United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
GERALD BRUCE LEE, District Judge.
THIS MATTER is before the Court on Petitioner David Allen Maloy's ("Petitioner") Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("§ 2255 Motion") (Doc. 79). Petitioner entered into a plea agreement with the Respondent ("Government") pursuant to Rule 11 of the Federal Rules of Criminal Procedure after which this Court imposed a sentence of 120 months of imprisonment. Petitioner now challenges his sentence on the basis of his incompetence to enter a guilty plea, ineffective assistance of counsel, and error by this Court.
There are three issues before the Court. The first issue is whether this Court should grant Petitioner's § 2255 Motion where the Petitioner claims that he "was not competent on the day of his plea, causing his plea to be involuntary" (Doc. 93). The second issue is whether this Court should grant Petitioner's § 2255 Motion where the Petitioner claims that his counsel was ineffective by failing (1) to inquire into the effects of Petitioner's medications on his ability to comprehend the plea hearing and (2) to notify the Court about these conditions (Docs. 80, 93). The third issue is whether this Court should grant Petitioner's § 2255 Motion where the Petitioner alleges that this Court erred by failing to inquire further into the effects of Petitioner's medications on his ability to enter a plea.
The Court denies Petitioner's § 2255 Motion. After careful consideration of the testimony presented at the evidentiary hearing, the plea hearing record, and the Court's recollection of Petitioner's demeanor during the plea hearing, the Court finds that Petitioner entered his plea knowingly and voluntarily. Further, Petitioner has made no showing of prejudice and Petitioner has not presented evidence that his counsel rendered ineffective assistance of counsel.
Petitioner brought this § 2255 action against the Government alleging (1) that his plea was not knowingly and intelligently made; (2) that his counsel was ineffective for failing to investigate Petitioner's competency before entering the plea and failing to review and prepare for Petitioner's sentencing; and (3) error by this Court during the Rule 11 colloquy for failing to conduct a sufficient inquiry into how the medications Petitioner was taking affected his competence to enter the guilty plea (Docs. 79, 80, 93).
On May 26, 2011, Petitioner was indicted for mail fraud in violation of 18 U.S.C. §§ 1341 and 2 (Counts 1-7), and for unlawful monetary transactions in violation of 18 U.S.C. §§ 1957 and 2 (Counts 8-9) (Doc. 18). On March 10, 2011, the Government filed a Motion to Appoint Local Counsel for Petitioner (Doc. 8). On March 15, 2011, this Court granted the Government's Motion (Doc. 9). Thereafter, this Court appointed Assistant Federal Public Defender Todd M. Richman ("counsel") to provide assistance to Petitioner in this matter including during the plea agreement and sentencing.
On September 14, 2011, this Court conducted a plea hearing and a colloquy pursuant to Federal Rule of Criminal Procedure 11 (Doc. 81). Petitioner pled guilty to one count of mail fraud in violation of 18 U.S.C. 1341, which carried maximum penalties of a term of 20 years imprisonment, a fine of $250, 000 or twice the amount of gross gain or loss, full restitution, a special assessment, and three years of supervised release (Doc. 39). Thereafter, the Court, on the Government's motion, dismissed six other counts of the indictment (Doc. 42). On March 26, 2012 this Court sentenced Petitioner to 120 months in the custody of the Bureau of Prisons ("BOP") and a term of three years supervised release with conditions (Docs. 72, 83),
Under the terms of the plea agreement, Petitioner waived his right to (1) appeal the conviction and any sentence within the statutory maximum or the manner in which the sentence is determined and (2) request or receive from the Government records pertaining to the investigation or prosecution of this case, including records sought under the Freedom of Information Act, FOIA, 5 U.S.C. § 552, or the Privacy Act, 5 U.S.C. § 552a (Doc. 39 at 4). Petitioner did not appeal his sentence.
On March 11, 2013, Petitioner, proceeding pro se, filed timely a timely § 2255 Motion to Vacate, Set Aside, or Correct Sentence (Docs. 76, 80). The Government filed its Opposition on June 18, 2013 (Doc. 83). Petitioner's retained counsel filed a Reply on October 30, 2013 (Doc. 93). On November 1, 2013, the Government filed a Sur-reply Brief to Petitioner's Reply alleging that Petitioner's pleading through his retained counsel raised new issues (Doc. 94).
In his pro se Petition, Petitioner alleged that his appointed counsel rendered ineffective assistance when he: (1) induced Petitioner to accept the plea by telling Petitioner that he would likely receive a sentence of house confinement or a year or two at most of imprisonment; (2) advised Petitioner against making any statement to the Judge during the plea hearing because it could have a negative impact on his sentencing; (3) failed to inquire further into Petitioner's competency to enter a plea and to alert the court that petitioner was in poor physical and mental condition; and (4) failed to challenge the amount of loss at the sentencing hearing (Docs. 80 at 3-5; 93 at 4, 7).
