United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
PURSUANT TO 28 U.S.C. § 2255)
HENRY E. HUDSON, District Judge.
By Memorandum Opinion and accompanying Order issued on August 1, 2014 (ECF Nos. 1087, 1088), this Court dismissed all but one claim of Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion"). The remaining claim focuses on the adequacy of trial counsel's representation during the course of plea negotiations. Because several pivotal facts material to the resolution of this claim are in dispute, this Court was unable to find conclusively at the pleading stage that Petitioner was entitled to no relief. See 28 U.S.C. § 2255(b). Accordingly, this Court conducted an evidentiary hearing on January 20, 2015, limited to whether Petitioner was competently counseled concerning his potential sentencing exposure under the U.S. Sentencing Guidelines if convicted by a jury.
As more fully explained in this Court's previous Memorandum Opinion, the Petitioner, Mark Jason Fiel ("Petitioner"), who is presently a federal inmate, was convicted by a jury of this Court of Conspiracy to Violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. §§ 1961-1968; and Conspiracy to Commit Violence in Aid of Racketeering, in violation of 18 U.S.C. § 1959(a)(3). Petitioner was sentenced to 114 months of imprisonment on Count One, and 36 months on Count Two, to be served concurrently. Petitioner's convictions were affirmed by the United States Court of Appeals for the Fourth Circuit on August 2, 2012. Werth v. United States, 493 F.Appx. 361, 364 (4th Cir. 2012).
Succinctly, in Petitioner's remaining claim he contends that "riin light of the recent Supreme Court rulings in Lafler and Frye [, ] counsel fail[ed] to properly advise Movant regarding possible plea." (Pet'r's § 2255 Mot. 5, ECF No. 1029.) This claim is premised on his perception that his counsel failed to effectively negotiate a plea agreement with the United States, specifically by misjudging the chances of acquittal, miscalculating his sentencing guidelines, and inaccurately assessing his possible sentencing exposure if convicted.
According to Petitioner, in the weeks preceding trial his counsel expressed confidence in a favorable outcome. He maintains that she expressed little interest in pursuing a plea agreement, advising that even if convicted he was facing an offense level of 19, and about 36 months of confinement. (Pet'r's Aff. at 2, ECF No. 1029-1.) At some point, the United States "offered a plea agreement of 21-27 months if I pled to Count I and II." ( Id. ) The United States also stipulated in the proposed plea agreement that Petitioner "played no aggravating or mitigating role in the offense." (Gov't's Resp. to Court Order, Ex. 1 at 4, ECF No. 1107-1.) Petitioner alleges that he responded by suggesting that certain language pertaining to the Outlaws Motorcycle Club be removed from the agreement. Ultimately, the modifications he requested were not made by the United States and, according to Petitioner, on advice of counsel, he turned down the plea agreement. (Pet'r's Aff. at 2-3.) In her affidavit, Petitioner's retained trial counsel, Angela D. Whitley ("Whitley"), recalls the events differently. Whitley denies having assessed Petitioner's exposure if convicted at only 36 months. She disclosed to him that the minimum sentence he could receive at a base offense level of 19 would be 36 months, but that depending on the evidence introduced at trial and other possible sentencing enhancements under the guidelines, his sentence could be as high as the statutory maximum of 20 years. (Gov't's Resp. to § 2255 Mot., Ex. 1 ¶ 2 ("Whitley Aft"), ECF No. 1081-1.) Furthermore, according to Whitley's affidavit, Petitioner elected to wait until the jury trying the first group of Outlaws returned a verdict before deciding on whether to plead guilty. The government declined to defer Petitioner's entry of a guilty plea until after the jury returned a verdict. The plea offer was therefore withdrawn. ( Id. ¶ 3.) To resolve the discrepant versions, this Court conducted an evidentiary hearing.
