Diaz Gallego v. United States
U.S. Court of Appeals for the First Circuit
Diaz Gallego v. United States
Opinion
USCA1 Opinion
September 26, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1148
RICARDO DIAZ-GALLEGO,
Defendant, Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Cyr and Boudin, Circuit Judges.
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Ricardo Diaz-Gallego on brief pro se.
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Guillermo Gil, United States Attorney, and Jose A. Quiles
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Espinosa, Senior Litigation Counsel, United States Attorney's
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Office, on brief for respondent.
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Per Curiam. Ricardo Diaz-Gallego appeals the
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denial of his motion to vacate a conviction and sentence
under 18 U.S.C. 2255. We affirm.
Appellant and several other persons were indicted
in May, 1987, for possession with intent to distribute
approximately 1700 kilograms of cocaine on board a vessel
subject to the jurisdiction of the United States, in
violation of 46 U.S.C. App. 1903, and 18 U.S.C. 2. He
initially pled not guilty, but then moved to change his plea
to guilty. A joint hearing was held on August 25, 1987, at
which the district court accepted appellant's guilty plea, as
well as the guilty pleas of three of his codefendants.
Appellant was later sentenced to forty years in prison, a
ten-year term of supervised release, and a special monetary
assessment of $50. He did not appeal. This 2255 motion
was filed in September, 1989.
Appellant argues that the district court erred in
declining to hold an evidentiary hearing on his application
for post-conviction relief. However, there is no presumption
in favor of an evidentiary hearing under 2255. United
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States v. McGill, 11 F.3d 223, 225-26 (1st Cir. 1993).
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Rather, the 2255 petitioner bears the usual burden of
persuading the court that his motion cannot be effectively
"heard" on the papers. Id. at 225. An evidentiary hearing
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is unnecessary when the petitioner's allegations merely state
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conclusions instead of facts, are contradicted by the record,
inherently incredible, or invalid as a matter of law. Id. at
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226 (citations omitted); United States v. Mosquera, 845 F.2d
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1122, 1124 (1st Cir. 1988). In addition where, as here, a
2255 petition is brought before the judge who also presided
at the previous proceedings, the judge may make findings
based on his own knowledge of the proceedings without
convening an additional hearing. McGill, 11 F.3d at 225.
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We find no error in the court's decision to
dispense with an evidentiary hearing under this standard.
There was also no error in the court's decision that
appellant's contentions, discussed seriatim below, failed to
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establish a "fundamental defect" in the plea and sentencing
proceedings, or any other reason for relief under 2255.
See Laliberte v. United States, 25 F.3d 10, 13 (1st Cir.
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1994) (observing that 2255 relief is available after
sentencing only for "a fundamental defect which inherently
results in a complete miscarriage of justice," or "an
omission inconsistent with the rudimentary demands of fair
procedure") (citations omitted).
First, appellant challenged the authenticity of the
transcript of the change of plea hearing produced from the
government's files. In support, appellant pointed to the
difficulties which both he and the court had experienced in
obtaining a copy of the transcript. On several occasions
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beginning in November, 1989, the magistrate ordered the court
reporter to produce a copy of the transcript for appellant,
but the reporter had apparently misplaced his notes. The
magistrate ultimately obtained a transcript, and issued a
report in March, 1992. Appellant, however, alleged that he
had not received a transcript copy, and petitioned this court
for a writ of mandamus in January, 1993. The government's
response to the mandamus petition appended a transcript copy,
along with a certificate of service, so we denied the
petition on the assumption that appellant had thus received
his copy.
Nonetheless, appellant then informed the district
court that he still had not received the transcript. In an
abundance of caution the court ordered the clerk to send to
appellant yet another copy of the transcript which the
government had made available. Appellant finally conceded
receipt of a transcript copy thus produced, but then
objected, without further specifics, that it was an
"invention."
While the delay occasioned by these events is
troubling, appellant's generalized objection to the
authenticity of the transcript is refuted by the record
facts.