On March 12, 2014, the Court conducted an evidentiary hearing on the factual disputes. Petitioner appeared with retained counsel (Evidentiary Tr. at 1). At the evidentiary hearing, Petitioner abandoned his claims of ineffective assistance of counsel where (1) counsel failed review and prepare for Petitioner's sentencing by not arguing about the loss amount and (2) counsel instructed Petitioner not to make any statements to the Court (Evidentiary Tr. at 26). Petitioner did not pursue the allegations that he was induced to accept the plea when counsel allegedly told Petitioner that he would likely receive a sentence of house confinement or a year or two at most of imprisonment.
Petitioner now asserts three arguments in support of his § 2255 Motion. First, Petitioner argues that he was not capable of following and understanding the plea proceedings at the plea hearing because he was under the influence of medications capable of causing confusion and hypnotic sedative effects (Evidentiary Tr. at 4, 6, 58). The parties have stipulated to these side effects. Id. Petitioner took double the dosage of the two medications before the plea hearing. Id. Petitioner claims that his mind was cloudy from these drugs on the day of the plea hearing and throughout the entire plea process. Id. at 60. Thus, had his mind been clearer he would have understood what he was doing and could have made a different decision. Id. at 60.
Second, Petitioner claims that he was "zoned out" on the day of the plea hearing. Id at 59. He argues that under Strickland v. Washington, 466 U.S. 668 (1984), his counsel should have inquired about his state of mind and well being. Id. Had counsel done so, Petitioner may have entered the plea at a later date when he was more focused or he may have considered going to trial. Id.
Finally, Petitioner argues that under United States v. Damon, 191 F.3d 561, 564 (4th Cir. 1999), the Court erred by not inquiring into Petitioner's medications and their effects on his ability plead guilty. Id. at 59-60, 67-71.
The Government asserts five arguments in opposition of Petitioner's § 2255 Motion. First, the Government argues that, on the day of his plea, Petitioner was fully informed and intended on pleading guilty as Petitioner met and discussed the plea extensively with counsel and signed the plea papers before the plea hearing (Evidentiary Tr. at 62). Second, the Government argues that Petitioner did not state that he experienced cognitive side effects from his drugs any time prior to the day of the pleading. Id. Third, the Government argues that Petitioner's demeanor during the plea hearing did not raise any concerns under Damon. Id. Further, Petitioner's counsel did not observe any symptoms of the possible side effects of the drugs throughout his entire time of representing Petitioner. Id. Fourth, the Government argues that Petitioner's credibility is questionable as he is an "admitted fraudster" and because Petitioner equivocated over which date he was not feeling well and collapsed at the airport. Id. at 63. Finally, the Government argues that Petitioner has not carried his burden of establishing deficiency of counsel and resulting prejudice under Strickland; United States v. Fugit, 703 F.3d 248 (4th Cir. 2012); United States v. Dyess, 730 F.3d 354 (4th Cir. 2012).
A. Standards of Review
Under 28 U.S.C. § 2255, a prisoner in federal custody may move the court, which imposed the sentence, to vacate, set aside or correct sentence upon grounds that (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence exceeds the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255 (2008). The Petitioner bears the burden of proof and must establish by a preponderance of the evidence that he is entitled to the collateral relief sought. Vanater v. Boles, 311 F.2d 898, 900 (4th Cir. 1967); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958); United States v. Hawkins, 2012 WL 3578924, at 1 (E.D.V.A. Aug. 17, 2012).
Section 2255 provides a safeguard against complete miscarriages of justice by allowing for the correction of constitutional, jurisdictional or other fundamental errors. See United States v. Addonizo, 442 U.S. 178, 185 (1979); Hill v. United States, 368 U.S. 424, 428 (1962); Hawkins, 2012 WL 3578924, at *1. Section 2255 is not intended to be a substitute for an appeal, thus "to obtain collateral relief based on trial errors to which no contemporaneous objection was made, " petitioner must make a showing of both "cause" and "actual prejudice resulting from the errors. " United States v. Frady, 456 U.S. 152, 165-67 (1982). The Frady cause and prejudice standard also applies to "collateral challenges to unappealed guilty pleas." United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir. 1994).
An ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal. Massaro v. United States, 538 U.S. 500, 504 (2003); Dretke v. Haley, 541 U.S. 386, 394 (2004) (stating that ineffective assistance of counsel claims, may be raised "as a ground for cause or as a freestanding claim for relief-to safeguard against miscarriages of justice."); see also United States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998); United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991).
To prevail on a § 2255 Motion on the grounds of ineffective assistance of counsel, Petitioner must show that (1) counsel's performance was deficient, and (2) counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. Petitioner must show that counsel's performance "fell below an objective standard of reasonableness." Id. at 688. The court's "scrutiny of counsel's performance must be highly differential." Id. 689. The court must endeavor to eliminate the distorting effects of hindsight. Id. Thus, the court must "evaluate the conduct from the counsel's perspective at the time" and "indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. 699. Even if the Court finds that counsel made unprofessional errors, Petitioner must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. 694.
