2, 2005, the District Court sentenced him principally to 360 months in prison. The United States Court of Appeals for the Second Circuit affirmed the judgment of conviction on September 28, 2007. Ortega, who is currently in prison serving his sentence, has petitioned this Court pro se under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.
For the reasons stated below, all of Ortega's claims should be denied with the exception of Ortega's claim that he received ineffective assistance of counsel from Robert Koppelman with respect to his decision to go to trial rather than to plead guilty. As to that claim, the Court is by separate Order appointing counsel for purposes of presenting evidence at a testimonial hearing.
Ortega's recounting of events has changed somewhat during the course of briefing.
Except as otherwise noted, the following facts are either conceded or not contradicted by Ortega based on his most recently-filed declaration.
On January 7, 2003, Ortega and his co-defendant, Claudio Parra, were charged in a two-count indictment. See Indictment, filed Jan. 7, 2003 (Docket # 18 in 02 Cr. 348) ("Indictment"). Count One charged Ortega with conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine, which was alleged to have occurred between 1998 and August 8, 2000. Id. ¶¶ 1-2. Count Two charged Ortega with a substantive count of distribution or possession with intent to distribute approximately twenty kilograms of cocaine. Id. ¶ 4.
Ortega was arraigned on January 17, 2003, at which time he was represented by appointed counsel Lisa Scolari. See Docket Sheet Entry: Arraignment as to Jorge Gandia Ortega Held, dated Jan. 17, 2003 (02 Cr. 348). On February 3, 2003, Larry Bronson filed a notice of appearance on behalf of Ortega. See Appearance, filed Feb. 3, 2003 (Docket # 21 in 02 Cr. 348). In March 2003, Ortega discussed his case with Bronson. See Declaration of Jorge Gandia Ortega, dated Aug. 25, 2009 (annexed as Ex. F to Supplemental Exhibits in Support of Section 2255 Motion, filed Sept. 16, 2009 (Docket # 93 in 02 Cr. 348) ("Pet. Supp. Ex.")) ("Ortega Decl.") ¶ 3. Bronson told Ortega that "the government had only one witness, no Title-III evidence, and no physical evidence to use against [Ortega]." Id. Bronson said that, based upon a "thorough review" of the facts of the case, he thought it would be "foolish" of Ortega to plead guilty and receive a ten-year sentence, given that he "could win at trial and go home." Id. Ortega states that Bronson informed him that if he pled guilty, he was facing 121-151 months and that if he went to trial and lost, he was facing 168-210 months. Id. ¶ 9. Bronson told him that he was risking only an additional 17 months by going to trial rather than pleading guilty. Id. ¶¶ 4, 9.
On March 10, 2003, Bronson wrote a letter to petitioner's wife, Evelyn Guadarrama, regarding Guadarrama's "family's insistence" that Ortega "plead guilty" and setting out the difference in the prison sentence that Ortega would face if he pled guilty rather than going to trial. See Letter from Larry Bronson to Eveyln Guadarrama, dated Mar. 10, 2003 (annexed as Ex. E to Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 (filed Jan. 22, 2009) (Docket # 1) ("Pet. Mot.")) ("Bronson Ltr."). The letter was consistent with what Bronson had told Ortega directly. Bronson wrote that if Ortega "were to plead guilty he [wa]s facing a mandatory minimum sentence of ten years to forty years," and if Ortega was to lose at trial he would face "a minimum of one hundred sixty eight months and a maximum sentence of two hundred and ten months" under the sentencing guidelines. Id. at 1. Bronson then calculated the "difference between th[e] sentence" if Ortega pled guilty and if he went to trial as "one twenty one and one fifty one subtracted from one hundred and sixty eight months." Id. So, Bronson stated, it was "possible" that Ortega "would only receive an additional seventeen months if he were to go to trial and lose, if we are successful he will receive no time in jail." Id. Bronson concluded the letter by giving Guadarrama his opinion of Ortega's case. Id. at 1-2. He stated that the Government's case against Ortega was "based solely on the testimony of an informant[,] Brian Gandy," and because there was "very little difference between the plea agreement and the trial[,] it [wa]s most important for [Ortega] to seriously consider going to trial." Id. at 1. Bronson felt the decision to go to trial was not a "very risky proposition" as they had a "very good chance of discrediting the informer and [because] there [we]re no wiretaps of" Ortega. Id. Finally, Bronson informed Guadarrama that she should send him $5,000 that week. Id. at 2. Ortega was informed of some of the contents of the March 10, 2003 letter by his wife. Ortega Decl. ¶ 5.
