Jose A. Ortiz-casanova, Plaintiff, Appellant, v. United States of America, Defendant, Appellee, 54 F.3d 764 (1st Cir. 1995)

Appellant Jose A. Ortiz Casanova, acting pro se, moved to vacate, modify or correct his sentence pursuant to 28 U.S.C. § 2255. Ortiz maintains that the district court erred in dismissing all his claims without conducting an evidentiary hearing concerning whether (1) the sentence imposed failed to take into account the Sentencing Reform Act of 1984, (2) the assessment of a $50,000 fine violated due process and equal protection of the law, (3) the plea-taking procedure was constitutionally defective, (4) his counsel was constitutionally inadequate, and (5) the government breached the plea agreement at sentencing. Assuming, without deciding, that these challenges are all cognizable in a Sec. 2255 proceeding, see Knight v. United States, 37 F.3d 769, 772-74 (1st Cir. 1994), we find no error and affirm.

BACKGROUND

On October 1, 1987, Ortiz and a co-defendant, the sole occupants of a boat found to contain 195 kilos of cocaine, were arrested. Subsequently, both were indicted on two counts of cocaine importation and distribution charges. See United States v. Palmer-Contreras, 835 F.2d 15, 16 (1st Cir. 1987) (setting out background and affirming denial of pretrial bail). Ortiz petitioned to enter a plea of guilty to one count and executed a written plea agreement with the government. A change-of-plea hearing was held on January 26, 1988. The plea was accepted, and Ortiz was convicted of aiding and abetting the possession with intent to distribute cocaine under 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2, in violation of Sec. 1002 of the Anti-Drug Abuse Act of 1986 ("ADAA"), Pub. L. No. 99-570 (Oct. 26, 1986).¹  On April 6, 1988, Ortiz was sentenced to twenty-five years imprisonment, five years of supervised release, a $50,000 stand-committed fine, and a $50 special assessment. After various motions by Ortiz for correction of sentence, the district court, on January 25, 1990, reduced his term of imprisonment to 18 years. Further motions to modify the sentence and fine were unsuccessful. Ortiz' direct appeal from conviction and sentence was ultimately dismissed by this court for lack of prosecution.

(1) The Sentence.

Ortiz contends that he should have been sentenced according to the guidelines promulgated under the Sentencing Reform Act of 1984. The guidelines became operative on November 1, 1987 and, it is manifestly clear, apply only to offenses committed on or after that date regardless of the date of conviction or sentencing. Sentencing Act of 1987, Pub. L. No. 100-182 (Dec. 7, 1987); 18 U.S.C. § 3551 note; see United States v. Twomey, 845 F.2d 1132, 1135 (1st Cir. 1988); see also United States v. Metallo, 908 F.2d 795, 800 (11th Cir. 1990). Because Ortiz was convicted of conduct that occurred in October 1987, the sentencing guidelines do not apply, and he was properly sentenced under pre-guidelines law. United States v. Richard, 943 F.2d 115, 120 (1st Cir. 1991); United States v. Thomas, 895 F.2d 51, 58 (1st Cir. 1990). There is no constitutional right to benefit from sentencing guidelines that put into effect lesser punishment levels for a crime after the offense was committed. See United States v. Hayes, 929 F.2d 741, 742 (D.C. Cir. 1991). Ortiz' argument that it is inconsistent to fix different effective dates for penalty provisions of the ADDA and the Sentencing Reform Act of 1984 was expressly rejected by the Supreme Court in Gozlon-Peretz v. United States, 498 U.S. 395, 405-09 (1991). Otherwise, Ortiz does not argue that the sentence imposed was not within statutory limits or constituted cruel and unusual punishment. See Richard, 943 F.2d at 120. The sentencing guidelines were never applicable to Ortiz and he was properly sentenced under the ADAA.

(2) The Fine.

Ortiz argues that the imposition of a stand-committed fine of $50,000 is unjustified and exorbitant because he is indigent. This claim is premature. Ortiz must first pursue available administrative remedies designed to evaluate inability to pay a fine, 18 U.S.C. § 3569; Santiago v. United States, 889 F.2d 371, 372-73 (1st Cir. 1989), and he is without standing to contest his fine on indigency grounds until and unless the government seeks incarceration for nonpayment. See United States v. Levy, 897 F.2d 596, 598 (1st Cir. 1990). The mere existence of an outstanding penal liability does not violate an indigent prisoner's rights. United States v. Rivera-Velez, 839 F.2d 8 (1st Cir. 1988).

(3) The Plea.

Ortiz first maintains that the plea colloquy was defective because the court failed to determine that Ortiz, in entering the plea change, heavily relied on his attorney's representation that he would receive no more than a ten year sentence and would have to serve six years and eight months at most. However, the facts recited in Ortiz' Sec. 2255 memoranda, his attached affidavit, the plea petition, the parties plea agreement, and the declarations of Ortiz' attorney and his codefendant's attorney²  do not, overall, present enough evidence to overcome the presumed regularity of the plea proceeding. These record documents effectively contradict Ortiz' assertion that he was falsely assured by his attorney that a guilty plea would garner a lighter sentence.

