Argued: January 26, 2012
Appeal from an order of the United States District Court for the Northern District of New York, Thomas J. McAvoy, Judge, denying motion pursuant to 28 U.S.C. § 2255 to vacate judgment or sentence on the ground of ineffective assistance of counsel in connection with plea of guilty and sentencing.
MOLLY K. CORBETT, Albany, New York (Lisa A. Peebles, Acting Federal Public Defender for the Northern District of New York, Albany, New York, on the brief), for Petitioner-Appellant.
PAUL D. SILVER, Assistant United States Attorney, Albany, New York (Richard S. Hartunian, United States Attorney for the Northern District of New York, Albany, New York, on the brief), for Respondent-Appellee .
Before: KEARSE, CABRANES, and SACK, Circuit Judges.
KEARSE, Circuit Judge:
Petitioner Pedro Gonzalez, who was convicted in 2001, on his plea of guilty, of narcotics and bribery crimes and sentenced principally to 210 months of imprisonment, appeals from an order of the United States District Court for the Northern District of New York, Thomas J. McAvoy, Judge, denying his 2009 motion pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence on the ground that his attorney provided ineffective assistance in connection with both the plea of guilty and sentencing. The district court denied the motion, ruling that Gonzalez failed to show that his attorney's deficient performance caused him prejudice. On appeal, Gonzalez contends that the district court erred in its no-prejudice ruling and abused its discretion in determining the issues without ordering discovery or conducting an evidentiary hearing. For the reasons that follow, we vacate the order denying the § 2255 motion; we remand for the district court to vacate the sentence and to resentence Gonzalez, with Gonzalez represented by competent counsel.
This appeal comes to us after a tortuous path encompassing Gonzalez's indictment in 2000; his plea of guilty and attempts to withdraw that plea in 2001; the ensuing 2001 judgment of conviction which--following a first § 2255 motion that was ultimately successful after Gonzalez's trial-level attorney had been disbarred--was vacated and reentered in 2007; this Court's 2008 affirmance of the conviction and the reimposed sentence, accompanied by our grant of permission to file a second--the present--§ 2255 motion asserting ineffective assistance of counsel in connection with the plea of guilty and sentencing; the filing of the present § 2255 motion in 2009; the district court's denial of that motion in 2010; and this Court's grant in 2011 of a certificate of appealability permitting Gonzalez to appeal that denial. The record shows the following.
A. The Proceedings in 2000-2008
Following an undercover operation in 1999-2000, conducted jointly by federal and New York State law enforcement agencies concerned with narcotics trafficking and immigration matters, Gonzalez was one of some three dozen individuals indicted in 2000. He was named in 32 counts charging him with, inter alia, distributing and possessing with intent to distribute various quantities of cocaine and heroin, conspiring to traffic in more than one kilogram of heroin and more than five kilograms of cocaine, and conspiring to use drugs and cash to bribe a supposedly corrupt Immigration and Naturalization Service ("INS") official to provide certain aliens with documents evidencing Permanent Resident Alien status (also known as "green cards"). Gonzalez was arraigned in July 2000 and pleaded not guilty. His retained attorney was Carlos Perez Olivo ("Perez-Olivo").
Following his arraignment, Gonzalez attended proffer sessions with government prosecutors and law enforcement agents. The prosecutors sought information about the involvement of codefendant Gabriel Ceballos, who was accused of being one of Gonzalez's drug suppliers, see generally United States v. Ceballos, 340 F.3d 115, 118-22 (2d Cir. 2003); see id. at 130, 123 (reversing Ceballos's bribery conspiracy conviction and noting that Ceballos had not challenged his narcotics conspiracy conviction). Gonzalez hoped to reach a plea agreement to limit his offenses of conviction and to have the government move pursuant to § 5K1.1 of the Sentencing Guidelines (or "Guidelines"), which were then considered mandatory, for a reduced sentence for his offenses.