The transcript which the government produced included the
court reporter's certification. This certification was
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credited by the district judge, who had also presided over
the change of plea hearing, as prima facie proof of the
authenticity and accuracy of the transcript. See 28 U.S.C.
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753(b) (1982) (transcript certified by designated court
reporter "shall be deemed prima facie a correct statement of
the testimony and proceedings"); United States v. Ochs, 548
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F. Supp. 502 (S.D.N.Y. 1982) (relying upon statutory
presumption), aff'd, 742 F.2d 1444 (2d Cir. 1983), cert.
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denied, 464 U.S. 1073 (1984). In addition, the origin and
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accuracy of the transcript is corroborated by docket entries
which reflect that in June, 1989, the court reporter produced
an original transcription for codefendant Agressot-Coas.
(Dkt. 124). Both Agressot-Coas and codefendant Padilla-
Pallacios have pursued appeals based on seemingly identical
transcript copies without any challenge to the accuracy of
its contents. Since the material portions of the hearing
were identical for all three defendants, and appellant
offered no facts to the contrary, the district court's
reliance on the reporter's certification, and presumably the
court's own memory, was not clearly erroneous. See McGill,
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11 F.3d at 223 n.2 (on a 2255 motion, fact-based findings
are reviewed for clear error) (citations omitted).
Second, appellant attacked the validity of his plea
and sentence with an allegation that his attorney falsely
assured him, or the government falsely promised, that he
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would be sentenced to no more than ten years in prison. As a
result, he claimed that his plea was involuntary, uninformed,
and rendered without the effective assistance of counsel.
The existence of such a promise, however, is
contradicted by facts in the record, including appellant's
own sworn testimony and the documents he filed. Appellant
signed a plea agreement which reserved the government's right
to "allocution" at the time of sentencing, but left the
sentence itself to the "sound discretion of the court." He
acknowledged in open court that he understood that his plea
agreement in no way curtailed or diminished the power of the
court to impose a penalty up to the maximum provided by law.
He said that he understood the charge against him, the
minimum and maximum penalties of imprisonment that might be
imposed (ten years to life), and swore that his guilty plea
was not induced by any outside predictions or prophesies of
the ultimate sentence to be imposed.1 His change of plea
was accepted only after a thorough exploration of all
elements of a knowing and voluntary guilty plea under Rule
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1. Appellant alleges that he was misled by the court's use
of the words "predictions" or "prophecies." He claims he
would have answered differently had the court instead used
the word "promises." Whatever the semantic possibilities,
this assertion, too, is refuted by the record which shows
that appellant specifically denied any collateral "promises"
when he subsequently completed the written plea petition.
Moreover, "we have never held the district courts to a
formula of magic words" in meeting the requirements of Rule
11." United States v. Medina-Silverio, 1994 WL 364135 at *3
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(1st Cir. July 19, 1994).
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11. Fed. R. Crim. P. 11; see Medina-Silverio, 1994 WL 364135
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(detailing core elements required of a rule 11 colloquy and
collecting cases). Appellant then reiterated his
understanding of the court's full authority, the maximum
penalty that might be imposed, and the absence of any
collateral promises, in a written plea petition completed
after the hearing. He also omitted any mention of the
promise he now alleges when he appeared for sentencing.
"A defendant is ordinarily bound by his or her
representations in court disclaiming the existence of
additional promises." Bemis v. United States, 1994 WL 376057
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at *2 (1st Cir. July 22, 1994) (citations omitted); see also
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Hernandez-Hernandez v. United States, 904 F.2d 758, 762 (1st
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Cir. 1990) (sworn Rule 11 statements are presumptively true);
United States v. Butt, 731 F.2d 75, 80 (1st Cir. 1984) (a
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defendant will not be heard to controvert his Rule 11
statements in a subsequent 2255 motion unless he offers a
valid reason for departing from the apparent truth of his
earlier statements).
In the absence of unusual facts that might lend
plausibility to appellant's belated contradiction of his own
sworn testimony, the court did not err in rejecting his
conclusory allegation without an evidentiary hearing.
