Digiorgi Alegre v. United States
U.S. Court of Appeals for the First Circuit
Digiorgi Alegre v. United States
Opinion
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1089
CARLOS A. DIGIORGI ALEGRE,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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ERRATA SHEET
The first sentence of the second paragraph on page 11 in this
unpublished opinion dated August 31, 1992, is amended as follows:
Replace "prove his innocence" with "require the government to
prove his guilt."August 31, 1992
[NOT FOR PUBLICATION]
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No. 92-1089
CARLOS A. DIGIORGI ALEGRE,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
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Before
Torruella, Cyr and Stahl,
Circuit Judges.
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Lydia Lizarribar-Masini on brief for appellant.
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Daniel F. Lopez-Romo, United States Attorney, and Jorge E. Vega-
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Pacheco, Assistant United States Attorney, on brief for appellee.
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Per Curiam. Carlos A. Digiorgi-Alegre
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("Digiorgi") seeks to invalidate his guilty plea to charges
of aiding and abetting the distribution and sale of cocaine.
28 U.S.C. 841(a)(1); 2 U.S.C. 2. His petition under 28
U.S.C. 2255 to set aside his conviction and sentence was
dismissed without an evidentiary hearing. This appeal
challenges the district court's rejection of his claim that
ineffective assistance of counsel rendered his plea
involuntary. We affirm.
BACKGROUND
BACKGROUND
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At the change of plea hearing, the government outlined
its case. It would show that on two separate occasions
Digiorgi, with the assistance of others, had sold cocaine to
a federal agent. The government represented that, in
addition to the testimony of an informant and the undercover
agent who had consummated the sales, it had available the
following evidence: a record of conversations and photographs
taken at the first sale, video recordings of the second
larger sale (involving a kilogram of cocaine), and another
agent's testimony regarding Digiorgi's post-arrest statements
as to how he had obtained the cocaine.
After detailed explication and cautions by the district
judge, Digiorgi admitted that he had knowingly aided and
abetted another in the second cocaine sale. He acknowledged
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his signature on and acceptance of a written plea agreement1
filed with the court pursuant to Rule 11(e) of the Federal
Rules of Criminal Procedure. Digiorgi testified that no one
had made any other promise which had induced him to plead
guilty. He said that he was fully cognizant of the nature of
the charges and the consequences2 of pleading guilty. The
court accepted the plea, and three months later sentenced
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1. In parts relevant to this appeal, the plea agreement
indicated petitioner's understanding 1) of the penalty range
for the offense to which he would plead guilty, namely the
distribution more than 500 grams of cocaine, 21 U.S.C.
841(a)(1), 2) that the government would recommend the minimum
sentence in accordance with the sentencing guidelines, 18
U.S.C. 3551 et seq., 3) that the government would request
the dismissal of petitioner's indictment on charges resulting
from the first cocaine sale, and 4) that he could not
withdraw his plea solely on the basis of the sentence
actually imposed.
The plea tendered carried a statutory minimum sentence
of five years and a maximum sentence of forty years, a fine
not to exceed two million dollars, or both, plus a term of
supervised release of at least four years. Section
841(b)(1)(B)(ii) also states: "Notwithstanding any other
provision of law, the court shall not place on probation . .
. any person sentenced under this subparagraph. No person
sentenced under this subparagraph shall be eligible for
parole during the term of imprisonment imposed therein." See
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also 18 U.S.C. 3561(a)(2) (Probation may not be imposed
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when expressly precluded by statute.)
2. The court engaged in the following exchange at the plea
hearing:
COURT: Mr. Digiorgi, did you hear the Assistant
COURT
U.S. Attorney state the penalty range for the
offense to which you are pleading guilty?
DEFENDANT: Yes.
DEFENDANT
COURT: And do you understand, sir, that .
COURT
. . you are not eligible for parole or probation?
Are you aware of that?
DEFENDANT: Yes.
DEFENDANT
Appellant's Appendix at 84-85.
