The opinion of the court was delivered by: David O. Carter United States District Judge
ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255
Before the Court is Petitioner Satish Shetty's ("Petitioner") Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 (the "Motion"). The Court finds the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; Local R. 7-15. After considering the moving, opposing, and replying papers thereon, and for the reasons stated below, the Court hereby DENIES the Motion.
On November 26, 2003, Petitioner Satish Shetty ("Petitioner") was indicted with five counts of bank fraud in violation of 18 U.S.C. §1344, and four counts of money laundering in violation of 18 U.S.C. §1956(a)(1)(A)(1). Petitioner was alleged in these indictments to have devised and participated in a scheme to defraud mortgage lenders. On December 8, 2003, Petitioner entered a plea of "not-guilty" to all counts. On March 8, 2004, a motion filed by Petitioner for the suppression of evidence was denied by this Court. On April 8, 2004, pursuant to a written plea agreement, Petitioner plead guilty to Count Two (bank fraud) and Count Eight (money laundering) of the first superseding indictment. Petitioner was sentenced to fifteen months imprisonment on December 20, 2004. Petitioner now asks that the Court vacate, set aside, or correct his sentence.
A motion to vacate, set aside, or correct sentence of person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief:
[i]f the court finds that...there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.
The standard of review of § 2255 petitions is "stringent" and the court "presumes earlier proceedings were correct." United States v. Nelson, 177 F. Supp. 2d 1181, 1187 (D. Kan. 2001) (citation omitted). In a successful § 2255 motion, the "defendant must show a defect in the proceedings which resulted in a 'complete miscarriage of justice.'" Id. (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). It is important to note that "relief is not available merely because of error that may have justified reversal on direct appeal." United States v. Frady, 456 U.S. 152, 165 (1982); United States v. Addonizio, 442 U.S. 178, 184 (1979).
Petitioner requests relief under 28 U.S.C. § 2255 based on a claim of ineffective assistance of counsel (Sixth Amendment violation). There is a two prong test to challenge guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 57-60 (1985). First, "[w]hen a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 57. (Quoting Strickland v. Washington, 466 U.S. 668, 687-688 (1984)) (commonly referenced as the "performance requirement"). Secondly, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial...." Hill, 474 U.S. at 59. This second prong is commonly referenced as the "prejudice requirement." Judicial scrutiny of counsel's performance is "highly deferential."
Strickland, 466 U.S. at 689. Consequently, there is a presumption that "counsel's conduct falls within the wide range of reasonable professional assistance [and] that...under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id.
Although Petitioner sets forth a series of arguments attempting to prove his counsel's representation was unreasonable, the Court finds that Petitioner's counsel was reasonable. Consequently, Petitioner fails to satisfy the first prong of proving his guilty plea was the result of ineffective assistance of counsel. Because Petitioner fails the first prong, the Court finds it unnecessary to address whether Petitioner would not have plead guilty but for his counsel's actions.
Petitioner alleges that counsel was ineffective in various ways, including: (1)failing to attain consent prior to filing of plea; (2) failing to advise Petitioner of meritorious defenses; (3) failing to obtain or utilize a grand jury transcript; (4) failing to prepare for trial; (5) failing to adequately consult with the Petitioner; (6) failing to object to a violation of Federal Rule 11; (7) failing to advise Petitioner about possible immigration consequences; (8) failing to realize that Petitioner was incompetent to plead; (9) failing to inform Petitioner of the nature of the charges against him or the terms of the plea agreement; and (10) failing to notify the Court of a disagreement between counsel and Petitioner. The Court now addresses why each argument fails to show how Petitioner's counsel was ineffective.
A. Counsel Filed Plea Without Consent
Petitioner alleges his plea was filed without consent for two reasons. First, Petitioner argues that counsel coerced him into signing the plea agreement. Petitioner further alleges that he agreed to the plea because he feared that counsel would "withdraw from the case." Second, Petitioner alleges that his plea was the result of coercion perpetuated by the Court. Accordingly, Petitioner argues that there was ineffective assistance of counsel as his plea was made without consent.
"Whether defendant has pled voluntarily depends upon the competence of counsel's advice,...insofar as it affects the defendant's knowledge and understanding." 9 FED. PROC., L.ED. Criminal Procedure § 22 (2008). Because the guilty "plea is more than an admission of past conduct[,] it is the defendant's consent that judgment of conviction may be entered without a trial - a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." United States v. Gearin, 496 F.2d 691, 695-696 (5th Cir. 1974). (Footnotes omitted). In determining whether waivers are voluntary, knowing, and intelligent, the court "should look to the totality of the circumstances evidenced by the record to determine whether a plea was voluntarily and intelligently made." Id. at 696.
The Government has submitted several documents which demonstrate the Petitioner's consent to the plea agreement. First, the Plea Agreement states that Petitioner: (1) understood the agreement; (2) was advised of his rights; and (3) entered into the agreement voluntarily and without threatened force. Second, the transcript from the Change of Plea Hearing, held on April 8, 2004, indicates that the Petitioner responded affirmatively when asked if it was true that he understood the agreement and entered into it voluntarily and free of force. Lastly, the transcript of the December 20, 2004 sentencing indicates that the Petitioner was again questioned by the Court concerning the voluntariness of the agreement. The transcript indicates that the Court asked Petitioner if he would prefer a trial and sought affirmation of his acceptance of a 15-month sentence. Petitioner's counsel, after discussing the matter with Petitioner, indicated on record that Petitioner accepted the sentence. Petitioner has not claimed that his counsel deceived the Court in relaying this acceptance.
Petitioner additionally alleges that the these statements were the result of coercion perpetuated by the Court. At the Change of Plea Hearing, held on April 8, 2004, the Court stated that Petitioner's counsel had done a "good job" in negotiating the plea. During sentencing, on December 20, 2004, the Court inquired whether the Petitioner would prefer to go to trial but stated that Petitioner would receive the maximum sentence if convicted. Petitioner alleges that these statements amounted to coercion by the Court which left the Petitioner unable to voice his disagreement. However, these statements made by the Court do not constitute threats sufficient to make Petitioner's acceptance of the plea involuntary. The statement that Petitioner's counsel had done a "good job" in no way implicates a threat against the Petitioner or suggests retribution for a failure to plead. Additionally, a plea is not considered involuntary when it is induced by a fear of greater penalty upon conviction after trial. See Brady v. U.S. 397 U.S. 742, 90 S.Ct. 1463 (1970).
B. Counsel Failed to Advise Petitioner of Meritorious Defenses
Petitioner alleges that counsel was ineffective for failing to advise him of two meritorious defenses. First, Petitioner alleges counsel was ineffective for failing to note that the statute of limitations had run on Count Six. Secondly, Petitioner argues that he was incorrectly charged with Count Two because the bank at issue was not ...