The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 AND TO ENTER JUDGMENT FOR RESPONDENT
On June 20, 2004, Petitioner Ruben Quintero timely filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.
Petitioner was charged by Superseding Indictment with use of a communication facility in connection with a drug offense in violation of 21 U.S.C. § 843(b). Petitioner pleaded guilty pursuant to a written Plea Agreement. The Plea Agreement specifically stated:
The defendant has read the charges against him contained in the Indictment and the Superseding Information in this case, and the charges have been fully explained to him by his attorney. Further, the defendant fully understands the nature and elements of the crimes with which he has been charged, together with the possible defenses thereto, and has discussed them with his attorney.
3. Agreements by the Defendant.
(g) Defendant, Ruben Quintero, hereby acknowledges the benefits he has received pursuant to the plea disposition set forth in this memorandum and his guilt of the offenses [sic] to which he is pleading guilty. Defendant hereby waives all rights to contest the means by which his plea of guilty will be entered before the District Court. This waiver includes, but is not limited to, any claim, whether in District Court or in appellate proceedings and on direct appeal or subsequently, that the dictates of Federal Rule of Criminal Procedure 11, or any successor Rules, legislation or case authority, were not followed in the entry of defendant Quintero's guilty plea. The defendant is also aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed. Acknowledging all this, the defendant knowingly waives the right to appeal, on any ground whatsoever, any sentence so long as the initial term of imprisonment is four (4) years or less. The defendant also waives his right to challenge his conviction, sentence or the manner in which his sentence was determined in any collateral attack, including but not limited to a motion brought under Title 28, United States Code, Sections 2255 or 2241. ...
4. Joint Agreements By The Parties.
(a) The defendant and the government agree and stipulate that the amount of controlled substances involved in the defendant's offense is approximately 3024 grams of a mixture or substance containing cocaine base/crack. The mixture or substance containing cocaine base/crack was 53% pure resulting in 1602 grams of pure cocaine base/crack.
The defendant will plead guilty because he is in fact guilty of the crime set forth in the Superseding Information. The defendant also agrees that his guilty plea will be based upon the following facts, although he acknowledges that, as to other facts, the parties may disagree:
Between approximately September 18, 2002 and September 30, 2002, in Fresno County, State and Eastern District of California, defendant Ruben Quintero was a member of a conspiracy to distribute, and possess with intent to distribute, cocaine base/crack. On or about September 30, 2002, defendant Ruben Quintero Roman [sic] engaged in several telephone conversations with his brother Manuel Quintero. Those telephone conversations concerned arrangements for Ruben Quintero and Dalia Roman (Manuel Quintero's girlfriend) to watch out for law enforcement while Manuel Quintero sold cocaine base/crack to someone. On September 30, 2002, Dalia Roman and Ruben Quintero traveled to the apartment complex at 3207 West Shields Avenue, Fresno California in order to watch out for law enforcement while Manuel Quintero negotiated the sale of cocaine base/crack. At all relevant times, defendant Ruben Quintero and his co-conspirators knew that cocaine base/crack is a controlled substance.
Petitioner was sentenced to 48 months incarceration and a 12 month term of supervised release. Petitioner did not file an appeal. Petitioner raises a number of grounds for relief:
I. Whether counsel was ineffective upon lack of objection to the District Court Non- Discretionary Nature of Imposition of Supervise [sic] Release under Apprendi v. New Jersey?;
II. Whether counsel was ineffective upon allowing a plead guilty [sic] without information of the 'voluntary; freely and intelligent elements' where the absence of assurances of the first 'core concerns of be free of coercion and promises are lacking?;
III. Whether counsel was ineffective at sentencing hearing upon lack arguments regarding: (a) entranpment [sic] and manipulation sentence, (b) his client foreseeability of '2 kilos of cocaine', (c) his client was less culpable and entitled to four level downward departure upon minimal role, (d) did no [sic] call for sentencing hearing the co-defendants' [sic] Manuel and Dalia to support the minimal role and does not contact nor call the movant families (mother and sister) to entice the minimal role under the facts of the case?;
IV. Whether miscarriage of justice is an exception to the enforcement of waivers?;
V. Whether counsel was ineffective upon lack of information to his client regarding the 'law' as applied to the facts of the present case which did tainted [sic] the plead guilty as unknowingly, unvoluntary [sic] and unintelligently taken?;
VI. Whether counsel was ineffective upon movant plead guilty was the product of (a) coercion, (b) 'unlawfull out-of-court package deal bargain based in [sic] his co-defendant's Manuel Quintero cooperation/agreement, (c) out-of-court counsels and drug enforcement agents 'secretive' package deal agreement?;
VII. Whether the District Court committed plain error and abuse it [sic] judicial function in accepting as factual basis of guilty plea 'mere association and communication with the perpetrator of the criminal activity?;
VIII. Whether counsel failure to minimum affording an Alford plea and/or calling for pretrial hearing before the recommendation of guilty plea was entered?
