The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
This is a § 2255 petition which offers four attacks on the
judgment of guilty and the sentence. They are simple to state.
One, Petitioner Juan Almonacid ("Almonacid") says his defense
counsel gave him bad advice on whether to accept a plea. Two, he
claims defense counsel should have gotten the "safety valve"
reduction for him. Three, he alleges counsel should have
prevented imposition of the fine on grounds of indigency. Four,
he states counsel failed to make an adequate challenge to the
Almonacid was charged with conspiracy with intent to distribute
more than five kilograms of cocaine. There were many defendants
and the case was split into different trials, both here and in
Vermont, but it is best characterized as the Catano conspiracy
case even though Catano was never tried and Almonacid's counsel
offered his opinion that Catano was dead. Many people worked for
Catano. There was evidence from other conspirators (whose role
was to transport money and drugs) that Almonacid received
delivery of 130 kilograms in four separate shipments all made
to Chicago. The leading transporter also testified that Almonacid
had driven him to a meeting with Catano. Another conspirator
(Catano's girlfriend) testified she saw Almonacid meet with
Catano almost every day and she testified that Catano's only
occupation was drug dealing. A final conspirator (who was responsible for
picking up and storing cocaine) testified that he heard Almonacid
say that Catano's group had just moved 500 kilos of cocaine, that
he saw Almonacid hand cocaine to a chemist that Catano had hired
to test the drugs, and that after the conspiracy was broken up,
he saw Almonacid and Catano together in Colombia.
There was very little corroboration of this from uninvolved
witnesses. There was some evidence of suspicious conduct by
Almonacid, who rented an apartment in his name for Catano to use
in Chicago, gave useless address information when purchasing a
car, and promptly moved out of a house on which the rent had been
paid when the drug ring was broken suddenly by police action.
The defense was based on tough cross-examination of the
accomplices and a suggestion that Almonacid was not the
"Cookieman" about whom the witnesses testified. Almonacid offered
the testimony of another conspirator, Demirjian (convicted in a
separate trial). Demirjian testified that he was the Cookieman.
The jury returned a verdict of guilty and found that there were
more than 50 kilos of cocaine. The Court of Appeals affirmed the
verdict against challenges to the sufficiency of the evidence and
the removal of a juror. Almonacid subsequently filed this
petition under 28 U.S.C. § 2255.
Section 2255 relief is limited to situations in which a federal
criminal petitioner's conviction or sentence is based on "an
error of law that is jurisdictional, constitutional, or
constitutes a fundamental defect which inherently results in a
complete miscarriage of justice." Bischel v. United States,
32 F.3d 259, 263 (7th Cir. 1994). If I find that any such error
occurred, I must vacate or set aside Almonacid's sentence, after
which he will be discharged, resentenced, or granted a new trial. Lee v. United States, 113 F.3d 73, 77
(7th Cir. 1997) (citing 28 U.S.C. § 2255). In reviewing his
petition, I must review the record and draw all reasonable
inferences in favor of the government. Carnine v. United
States, 974 F.2d 924, 928 (7th Cir. 1992). However, because
Almonacid has filed his petition pro se, his petition is
entitled to a liberal reading. Blake v. United States,
841 F.2d 203, 205-06 (7th Cir. 1988).
The issues properly before me are only those related to the
performance of counsel. There is no constitutional ground on
which the sentencing decisions I made can be challenged on their
merits. The law with respect to challenges to effective
assistance of counsel is well developed. Almonacid needs to show
that counsel made errors so serious that they fall outside of a
wide range of acceptable professional conduct. If this showing is
made, Almonacid must prove that he was prejudiced by these
mistakes, i.e., that there is a reasonable probability that the
outcome would have been different if the mistakes were not made.
There is a fairly strong presumption of competence and a bar
against routine second-guessing. See Strickland v. Washington,
466 U.S. 668 (1984) Lockhart v. Fretwell, 506 U.S. 364 (1993)
Holman v. Gilmore, 126 F.3d 876 (7th Cir. 1997). I consider
the claims with respect to sentencing first.
The safety-valve issue revolves around the criteria that a
defendant fully cooperate with the government and answer all of
its questions about the offense and related offenses. All that is
claimed here with respect to the safety-valve is that which
Almonacid's lawyer presented to me that Almonacid offered
information that might help authorities find Catano and one other
fugitive. This could not possibly be all of the information
Almonacid had concerning the offense because it did not reveal
his own conduct or that of others in committing the offense.
Indeed, his allocution made it clear he was unwilling to speak
candidly about his role in the offense. He offered to help the government find two men whom the government
wanted and for whose apprehension the government might well have
given some benefit, but he did not give the complete information
required to invoke the safety-valve, which can apply even where
the government acquires no information of any value to it.
Defense counsel could not have done any better than he did. He
recited what the facts were and asked for leniency, which
fulfills his duty. There was also no prejudice. See United
States v. Harris, 230 F.3d 1054 (7th Cir. 2000).
The failure to argue for waiver of the fine is not ineffective
assistance. Almonacid was educated and had conducted a legitimate
business. He had retained counsel. His assertion that he had no
assets was not verified, and whatever assets he might have would
be in far-off Spain. I concluded that he had the ability to pay a
fine while in custody and, indeed, he seems to be doing so. One
of his reasons for seeking remission of the fine is that the
Bureau of Prisons takes a percentage of the money he receives
from his family in Spain in order to pay the fine. He wishes to
use all the money for his own purposes. He seems to believe that
the funds sent to him are not his but those of his family. Of
course, when he receives them and the power to use them, they
become his funds. In any event, defense counsel cannot be
criticized for failing to seek remission of the fine. I doubt
that Almonacid would have wanted to disclose all information
concerning his finances. In any event, my assessment that the
fine would be paid, at least in part, turns out to be correct and
there is no proof of prejudice.
The drug quantity claim is difficult to comprehend because
defense counsel did attack, with some vigor, the amount the
government sought to attribute to Almonacid. In the end, I
essentially accepted his argument because I attributed to
Almonacid only the quantity that he personally handled. I made no
formal finding because the sentence I wanted to impose, and did, was permissible under both guidelines the one the government
wanted and the one the defense wanted. There is no cause to
conclude that defense counsel did a bad job and, even if he had,
there was no prejudice.
The core issue in this petition is the plea offer that the
government stipulates that it made to Almonacid, who is serving a
sentence just short of twenty years. The agreement was a plea to
two counts of using a telephone to facilitate a drug trafficking
offense. Had he agreed to this, Almonacid would face a maximum
penalty of eight years. In fact, given the probable Guideline
calculations, it would have been a minimum of eight years as
well. In effect it was a deal for an eight-year sentence.
Defense counsel told Almonacid about the deal and discussed it
with him. What defense counsel did was to describe his view of
the evidence and recommend rejection of the plea. Almonacid
understood it was his decision to make, but says that on the
basis of what defense counsel said to him and to his wife, he was
discouraged from accepting the plea.*fn1
The rule is that defense counsel must inform their clients of
plea offers and remit the decision to the client while offering
their best advice. In some jurisdictions, courts rejected any
argument that a conviction could be challenged for bad advice
leading to rejection of a good plea deal on the grounds that the
defendant received all he was due a fair trial on the charge. A defendant could pursue only a civil suit for damages against the
lawyer. See German v. United States, 525 A.2d 596 (D.C.App.
1987). But this proposition did not carry the day. See State v.
Donald, 10 P.3d 1193 (Ariz.Ct.App. 2000) (discussing cases).
In our Circuit, a petitioner can prevail by showing that counsel
was ineffective in ...