The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Vernado Parker pled guilty to a charge of conspiracy to possess in excess of five kilograms of cocaine with intent to distribute, and the Court sentenced him to a 121 month prison term. Parker has filed a motion to vacate the conviction and sentence pursuant to 28 U.S.C. § 2255. After determining that an evidentiary hearing was required on at least one of the claims Parker asserted, the Court appointed counsel to represent him. The Court ultimately conducted an evidentiary hearing on two of Parker's claims. This constitutes the Court's findings of fact and conclusions of law.
1. The Charges and the Disposition
Parker was charged, along with a number of other defendants, in a thirty-three count superseding indictment. The charges against Parker included conspiracy to possess in excess of five kilograms of cocaine with intent to distribute (Count 1), possession of an unspecified amount of cocaine with intent to distribute (Count 15), and eleven charges of use of a communication facility to facilitate the charged conspiracy (Counts 4, 12, 16, 18, and 21-29).
After several days of trial, Parker entered a guilty plea to the conspiracy charge pursuant to an oral plea agreement. As part of the plea agreement, he admitted that he was responsible for 50 to 150 kilograms of cocaine in connection with the offense. The Court later sentenced Parker to 121 months imprisonment.
2. Parker's Section 2255 Motion
Parker filed a pro se section 2255 motion. His claims, which the Court pieced together by reading in tandem the motion, supporting affidavit, and supporting memorandum, were as follows:
1) Trial counsel gave him inaccurate advice regarding the implications of his agreement to a drug quantity of 50 to 150 kilograms of cocaine. Counsel advised him that the "worst case" scenario was a seven year sentence. He told counsel that he was not responsible for 50 to 150 kilograms and did not want to admit to that and that he wanted to admit only to 15 kilograms. Counsel advised him that the quantity did not matter because he would get the same sentence no matter what quantity was involved. Counsel's advice, Parker contends, amounted to ineffective assistance.
2) Trial counsel rendered ineffective assistance by failing to object to the drug quantities upon which the Court relied at sentencing. Parker contends that he was not, in fact, responsible for the entire quantity used as the basis for his sentence and that certain amounts were improperly imputed to him.
3) The Court sentenced him based on an inaccurate drug quantity determination.
4) The Court should not have imposed the mandatory minimum term of supervised release, because the application of the safety valve made the mandatory minimum inapplicable.
5) He asked his attorneys to file an appeal, but they failed to do so and thus rendered ineffective assistance.
The Court initially ordered a hearing on claim five, Parker's claim that his attorneys rendered ineffective assistance by failing to file a notice of appeal. After the Court appointed counsel, Parker filed an amended petition in which he elaborated on that claim as well as claim one, his claim of ineffective assistance concerning the advice he was given about the implications of the plea agreement. The Court then expanded the hearing so that it also covered that claim.
At the evidentiary hearing, both Parker and his trial attorneys testified. There were three other witnesses: a man who accompanied Parker to a meeting at his lawyer's office concerning the proposed plea deal and later attended the sentencing hearing, and two men who attended the sentencing hearing. The Court finds the facts as follows, having made judgments regarding the credibility of the witnesses and the weight to be given their testimony.
After several days of trial, on Friday, February 9, 2007,*fn1 the prosecutors contacted one of Parker's attorneys and conveyed an offer for a plea bargain. The prosecutor stated that if Parker pled guilty to the conspiracy charge and stipulated to a drug quantity of 50 to 150 kilograms of cocaine, the government would agree to dismiss the remaining charges and would recommend a two-level reduction for acceptance of responsibility and application of the "safety valve" under the Sentencing Guidelines. The prosecutor advised that Parker would have to provide a written safety valve "proffer" as a condition of the government's acceptance of the deal.
The attorney contacted Parker, who went to the attorney's office along with several friends with whom he consulted at various times during his meeting with the attorney. Parker's other attorney was not present for the meeting. Defense counsel set out for Parker the terms of the prosecutor's proposal as described above. Counsel told Parker that he had to accept the offer that day, or the trial would continue the following Monday.
Defense counsel told Parker that the charge to which he would be pleading guilty carried a ten year mandatory minimum prison term. She told him, however, that if he qualified for the safety valve, the mandatory minimum would not apply. Both of these statements were accurate.
One of the disputed issues concerns what defense counsel told Parker about the likely sentence. Parker testified that counsel told him that if he qualified for the safety valve, he likely would get a seven year sentence if the Court "was in a bad mood" and that the actual time he served on a seven year sentence would be less than that. Parker's friend Derrel McDavid, who was present during parts of Parker's meeting with defense counsel, testified that counsel told Parker that with the safety valve, he would get a seven year sentence if the Court was in a good mood and could get further time off for good behavior and participation in a drug program.
Defense counsel testified that she told Parker the ultimate sentence would be up to the Court. She stated that she did not definitively tell Parker what the sentence would be, as she had no way of knowing what sentence the Court would impose. She denied telling Parker that the best case scenario was a seven year sentence.
Counsel did, however, recall telling Parker that the worst case scenario would be a ten year sentence. In other words, based on counsel's own testimony, she claims to have advised Parker that the worst sentence he could get was a sentence of 120 months, that is, one month below the low end of the Guidelines range.