In "May or June of 2003," a government witness, Hamlet Gonzalez, informed Ortega that he, Eddy Rosario, and possibly others would be called to testify against Ortega. Id. ¶ 7. Ortega informed Bronson of this conversation. Id. ¶ 8. According to Ortega, Bronson "brushed aside [his] concerns that the government had sufficient evidence against [him] for a conviction if [he] went to trial." Id. ¶ 9. Ortega did not tell Bronson that he wished to plead guilty, but only that he was "seriously considering pleading guilty." Id. ¶ 8.
Some time after his conversation with Gonzalez, but in a time period identified by Gonzalez as "April or May 2003," Koppelman came to see Ortega, informed him that he was an associate of Bronson's, and would be assisting Bronson in representing Ortega. Id. ¶ 11. After that meeting with Koppelman, however, Ortega never saw Bronson again. Id. The docket sheet reflects that Koppelman first appeared at a pre-trial conference in the case on May 15, 2003, see May 15, 2003 Transcript (annexed as Ex. C to Appendix of Declarations and Exhibits in Support of the United States of America's Opposition to Defendant Jorge Gandia Ortega's Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct his Sentence, filed July 29, 2009 (Docket # 89 in 02 Cr. 348) ("Resp. App'x")), and was the sole attorney to make appearances for Ortega after that date, including at Ortega's trial.
Koppelman brought discovery materials to his initial meeting with Ortega. Ortega Decl. ¶ 12. He and Ortega discussed "the nature and status of the government's case" against Ortega. Id. Koppelman "insisted that Gonzalez was the only witness the government had to use against [Ortega]." Id. He advised Ortega to go to trial. Id.
There is no evidence that any plea offer had ever been made by the Government during the period of these conversations with Bronson and Koppelman.
Ortega asserts that in October or November 2003, the Government made a plea offer of eleven years. Id. ¶ 13. At the same meeting where that offer was made, Ortega asserts that "Koppelman debated the strength of their case with the government attorneys." Id. In private, Koppelman informed Ortega that "the government had a weak case, and advised [him] to take [his] case to trial." Id. Ortega does not address what the Government stated at that session with respect to a plea offer, except that it was for "eleven years." Id.
The Government, however, has submitted evidence regarding what transpired at a December 9, 2003 meeting. Handwritten notes by the Assistant United States Attorney assigned to the case, Joon H. Kim, and dated December 9, 2003, indicate the Government's position at that time on Ortega's sentence if he were to plead guilty versus go to trial. See Government Notes, dated Dec. 9, 2003 (annexed as Ex. E to Resp. App'x) ("Gov't Notes"); Declaration of Joon H. Kim, dated July 28, 2009 (annexed to Resp. App'x) ("Kim Decl.") ¶ 5. Kim states in a sworn declaration that his review of the notes shows that he informed Ortega of the sentencing range he would face under the plea offer and the sentence he would face at trial. Kim Decl. ¶ 4. The notes state that "even under [a] very conservative estimate" Ortega's "best case scenario" was that his Guidelines sentence would be 360 months to life if he went to trial. Id. ¶ 5; Gov't Notes at 1. If he pled guilty, he faced 135-168 months. Gov't Notes at 1. The notes state that Ortega's deadline to accept this plea offer was December 12, 2003. Id. In a later internal e-mail, Kim stated that he had conducted a reverse proffer with Ortega in December 2003. See Email from Joon Kim to Richard Daddario, dated Jan. 21, 2004 (annexed as Ex. G to Resp. App'x) ("Jan. 21 Email"). At the reverse proffer, the email stated that Kim had also informed Ortega that his "post-conviction guidelines range would be way above 20 years." Id. (internal punctuation omitted).*fn1
Ortega states that in December 2003, not long after the meeting, Koppelman informed him that the Government had a new plea offer of thirteen years. Ortega Decl. ¶ 14.*fn2 Ortega told Koppelman that he wanted to accept the offer, but Koppelman again told Ortega that the Government's case was very weak and advised him to go to trial. Id. Ortega states that after consulting with his family, he intended to plead guilty. Id. ¶ 15. However, based on Koppelman's "insistence that the choice [Ortega] had was between having a very good chance to win and go free[,] or, in the worst case, doing a short time (17 months) more than [he] would had to do by accepting the government's thirteen year plea if [he] lost," id. ¶ 16, Ortega ultimately did not accept the plea offer.