In support of his motion, Petitioner raises three arguments. First, Petitioner alleges that he was physically and mentally incapable, due to drug interactions, of understanding the terms of his plea agreement(Doc. 80). Second, Petitioner alleges ineffective assistance of counsel during his plea hearing and sentencing causing his plea to be involuntary. See Docs. 79 at 5; 80 at 4-5; 93 at 4, 7. Finally, Petitioner alleges that the Court erred in not conducting a thorough inquiry, during the Rule 11 colloquy, into the effects of Petitioner's medications on his competence to enter a guilty plea (Doc. 93 at 4-7). The Court will address each argument in turn.
a. Competency at the Plea Hearing
The Court denies Petitioner's § 2255 motion on the basis of incompetence to enter a plea because Petitioner has not demonstrated that, due to the side effects of the drugs he had taken, he was cognitively impaired at the time that he entered his plea.
Pursuant to Rule 11 of the Federal Rules of Criminal Procedure, before a court accepts a plea of guilty or nolo contendere, the court must address the defendant (1) in person, in open court and advise him of his rights, (2) ensure that the plea is voluntary, and (3) determine the factual basis for the plea. Fed. R. Crim. P. 11 (b)(1-3). "A court must personally inform the defendant of and ensure that he understands the charges against him and the consequences of his guilty plea." Damon, 191 F.3d at 564. A guilty plea is an admission in open court of a defendant's past conduct; it is the defendant's consent that judgment of conviction may be entered without a trial-a waiver of his constitutional right before a jury or judge. Brady v. United States, 396 U.S. 742 (1970). Thus, a guilty plea must not only be voluntary but must be a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences. Id. "The Rule 11 colloquy is designed to provide a structure to protect the defendant against making an uninformed and involuntary decision to plead guilty and to protect the public from an unjust judgment of guilty when a public trial has not been conducted." United States v. Nicholson, 616 F.3d 376, 381 (4th Cir. 2012) quoting United States v. Bowman, 348 F.3d 408, 417 (4th Cir. 2003).
Petitioner attacks his sentence on the grounds that he was incompetent during the plea hearing because of the medications that he took that morning (Doc. 80). Petitioner took several medications before the hearing, including buprenorphine and lorazepam (Evidentiary Tr. at 3). Allegedly, he took double the prescribed dosage of both pills before the plea hearing (Evidentiary Tr. at 3-4). The drugs allegedly caused some cognitive impairment as Petitioner claims to have "felt kind of out of it basically" (Evidentiary Tr. at 4). Petitioner testified that he had trouble following the discussion with the Court and that "it just seemed like I was, again, zoned out, just high. Everything was being said and just wasn't registering" (Evidentiary Tr. at 5). Petitioner further testified that throughout the entire process from discussing the plea with his counsel and entering his plea in this Court, "his mind was cloudy from the drugs" (Evidentiary Tr. at 60). In sum, Petitioner argues that but for the "handicap of the cognitive side effects, he could well have made a different decision." Id.
Petitioner and the Government have stipulated to the fact that some people who take lorazepam and buprenorphine have experienced confusion, sedative or hypnotic effects, dizziness, and hallucinations (Docs. 118, 121). Petitioner claims to have experienced "a clearing of his mind, " after he stopped taking buprenorphine and lorazepam (Evidentiary Tr. at 59). Petitioner argues that the clearing of his mind, the parties' stipulation to the drugs' possible side effects, and his testimony about "the way that he felt on the day" of the plea, are sufficient facts to support his alleged cognitive impairment during the plea process (Evidentiary Tr. at 59).
The Government argues that neither Petitioner's guilty plea nor sentence contravenes the Constitution or the laws of the United States because Petitioner has not carried his burden under United States v. Truglio, 493 F.2d. 574 (1974). In Truglio, the Supreme Court held that a petitioner alleging that he was incompetent to plead guilty due to the medication he had taken must demonstrate "that his mental faculties were so impaired by the drugs when he pleaded that he was incapable of full understanding and appreciation of the charges against him, of comprehending his constitutional rights and of realizing the consequences of his plea." Truglio, 493 F.2d. at 578 (citation omitted).
The Government maintains that under Truglio, Petitioner's allegations lack merit because he entered the plea in a knowing and intelligent manner. The record demonstrates that Petitioner fully intended to plead guilty and signed the plea papers before the hearing. (Evidentiary Tr. at 62). Here, Petitioner "did not testify that he was out of it or zonked out any time prior to the day of the plea hearing." Id. Petitioner traveled to Virginia with the fully formed intention to enter a guilty plea. Id. There is no indication in the plea record that Petitioner's mental faculties were impaired during the plea hearing. While entering his guilty plea, Petitioner "conducted himself at the proceeding as a defendant who was acting knowingly and intelligently" (Doc. 83 at 7). Petitioner appeared to follow what was going on, and answered questions accurately (Evidentiary Tr. at ...