Ortiz next complains that he relied upon his attorney's representation that he would be eligible for parole after serving one-third of his sentence and that the court failed to reveal to him that his offense was nonparolable. Ortiz relies on Durant v. United States, 410 F.2d 689, 693 (1st Cir. 1969), which held that a defendant must be informed of parole ineligibility. However, the 1974 Amendments to Fed. R. Cr. P. 11 make clear that, in accepting a plea of guilty, a court is not required to inform a defendant of the possible collateral consequences of a guilty plea such as statutory ineligibility for parole. Johnson v. United States, 650 F.2d 1, 4 (1st Cir. 1981); see Rule 11(c) (1) Notes of Advisory Committee on Rules; see also United States v. Fox, 941 F.2d 480, 486 (7th Cir. 1991); United States v. Sanclemente-Bejarano, 861 F.2d 206, 209 (9th Cir. 1988). Ortiz' assertion that no one mentioned parole ineligibility is patently inadequate to set aside his guilty plea on constitutional grounds. See United States v. Garcia, 698 F.2d 31, 33 (1st Cir. 1983) (due process not offended when parole eligibility advice omitted in plea-taking).

(4) Ineffective Assistance.

Ortiz charges that his attorney rendered ineffective assistance of counsel during the plea negotiation process by misrepresenting to him his eligibility for parole. Specifically, Ortiz alleges that his lawyer induced him to plead guilty by telling him that he would be eligible for parole after serving approximately one-third of his sentence and that the sentence imposed would not exceed ten years. But for those representations, Ortiz insists that he would not have pleaded guilty.

Challenges to guilty pleas based on allegations of ineffective assistance of counsel during the plea process are evaluated under the familiar two-pronged cause and prejudice test of Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Hill v. Lockhart, 474 U.S. 52, 58 (1985). The plea petition and plea agreement contradict Ortiz' belated assertions that he was assured a specific sentence, as do the attorneys' declarations that no promise, prediction or representation concerning parole eligibility or sentencing were made. Allegations based solely on counsel's inaccurate predictions about sentencing are insufficient to sustain an ineffective assistance claim. Knight v. United States, 37 F.3d at 775; Worthen v. Meachum, 842 F.2d 1179, 1184 (10th Cir. 1988) (attorney's "bad guess" regarding parole does not render plea involuntary). Ortiz' unadorned factual allegation that his attorney misled him as to parole is simply inadequate to warrant an evidentiary hearing. Hernandez-Hernandez v. United States, 904 F.2d 758, 762 (1st Cir. 1990) (to obtain hearing, highly specific allegations usually accompanied by independent corroboration are required).

Even if Ortiz could satisfy the cause prong of Strickland 's test, he has failed to sufficiently allege that he was prejudiced by the alleged error. Hill, 474 U.S. at 60. To establish prejudice, Ortiz must show a reasonable probability that, armed with correct information, the outcome would have been different. Strickland, 466 U.S. at 694. Ortiz' bare and conclusory statement that if he had known that his offense was nonparolable, he would not have pleaded guilty and would have gone to trial is insufficient to show prejudice. See Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994); Barker v. United States, 7 F.3d 629, 633 (7th Cir. 1993); United States v. Hanley, 906 F.2d 1116, 1121 (6th Cir. 1990). Ortiz does not maintain that he was told he would be eligible for parole only if he pleaded guilty, nor has he otherwise indicated any "special circumstances" that might support a reasonable inference that parole was particularly important. Hill, 474 U.S. at 60. As Ortiz acknowledges, his offense is nonparolable. Ortiz' misunderstanding as to parole eligibility appears equally applicable either to going to trial or pleading guilty. See Smith v. McCotter, 786 F.2d 697, 703 (5th Cir. 1986); see also Wellman v. Maine, 962 F.2d 70, 73 (1st Cir. 1992). Since parole was not in play in either eventuality, Ortiz "failed to allege the kind of prejudice from the allegedly incompetent advice of counsel that would have entitled him to a hearing." Hill, 474 U.S. at 53.

(5) Breach of Plea Agreement.

Ortiz' last foray-that the government breached the plea agreement-is frivolous. Ortiz maintains that the government violated the letter and the spirit of the plea agreement by appending to the presentence report a letter indicating that the estimated wholesale value of the cocaine seized was between 6 and 6.5 million dollars. The government had a duty to bring all relevant conduct information to the court's attention, and, in so doing, did not violate the plea agreement.

CONCLUSION

Where, as here, a Sec. 2255 petition is presented to the judge who presided over all the prior proceedings, the judge may take into account the knowledge gleaned during the previous proceedings without convening an additional hearing. United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). The district court properly rejected Ortiz' motion for Sec. 2255 relief based upon the papers of record and the court's familiarity with the case. Id. at 225-26; Rule 4(b), Rules Governing Sec. 2255 Proceedings.

The judgment of the district court is affirmed.