In Missouri v. Frye, the United States Supreme Court reiterated that the Sixth Amendment right to effective assistance of counsel applies to all critical stages of criminal proceedings, including the consideration of plea offers that lapse or are rejected. 132 S.Ct. 1399, 1402 (2012). The court in Frye also emphasized that the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984) governs ineffective assistance claims in the plea bargain context. See Frye, 132 S.Ct. at 1405; Hill v. Lockhart, 474 U.S. 52, 60 (1985). The negotiation and acceptance of a plea offer is a critical stage of the proceedings during which the right to counsel adheres. Lafler v. Cooper, 132 S.Ct. 1376, 1392 (2012).
To prevail on a petition alleging ineffective assistance of counsel under 28 U.S.C. § 2255, a petitioner must first show that counsel's representation was deficient, and second, that the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687. To satisfy the deficient prong of Strickland, the defendant must overcome the "strong presumption" that counsel's strategy and tactics fall "within the wide range of reasonable professional assistance." Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). As to prejudice, a defendant must show 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." Strickland, 466 U.S. at 694. "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
In analyzing ineffective assistance of counsel claims, the Court need not determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Strickland, 466 U.S. at 697. To prove an actionable claim, Petitioner must demonstrate a "reasonable probability of a different outcome." Lenz v. Washington, 444 F.3d 295, 303 (4th Cir. 2006) (internal citations and quotation marks omitted).
In the context of plea negotiations, the Supreme Court in Frye articulated the standard to be used by trial courts in evaluating claims of ineffective assistance of counsel:
To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the court refusing to accept it....
132 S.Ct. at 1409. Given the nuanced art of plea negotiations, reviewing courts have been reluctant to define detailed standards for the proper discharge of defense counsel's participation in the process. Premo, 562 U.S. at 661. Moreover, the Court in Premo cautioned reviewing courts to be mindful of the "potential for the distortions and imbalance that can inhere in a hindsight perspective." Id. A defendant in a criminal case, however, has "no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial." Weatherford v. Bursey, 429 U.S. 545, 561 (1977).
Petitioner's first witness at the evidentiary hearing was Assistant United States Attorney Peter S. Duffey ("Duffey"). (Evidentiary Hr'g Tr. at 6, ECF No. 1129.) Duffey was one of several prosecutors assigned to the Outlaws case. ( Id. at 7.) He testified that he had minimal personal contact with Petitioner's attorney concerning plea negotiations. ( Id. at 7-8.) He was, however, aware of the course of discussions, the terms of the plea offer, and the disputed elements of the statement of facts. ( Id. at 7-12.) Duffey testified that there were several iterations of the statement of facts. ( Id. at 11.) Petitioner took umbrage with the prosecution's characterization of the Outlaws as a criminal organization and the portrayal of his involvement in drug distribution. ( Id. at 18-19.) The prosecution deleted the reference to Petitioner's drug distribution but retained the description of the Outlaws Motorcycle Club as a criminal organization. ( Id. ) There were no conversations with Duffey concerning Petitioner's sentencing exposure if convicted at trial. ( Id. at 21.)
Duffey further testified that he was present in court on November 1, 2010, the date appointed for Petitioner's plea of guilty. ( Id. at 20.) Prior to the opening of court, Petitioner's counsel, Whitley, informed him that her client would not plead guilty until a verdict was returned on the first group of Outlaws on trial at that time. ( Id. at 22, 45-46.) Duffey declined to postpone the plea until the deliberating jury reached a verdict. ( Id. at 46.) The plea offer was withdrawn and the parties had no further negotiations. ( Id. at 20-21, 23.)
Whitley, who had practiced law for twenty years, was called as Petitioner's second witness. ( Id. at 25, 37.) She described her negotiations with Assistant U.S. Attorney Dennis Fitzpatrick ("Fitzpatrick") which culminated in a formal plea offer. ( Id. at 25-30.) Due to a "computer crash" resulting in a loss of pertinent email traffic, Whitley was unable to reconstruct some aspects of the negotiation process, but recalled meeting with the Petitioner to discuss the plea agreement and associated statement of facts. ( Id. at 28.) At this meeting, Petitioner expressed a desire to plead guilty, ...