In support of his motion, Petitioner submits the following declaration:
2. - I was never aware of any conversations regarding drug deals from Manuel Quintero and an [sic] confidential informant. I was never present when both discussed a three kilogram cocaine purchase and I was not in any countersurveillance, since I was not present at such meetings.
3. - During the arrest day on September 20, 2002, I was asked from Dalia's my sister in law to pursue a ride to the Manuel apartment. I was visiting my mom like every-day after work. When I arrived to the apartment with Dalia's, Manuel came to the car and instructed me to leave the area and I did so, I was think that because Manuel was to his apartment some trouble was present between him and Dalia in their relationship.
4. - I plead guilty to the offense based on my lawyer recommendation that because I had answered a phone call in the arrest day I was guilty of conspiracy, I had no prior conversations nor had understand the law nor the facts of the case, counsel at no moment had explained me anything regarding the case. It was my understanding from the beginning that I would be release based in agreement between the counsels and the government for Manuel cooperation, later counsel informing that only boot camp would be permitted due to no enoughly Manuel cooperation and when sentence was schedule counsel had informed that I would be sentence to camp or probatory and after sentence had said that I was allowed to have one year reduction mandatory.
5. - During all times, trial counsel had informed that the case was enterily depending of what Manuel was to do to handle his own case, because Manuel guilty was also me 5 guilt. Nonbody informed me that I would not be culpable for association or family 6 relationship alone.
6. - Counsel treathening and coerce me to plead guilty because according to counsel the government was so powerfull that no way to win the case was possible. I had no prior convictions nor association with anything regarding dope-deal, the attorney had informed that the government was discussing with him that I was involved on dope-deal in the past years, I had very clear informed to the counsel that it was untrue and that at no moment I was involved in anything regarding dope.
Based upon the foregoing motion of & 2255, I believe that there is presented an ineffective assistance counsel, had I knowingly that the law was regarding the present case I would with fiar and just reason asserted my trial right at any cost. [SIC]
Petitioner also submits a declaration by Manuel Quintero:
2. This declaration/affidavit is made to support a Motion under & 2255 of Ruben Quintero who also was charged with possession and intent to distribute cocaine base/crack and conspiracy to distribute cocaine base/crack, in violation of 21 U.S.C. & 841, I learned through my personal participation in the outcome of the case that Ruben's was later charged with superseding information under communication to permit the narcotic transaction under 21 U.S.C. & 843(b) and by consultation with my trial attorney.
3. I had no negotiated the transaction described from Agent's Campbel affidavit on or About August 25, 1999 wherein appear I had sold to detective Epifanio Cardenas one ounce of cocaine while him was working in an undercover capacity. Such affirmation was a perjuris and had only looking the objective of 'bolstering' the case to allowed the communication with the confidential informant Michael's. I had know the confidential informant as Michael or simply Mike, but at no moment with or without Michael had I sold any cocaine to any undercover agent's as appear in the D.E.A. Special agent affidavit.
I had not knowledge of such factor, nor had my lawyer discussed with mine in fully the truth of such transaction, would I be allowed a face to face discussion with the named Epifanio Cardenas him would no point such factor as different to perjury and if allowed or believed from the prosecution it would be against the laws of the nature to think I had been do so. I personally when had been sold any dope had a personal knowledge of any customer.
4. I had discussed on September 19, 2002 with Michael (C.I.) the selling of three powder kilograms of cocaine. Before this meeting years before when I had selling any dope to Mike, it was powder and Mike in my presence had been cooking into crack you own dope based in the factor that I was never interested in selling or be involved in the crack cocaine transactions/business. I had personal knowledge that Mike had always transformed any powder cocaine into crack in order to selling to Mike distributors.
5. After I came to prison, I learned that Mike had been arrested for crack cocaine transactions and today I understand that it was the main factor which let him intent involvement with mine in the crack/enterprises. I had not knowledge nor was discovered from my lawyer's that Mike was incorporating with law enforcement agencies in order to hope a favorable treatment with regard to his own drug trafficking offense.
6. I am responsible for what happen on September 30, 2002, when I was arrested and charged in the offense I did made an agreement which is fair called out-of-court agreement with my lawyer, my lawyer promised me that if I plead guilty and cooperated with the government my brother and co-defendant's Manuel would be release of the offense, I had explained to both my lawyer and the government agents that my brother had nothing to do with the transaction or offense and that my brother had no the minimum knowledge of what I was and had been done on the arrest day.
7. When I plead guilty to the offense, my lawyer told me, that pressure in my brother was necessary in order to I obtain lenient sentence and that if my cooperation was not enough, my brother should be sentenced to both camp or probation. There was an out of court agreement between my lawyer, the government and myself to plead guilty and enticing my brother to do the same in exchange of lenitent sentence based on my cooperation and release or boot camp to my probation or alternatively probation sentence.
8. I had not called to Ruben, my intention was always call to my law common wife's Dalia, but she had asked Ruben to be brought through a ride in the Ruben's car, since she had no car available.
9. I had no knowledge that the law of the United States doesn't permitted guilty for association or guilty for familirelationship, it was no ...