Counsel also testified that she went over with Parker the actual amount of time he would serve on a 120 month sentence. She testified that she advised Parker that with time off for good behavior, the possibility of a further reduction if he was able to get into a drug treatment program in prison, and "halfway house" time of six months at the end of his sentence, he would serve approximately seven years of actual prison time on a 120 month sentence.
The Court finds that counsel advised Parker that if he accepted the government's terms, the worst he would get was a mandatory-minimum sentence of 120 months. The Court further finds that counsel told Parker, accurately, that application of the safety valve would enable the Court to impose a sentence below the mandatory minimum. Counsel made no promise, however, that Parker would get a sentence lower than the mandatory minimum. That said, the Court is persuaded that counsel predicted the Court was likely to impose a sentence lower than 120 months, based on the application of the safety valve and other mitigating factors. That is consistent with counsel's admission that she told Parker that 120 months was the worst-case scenario, and it is supported by the testimony of Parker and McDavid that counsel predicted a lower sentence.
The Court also finds that during the meeting, Parker balked at admitting to a quantity of 50 to 150 kilograms of cocaine. He believed that he was responsible for, at the most, 15 kilograms. Counsel did not recall Parker expressing any disagreement with the 50 to 150 kilogram quantity. But confirmation of Parker's reluctance to admit to responsibility for 50 to 150 kilograms is found in the safety valve proffer that defense counsel submitted to the prosecutor in late April 2007. Counsel prepared the initial proffer together with Parker. It included a discussion of his claimed involvement in narcotics dealing but said nothing about quantities. Defense counsel told Parker she thought the prosecutor would reject the proffer for that reason, and the prosecutor in fact did so. Defense counsel then prepared a revised proffer together with Parker and submitted it to the prosecutor in mid-May 2007, shortly before the sentencing hearing. This version of the proffer discussed some amounts but said that two of the government's cooperating witness had grossly exaggerated the amounts they attributed to Parker. The proffer also contained this language:
However, consistent with my guilty plea, and consistent with the Supreme Court's mandates in North Carolina v. Alford, 400 U.S. 25 (1970), (as that case was explained to me by my attorneys) and based on the evidence that I have reviewed involving my case, I concede that I distributed at least 50 kilograms of cocaine but less than 150 kilograms. It is my belief that the actual amount was closer to the minimum of 50 kilograms.
In short, even in the final version of the proffer, Parker did not squarely admit a 50-150 kilogram quantity but rather "concede[d]," in the manner of an Alford plea, that the government had evidence to support that quantity. All of this, in the Court's view, supports a finding that at the February 9 meeting, Parker expressed reluctance to agree to a quantity of 50-150 kilograms. The Court so finds.
Counsel told Parker that if he did not admit to responsibility for 50 to 150 kilograms, the government would not agree to the deal, including the safety valve. Parker testified that he understood the government's agreement to the safety valve was required before the safety valve could be applied. Defense counsel denied telling Parker this. She testified credibly that although she believed the government's agreement to the safety valve would be beneficial, she understood the government's agreement was not legally required in order for the safety valve to apply. Counsel conceded during her testimony, however, that she did not advise Parker that the government's agreement on the safety valve was not legally required. The Court finds that counsel's comments and omissions led Parker to believe that the government's agreement was a condition for application of the safety valve and that she told him he had to agree to a quantity of 50 to 150 kilograms if he wanted the government to agree to the safety valve.
Parker testified that defense counsel advised him that an admission to 50 or more kilograms would not affect his sentence and that he would get the same sentence based on that quantity as he would get if he admitted to only 15 kilograms. The Court finds Parker's testimony in this regard credible. Counsel did not seem to appreciate fully that the quantity of drugs involved might affect the Court's consideration of the sentencing factors under 18 U.S.C. § 3553(a), completely aside from how it would impact the Sentencing Guidelines calculation.
Parker testified that had he known he could have gotten the safety valve without agreeing to a quantity of 50 to 150 kilograms, he would have jumped at the chance. The Court finds that testimony credible. Based, however, on his misunderstanding regarding the need for the government's agreement on the safety valve and the conditions for such an agreement, Parker agreed, albeit reluctantly, to the stipulated drug quantity.
The plea deal gave Parker three benefits: the government's agreement that he was entitled to a two-level reduction for acceptance of responsibility (the "third point" was never a possibility given the timing of the guilty plea); its agreement on the safety valve; and its agreement to dismiss the remaining counts of the indictment. The agreement to dismiss the remaining charges was only superficially beneficial to Parker. None of the other charges implicated the possibility of a consecutive sentence, as all arose from the same alleged course of conduct. Sentencing Guidelines calculations in narcotics cases are premised largely on the overall quantity of narcotics for which the defendant is responsible, a fact established in this case via the stipulation, not the number of counts. And even aside from the Guidelines calculation, it mattered not whether Parker pled guilty to one, two, or ten charges arising from the same scheme or course of conduct.
The government's agreement on the other two points (acceptance of responsibility and the safety valve) was beneficial to Parker because it decreased the likelihood that the Court would reject those reductions. The government's agreement was not, however, legally required for Parker to get the benefit of the favorable Guidelines reductions involved. The Court finds that Parker was unaware of this, because trial counsel did not tell him that the government's agreement was not required and in fact led him to believe the opposite.*fn2
- Defense counsel accurately communicated to Parker the terms of the government's plea offer.
- Counsel told Parker that if he agreed to the government's proposal, a 120 month sentence was the worst case scenario. She predicted, but did not promise, ...