Both sides' aspirations were largely unfulfilled. The government found Gonzalez's statements in the proffer sessions to be unhelpful, and it ultimately did not agree to make a § 5K1.1 motion. The parties entered into a plea agreement dated January 10, 2001 ("Plea Agreement" or "Agreement"), in which Gonzalez agreed to plead guilty to eight counts of the indictment--Counts I through VIII--to wit, both of the above conspiracy counts, one count of cocaine distribution, and five counts of heroin distribution. (See Plea Agreement at 1-2.) The Agreement provided that the government would dismiss the other 24 counts against Gonzalez (see id. at 9-10), but that if his plea were withdrawn, the government could reinstate and pursue any of those 24 counts as to which the statute of limitations had not run as of the date of the Agreement (see id. at 10).
In the Agreement, Gonzalez admitted, inter alia, that he had knowingly and intentionally possessed with intent to distribute approximately 4, 125 grams of cocaine and approximately 2, 239 grams of heroin. (See id. at 7.) The Agreement stated that his plea of guilty would expose him to various penalties, including a maximum of life imprisonment for the narcotics conspiracy and a maximum of 40 years' imprisonment for four of the substantive narcotics offenses. (See id. at 2-5.) Gonzalez agreed, inter alia, not to appeal a sentence of imprisonment of 235 months or less. (See id. at 14.)
On January 10, 2001, the day the Plea Agreement was signed, Gonzalez changed his plea on Counts I through VIII of the indictment from not guilty to guilty (see Plea Hearing Transcript, January 10, 2001 ("Plea Tr."), 10-13, 25). In response to questioning by the district court, Gonzalez stated under oath that he was pleading guilty voluntarily, that no one had made any promises to him as to lenient treatment other than as indicated in the Plea Agreement, and that he had received no threats of "a use of force to induce [him] to plead guilty." (Id. at 16.) He also stated that he had spoken with Perez-Olivo "about [his] chances of winning or losing if [he] went to trial, trial strategy and defenses" (id. at 8-9), and that he was satisfied with what Perez-Olivo "ha[d] done for [him] so far" (id. at 16). Gonzalez asked whether he could address the court to "explain [his] situation"; Perez-Olivo said he had advised Gonzalez that Gonzalez could instead speak at sentencing; the court endorsed that and stated that it would be happy at the plea hearing to answer any of Gonzalez's questions. (See id. at 15-16.)
The Assistant United States Attorney ("AUSA") then recounted at length (see id. at 17-21) the government's evidence that Gonzalez had, inter alia, made deliveries of cocaine or heroin on specific dates, and that Gonzalez "trafficked in over four kilograms of cocaine[, ] . . . negotiated to produce over ten kilograms of cocaine, and . . . produced over two kilograms of heroin throughout the course of this conspiracy, which lasted from approximately June of 1999 to June of 2000" (id. at 18-19). When the court asked Gonzalez, "Is that what you, in fact, did?" Gonzalez answered, "Yes, your Honor." (Id. at 21.)
Although the Plea Agreement had not included an estimate of the Guidelines-recommended range of imprisonment for the offenses to which Gonzalez was pleading guilty, the AUSA estimated at the plea hearing that if there were no applicable adjustments, such as for acceptance of responsibility, the prescribed range of imprisonment would be 262 to 327 months (see id. at 23).
1. Gonzalez's Attempt To Withdraw His Plea of Guilty
In May 2001, the Probation Department sent its proposed presentence report ("PSR") to the government and Perez-Olivo. Sometime thereafter, but before the then-scheduled October 2001 sentencing date, Gonzalez wrote to the probation officer to request a copy of the PSR, stating that neither he nor his wife had been able to reach Perez-Olivo since January; Gonzalez stated that Perez-Olivo was never at his office when Gonzalez's wife attempted to see him and that Perez-Olivo never returned her telephone calls. Gonzalez also asked the probation officer to forward to the court an enclosed letter.