Compare Bemis, slip op. at 7-8 (in unusual circumstances,
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where appellant offered affidavits from two former
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prosecutors, and pointed to specific supporting facts,
evidentiary hearing should be held); Hernandez-Hernandez, 904
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F.2d at 762-63 (evidentiary hearing should be held where
petitioner supported his claim with an affidavit containing
specific factual detail as well as the affidavits of five
corroborating witnesses). Likewise, we see no error in the
court's conclusion, after a thorough review, that there was
no support in the record for appellant's further allegation
that but for the alleged misrepresentation he would not have
pled guilty. See Hill v. Lockhart, 474 U.S. 52, 59-60 (1985)
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(in order to show "prejudice" from alleged counsel errors, a
defendant must show that there is a reasonable probability
that he would not have pled guilty but would have gone to
trial).
Third, appellant argued that his counsel rendered
ineffective assistance after the change of plea hearing
because counsel did not attend the subsequent debriefing
sessions, "utterly failed to assist appellant" at the
sentencing hearing, and did not rebut an alleged governmental
representation that appellant's cooperation had been minimal.
Again, however, the record contradicts appellant's
factual assertions. At the sentencing hearing counsel made a
detailed objection to the presentence report based on
appellant's "substantial cooperation" with the government.
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The government neither denied nor minimized appellant's
cooperation, but agreed with counsel's representations, and
the court was thus persuaded to take appellant's assistance
into consideration. Further, the court invited appellant to
speak on his own behalf, but appellant indicated that he was
content with his counsel's representations.
The district judge, who had presided at both
hearings, concluded that appellant was competently
represented, and suffered no prejudice due to counsel's
absence from the debriefings. While legal questions are
reviewed de novo, a claim of ineffective assistance of
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counsel is a mixed question of law and fact. Strickland v.
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Washington, 466 U.S. 668, 698 (1984). When the mix is fact-
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dominated, as it is here, we necessarily place relatively
greater reliance on the fact-finder. See McGill, 11 F.3d at
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226 n.2 (observing differences in courts' approaches to
review of ineffective assistance claims). Further deference
is due the judge's first-hand observations of counsel's
performance. Id. at 225. Appellant points to nothing
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suggesting error in the court's conclusion and we see no
error.
Lastly appellant asserts two challenges to the
statutory authority for his sentence. Neither argument was
properly preserved for appeal, but we note that both
contentions appear foreclosed by our decisions in related
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appeals brought by appellant's codefendants. In Padilla-
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Palacios v. United States, 932 F.2d 31, 33 (1st Cir. 1991),
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following the Supreme Court's decision in Gozlon-Peretz v.
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United States, 498 U.S. 395 (1991), we rejected the
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contention that the district court erred in imposing a
mandatory term of supervised release for this crime,
committed during the "hiatus period" between two different
versions of the federal drug law. We also found, in
circumstances indistinguishable from those attending
appellant's plea, that the codefendant's rights were not
otherwise violated by the court's statement at the joint
change of plea hearing that it would not impose a term of
supervised release. Padilla-Palacios, 932 F.2d at 35. In
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United States v. Agressot-Coas, Dkt. no. 89-1187, slip op. at
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9 n. 10 (1st Cir. May 23, 1990), we rejected the other
statutory challenge, that the increased imprisonment
penalties in the Anti-Drug Abuse Act of 1986, 21 U.S.C.
960(b), did not apply to this crime. Since the ADAA penalty
provision was enacted seven months before the date that this
crime was committed, and there was no expression by Congress
of a contrary intent, we concluded that the district court
had correctly applied the increased penalty provision in this
case. Accord Gozlon-Peretz, 498 U.S. at 404 (applying the
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general rule that statute takes effect on date of enactment
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in absence of a clear contrary direction by Congress to
interpretation of other provisions of ADAA).
In sum, appellant has demonstrated neither his
entitlement to an evidentiary hearing on, nor error in the
denial of, the motion for relief under 28 U.S.C. 2255.
Affirmed.
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