On January 15, 2004, a pre-trial conference was held at which both Ortega and Parra were present. See January 15, 2004 Transcript (annexed as Ex. L to Resp. App'x) ("Jan. 15 Tr."). At the conference, the government sought to have Parra's bail revoked. Id. at 70. In response to a question from the court, the Government stated that for each count of the indictment "the maximum is life and there is a mandatory minimum of 10 years." Id. at 71. The Government also stated that it had a "strong case that's gotten stronger over time" against Parra. Id. at 73. Among the evidence that the Government highlighted was surveillance by law enforcement, testimony of two cooperators, and physical evidence seized from Parra's home, as well as a home he was seen picking Ortega up from. See id. at 73-74. The Government calculated Parra's sentence, presumably based on a criminal history category of I, as "20 year[s] . . . on the low end if convicted" and potentially 292-365 months based on the Government's claim that Parra had engaged in obstruction because of a false affidavit he submitted. Id. at 75-76. There was no discussion of a guidelines calculation for Ortega, who had a different criminal history.
In January 2004, the Government learned that Ortega had a prior conviction for a drug felony. See Jan. 21 Email.*fn3 In an email dated January 21, 2004, AUSA Kim sought approval from his supervisor to extend a plea offer to Ortega of 235 to 293 months imprisonment. Id. This proposed offer was based on a drug quantity of 150 kg of cocaine and assumed a criminal history category of IV. Id. Kim does not remember if the offer was extended to Ortega. Kim Decl. ¶ 6. On January 22, 2004, the Government filed a prior felony information. See Prior Felony Information, filed Jan. 22, 2004 (Docket # 46 in 02 Cr. 348).
Ortega claims that "[u]ntil the day of trial, [he] did not know that he was going to trial instead of pleading guilty." Pet. Mot. at 16 ¶ 48. On the first day of trial, January 26, 2004, Ortega states that he informed Koppelman that he did not want to go to trial and instead wished to plead guilty. See Ortega Decl. ¶ 17. At that point, Koppelman "conferred with the government's attorneys, and informed [Ortega] that [he] could plead guilty, but that [he] would be . . . exposed to a potential sentence of life imprisonment" due to his prior convictions. Id.
Judge Peter K. Leisure presided over Ortega's trial, which took place in January and February 2004. See Trial Transcripts, filed Mar. 24, 2004 (Docket ## 56, 57 in 02 Cr. 348) ("Tr."). The evidence at trial is not directly relevant to this petition and thus is only summarized briefly. Over the course of a nine-day trial, the Government introduced evidence of Ortega and Parra's involvement in drug trafficking in the form of documents, drug paraphernalia seized from certain residences and cars, testimony of law enforcement officers and defendants' accomplices, and 20 kilograms of seized cocaine.
Eddy Rosario, one of Ortega's accomplices, testified that around 1999 he began to work with Ortega in a cocaine-distribution business in which they imported cocaine from Puerto Rico through couriers, diluted the cocaine's purity, and repackaged and sold it. (Tr. 615; Rosario: Tr. 641-47, 664). Hamlet Gonzalez, the other cooperating witness who testified at trial, began working for Rosario and Ortega around October 1999. (Gonzalez: Tr. 317, 332-33). Individuals brought six kilos of cocaine to New York "taped to their bodies" every two weeks; Gonzalez then worked with Ortega to prepare it to be brought to North Carolina. (Gonzalez: Tr. 334-46). Gonzalez would give proceeds from the sales of the cocaine to Rosario and Ortega. (Gonzalez: Tr. 338; Rosario: Tr. 661-62). Gonzalez traveled to Puerto Rico with Ortega or met him there to bring money to purchase drugs. (Gonzalez: Tr. 338-39; Rosario: Tr. 664-65). In June or July 2000, Rosario hired Parra to help with the drug business. (Gonzalez: Tr. 342). Parra would pick up the couriers from the airport and bring them, with the cocaine, to Gonzalez's apartment.
On August 8, 2000, Parra brought 20 kilograms of cocaine to Gonzalez's apartment on Matthews Avenue in the Bronx. (Gonzalez: Tr. 344-45). Ortega and Gonzalez diluted, packaged and placed the cocaine into a suitcase at the apartment (Gonzalez: Tr. 348-49), after which Parra picked them up in his car. (Gonzalez: Tr. 351-52). Ortega placed the packaging from the cocaine in the trunk of Parra's car, as Ortega had said "it would be a good idea for [Parra] to get rid of them far away from the apartment." (Gonzalez: Tr. 352; Maher: Tr. 51; Mojica: Tr. 205). Parra drove to a parking garage on Webster Avenue in the Bronx, where Ortega and Gonzalez exited Parra's vehicle and entered a black Lexus sport utility vehicle. (Mojica: Tr. 207-08). At that point, law enforcement officers arrested Gonzalez, Ortega and Parra (Maher: Tr. 44-45; 52-53; Gonzalez: Tr. ...