Gonzalez's letter to the court stated that although Gonzalez bore some responsibility for his actions, he had been drawn into the immigration scheme believing it was lawful and that after he had begun participating he was blackmailed and coerced to continue. (See undated Letter from Pedro Gonzalez to "Your Honor" ("Gonzalez 2001 Letter to the Court") at 1.) The letter stated in part as follows:
I am not saying that I'm not guilty, I do have my responsibility in this case. Everything started when one of my workers brought a friend to the construction site. I am a general contractor, I have my own crew of employees. A man by the name of Jose Manuel called my house a few weeks later and told me that he had something that can help my workers. Upon meeting with him he told me he had an imigration [sic] lawyer that can provide permanent resident status in the U.S. Mr. Manuel assured me that everything was legal and the fee that would be charged was for his honorariums and the speedy process of the paperwork. Since some of my workers need the green cards to be legal residents in this country, I agreed to help them. If I thought anything was illegal or would jeopardize anyone I would never had [sic] agreed to any of it. After a few people, including my brother-in-law, supplied their passports and paid two thirds of the fee, Mr. Manuel brought us to a restaraunt [sic] in Albany. We were introduced to three people that he claimed worked for the imigration [sic] lawyer. From that moment on I was pushed around, set up, blackmailed, extorted, threatened and used. In all reality, they forced me to do what they wanted me to do. I was afraid for the lives of my children, my wife and all the people applying for the green cards some of who [sic] were also threatened.
At Gonzalez's sentencing hearing, Perez-Olivo told the court that, some days earlier, Gonzalez had informed him that Gonzalez "wishe[d] to withdraw his plea of guilty because it was not voluntary in the sense that . . . he was threatened by the agents." (Sentencing Transcript, November 13, 2001 ("S.Tr."), 3.)
Perez-Olivo stated that Gonzalez said "that, yes, he committed certain acts, but it was under duress" (id. at 4); "that he doesn't feel that he's guilty, that he feels that he was coerced and threatened" (id. at 5); "[a]nd that the only reason he waited until now to inform me or anybody else is because he was concerned for himself and his family. He has discussed it with his family after the presentence report came back with the recommendations and the fact that there would be no 5K1 letter forthcoming" (id.). Gonzalez clarified that he was asserting that during the events leading to his arrest he had been coerced by someone--who he said turned out to be a government informant--to make payments to men he later learned were undercover law enforcement agents:
THE DEFENDANT: . . . [The informant] called me and told me if I did not get the drugs for him, they were going to kill me, and he spoke about the . . . the ones who were in charge of collecting money, of the company. After that, I realize, when they brought me to court, that these gentlemen are agents, because I saw them here.
(Id. at 10; see also id. at 15-16 ("the threats that they have for my life were before I was arrested").)
Gonzalez stated that after he was arrested but "before [he] pled guilty" (S.Tr. 15), one of the undercover agents, called "Danilo, " told him at an interview session--when Perez-Olivo was not present--that if Gonzalez "did not cooperate properly, they were going to condemn [Gonzalez] to 30 years" (id. at 14). The AUSA informed the court that Gonzalez had been debriefed by the government both prior to and after his plea of guilty (see id. at 16-17) but that the AUSA was not aware of any threats at those sessions (see id. at 11). The court quizzed Gonzalez as to the threat he alleged was made by the agent:
THE COURT: . . . . So, you say Danilo told you if you didn't plead guilty, you were gonna get a higher sentence?
THE DEFENDANT: Yes.
THE COURT: And that's the threat that you're basing your motion on?
THE DEFENDANT: That was the threat that he gave to me when I was arrested already, yes. So, I should plead guilty and I should not go to trial because they were going to hang me. And the threats that they have for my life were before I was arrested. . . .
THE COURT: And when you appeared before me, I asked ya if anybody had made any threats or promises, and you told me no. Were you lying to me then?
THE DEFENDANT: Supposedly [sic]. I have never been in situation like this and this is something that put me completely nervous, and I always was under the threat of those ...