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Digiorgi, in accordance with the negotiated plea agreement,
to the statutory minimum term of 60 months, a supervised
release term of four years, and a mandatory penalty of $50.
One and one-half years later Dogiorgi filed this 2255
motion. It alleges, inter alia,3 that his plea was induced
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by his attorneys' misrepresentations regarding sentence and
probation, and was rendered involuntary because his counsel
did not file a single motion or seek discovery in aid of his
defense, had failed to file a change of plea petition,
pursuant to local rule, as "ordered" by the district court,
and had advised him prior to sentencing using the pre-
sentence report of another defendant in another case. The
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motion also alleged: "The lack of effective assistance of
counsel prejudiced me as I was made to take a plea without
proper legal representation, losing the opportunity of going
to trial to prove my innocence." In an affidavit attached to
the motion, Digiorgi's wife averred that she was present when
his attorney explained that a guilty plea would net only a
sentence of probation. If the "correct sentence" had been
explained, the affidavit concluded, "we would not have agreed
to my husband accepting culpability." Subsequently the
petitioner filed an affidavit in Spanish, but it is
incomplete, unsigned, and untranslated in the record.
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3. We address only those allegations and issues preserved by
appropriate objection to the magistrate's report and raised
and argued on appeal.
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The government's response and opposition to the 2255
motion included detailed affidavits4 from Digiorgi's two
retained attorneys who had represented him from arraignment
through sentencing. Both attested that Digiorgi had admitted
to them, at the outset, his participation in the offense.
Each stated that they had met with Digiorgi on several
occasions to discuss and evaluate the discovery material
supplied by the government, including laboratory test results
and agents' written reports, as well as the results of
attorney interviews with the agents in the case. Both
attorneys denied that probation was offered or deemed
probable. Rather, the plea agreement was predicated on a
definite term of incarceration to be served. Even so, the
client was clearly advised that the ultimate decision as to
sentence was with the presiding judge, regardless of the
recommendations of the parties. The affidavits also
indicated that the government's reports were fully discussed
and translated prior to the change of plea, and that even
though Digiorgi understood English, he had an interpreter at
the plea hearing. The attorneys affirmed that Digiorgi fully
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4. While not dispositive of the ultimate question of
attorney effectiveness, see United States v. Butt, 731 F.2d
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75, 77-78 (1st Cir. 1984), such "evidence against a
petitioner's extra-record contentions [may be] so
overwhelming as to justify a conclusion that an allegation of
a dishonored plea agreement does not raise a substantial
issue of fact." Blackledge v. Allison, 431 U.S. 63, 82 n.25
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(1977) (internal punctuation and attribution omitted).
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understood the evidence and charges against him, and had
accepted the plea agreement as preferable to the risk of
trial. They maintained that pre-trial motions had been
deemed unnecessary because, early on, the government had
provided full discovery, and because Digiorgi, who was
arrested during the offending transaction, had provided no
evidence in his own defense. In reply, petitioner, without
more, moved for a hearing.
A magistrate found that the record belied petitioner's
assertions that he was misinformed about the penalties he
would incur if he pled guilty, and concluded that even if
counsels' performance was otherwise constitutionally
inadequate under Strickland v. Washington, 446 U.S. 668
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(1984), the petitioner had failed to show a reasonable
probability that, absent those errors, he would not have
pleaded guilty. Hill v. Lockhart, 474 U.S. 52 (1985). The
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remaining grounds for relief were deemed frivolous, and
dismissal was recommended. The district court agreed.
DISCUSSION
DISCUSSION
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To begin, in order for a plea to be voluntary and
knowing in a constitutional sense, a defendant must be
"fairly apprised of its consequences." Mabry v. Johnson, 467
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U.S. 504, 509 (1984). Normally, the plea and sentencing
proceeding records interpose "a formidable barrier in any
subsequent collateral proceeding", and the statements of the
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defendant and his lawyer at such a hearing are presumed to be
true. Blackledge v. Allison, 431 U.S. 63, 74 (1977) ("The
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subsequent presentation of conclusory allegations unsupported
by specifics is subject to summary dismissal. . . .") The
initial "critical question" is whether petitioner's 2255
allegations, when measured against the record are "palpably
incredible" or "palpably frivolous or false". Id. at 76
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(attributions omitted). For 2255 purposes, summary
dismissal is permitted when such allegations even if true
would not entitle the petitioner to relief, or, as we
conclude is the case here, when they cannot be accepted as
true because "they are contradicted by the record, inherently
incredible, or conclusions rather than statements of fact."
Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir. 1990)
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(attribution omitted).
To set aside his plea, Digiorgi must allege, and
ultimately prove, not only that his counsels' representation
fell below an objectively reasonable standard, but also show
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it likely that that constitutionally deficient performance
actually affected the outcome of the plea process. Hill v.
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Lockhart, 474 U.S. at 57-59.
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I
_
As to the first Hill requirement, petitioner's
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allegations fail to state a claim of attorney incompetence:
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a. Digiorgi's contentions that his counsel misinformed
him about sentence and probation do not withstand scrutiny.
Specifically, his claim was that "the Government had agreed
to a suspended sentence and that if I did not accept [guilt]
I would get a sentence of ten years to life."
Contemporaneous with the plea change, however, Digiorgi filed
a written plea agreement indicating his awareness that the
statutory minimum term of five years would be recommended by
the government. At the plea hearing he said that he
understood the penalty range and sentencing guidelines for
the offense to which he pleaded guilty. In addition, the
district court specifically informed him that he was not
eligible for probation or parole. See note 1. At sentencing
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three month later, in arguing for the minimum sentence of
five years, petitioner's attorney stated that Digiorgi "is
well aware that there is no probation in this case."
Digiorgi attempted to cast doubt on the presumed
regularity of the plea hearing by filing his wife's
affidavit. She attested to witnessing a conversation in
which her husband's attorney stated that a guilty plea was
the best decision as the only sentence would be probation.
These assertions, filed almost one and one-half years after
sentencing, are countered, by the express denials contained
in the affidavits of both counsel, and are also contradicted
by Digiorgi's assurances at the plea colloquy. There is no
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sworn statement by the petitioner detailing his attorneys
alleged misrepresentations to him. In sum, the records and
files in the case reliably show that Digiorgi knew what the
government would recommend and which sentence the court could
impose. Petitioner's claimed reliance on probation is clearly
refuted by the record.
b.
II
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Second, to survive dismissal, Digiorgi must sufficiently
allege prejudice, i.e., that with adequate representation he
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would not have changed his plea and would have insisted on
going to trial. Hill, 474 U.S. at 60; United States v.
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Giardino, 797 F.2d 30, 31 (1st Cir. 1986). Thus, even if we
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assume, arguendo, that everything Digiorgi says is true and
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that, despite the present state of the record, he could prove
that his counsel were incompetent, he nonetheless bears the
additional burden to show that "but for counsel's
unprofessional errors, the result of the proceeding would
have been differest." Strickland v. Washington, 466 U.S.
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668, 694 (1984).
Here, Digiorgi alleges, or rather, concludes that by
pleading guilty he lost the opportunity to go to trial and
require the government to prove his guilt. He has not
alleged that he would have withheld his guilty plea had he
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known that probation was unavailable. Hill requires that:
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"in order to satisfy the 'prejudice' requirement, 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." 474 U.S.
at 59. Digiorgi's recent marriage, the only circumstance
alleged to support particular reliance upon probation in
deciding to plead guilty, presumably remains an equally
plausible reason to plead guilty even when probation is
unavailable. Petitioner offers no other reason why he would
have risked trial and a higher penalty exposure had his
counsel correctly informed him in that regard.
But even allowing that Digiorgi had sufficiently alleged
the prejudice prong of Hill v. Lockhart, the record presents
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a barrier that conclusively undermines any reasonable
probability that petitioner would have insisted on going to
trial.
Digiorgi now contends that he was induced to enter a plea
because of misrepresentations made by his retained counsel.
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