United States Court of Appeals,
Fifth Circuit.
No. 96-10659.
UNITED STATES of America, Plaintiff-Appellee,
v.
Ludevina Ayala CERVANTES, Defendant-Appellant.
Jan. 27, 1998.
Appeal from the United States District Court for the Northern
District of Texas.
Before JOLLY, DAVIS and BARKSDALE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Ludevina Ayala Cervantes appeals the district court's denial
of her petition for habeas corpus under 28 U.S.C. § 2255.
Cervantes pled guilty to distribution of cocaine and entered into
a plea agreement. The agreement included a waiver of the right to
appeal her sentence. Despite the waiver, Cervantes attempted to
appeal her sentence on direct appeal, but we dismissed the appeal
based on the waiver. Cervantes then filed a petition for habeas
relief with the district court. She alleged that the judge had
incorrectly calculated her sentence. She further alleged that
defense counsel had rendered ineffective assistance by inducing her
to plead guilty based on misrepresentations as to what her sentence
would be. The district court denied habeas relief. It held that
sentencing issues are not cognizable under section 2255 and that
the record of the sentencing hearing conclusively refuted any claim
of inducement. On this appeal, Cervantes renews her claims of
ineffective assistance of counsel and further contends that her
1
waiver of the right to appeal her sentence was invalid. For the
reasons that follow, we affirm.
I
On October 6, 1992, Cervantes was indicted by a Grand Jury and
charged with conspiracy to distribute cocaine and two substantive
counts of distribution of cocaine. At rearraignment on September
7, 1993, Cervantes, represented by counsel, entered a guilty plea
to one count of distribution of cocaine under 21 U.S.C. § 841. The
plea agreement included a waiver of her right to appeal any
sentence ultimately imposed. At the sentencing hearing four months
later, Cervantes received a sentence of 97 months in prison, five
years of supervised release, and a fifty dollar special assessment.
Despite the appeal waiver provision in her plea agreement,
Cervantes filed a motion for leave to appeal IFP, which the
district court granted, appointing Cervantes's previous counsel to
represent her on appeal. On January 11, 1994, Cervantes filed a
notice of appeal to this court. In March, the government responded
with an unopposed motion to dismiss the appeal based on the appeal
waiver. We dismissed the appeal on April 1, 1994.
On May 23, 1995, Cervantes filed a section 2255 petition for
habeas relief. She contended that the court incorrectly calculated
her sentence and that her counsel had rendered constitutionally
ineffective assistance. Specifically, Cervantes alleged that the
court erred by basing its sentence on the total amount of cocaine
involved in the alleged conspiracy rather than the smaller amount
she sold to an undercover agent. She further alleged that defense
2
counsel was ineffective because he induced her to plead guilty with
misrepresentations as to the sentence she would receive, he failed
to challenge the amount of cocaine used to calculate her sentence,
and he failed to prosecute the appeal of her sentence. The
government filed an answer, asserting that Cervantes's challenge of
her sentence was not cognizable under section 2255 and, in any
event, the appeal had been waived in the plea agreement. The
government also responded that Cervantes's inducement claim was
refuted by her sworn testimony at the plea hearing.
Cervantes then filed an "amendment to section 2255 motion," in
which she requested that the district court accept two affidavits
in support of her ineffective assistance of counsel claim. One
affidavit, given by her sister Becky Ayala, stated that when she
was at Cervantes's counsel's office, she heard him tell Cervantes
that if she pleaded guilty and signed the plea agreement, Cervantes
would receive only three to five years in prison based on an
agreement with the government. The affidavit also asserted that on
the day Cervantes was sentenced, her counsel told Cervantes he
would file an appeal, but that later, he told her not to call him
again. The other affidavit, given by Cervantes's other sister,
Delphie Whiteman, and her husband, stated that Cervantes's counsel
had assured them Cervantes would receive no more than five years in
prison based on an agreement with the government.
On May 17, 1996, the district court denied Cervantes's section
2255 motion without an evidentiary hearing "for the reasons stated
in the Government's answer." The court held that Cervantes's
3
"amendment" to the motion would not be considered because it was
received after the government's answer was filed, and Cervantes had
not sought leave of court to file it. The court further concluded
that, even if the affidavits were properly admitted, the facts
asserted therein were effectively refuted by the terms of the plea
agreement and by Cervantes's own statements under oath at the
sentencing hearing.
Cervantes filed the present appeal. Although she had not
requested a certificate of appealability ("COA") from the district
court, we treated her notice of appeal as an application for such
and granted Cervantes a COA on whether the appeal waiver provision
in her plea agreement was valid—which now appears to have been
raised for the first time in this appeal—and whether her guilty
plea was improperly induced.1 In addition to these issues,
Cervantes renews her claims that the district court erred in
calculating her sentence and that her counsel was ineffective for
not properly objecting to the amount of drugs used to calculate her
sentence. Also, for the first time on appeal, Cervantes contends
(1) that counsel was ineffective for not having requested a
downward departure under the Sentencing Guidelines based on her
family circumstances; (2) that the district court failed to comply
with Rule 11; and (3) that the government breached the plea
agreement by failing to make a specific sentencing recommendation.
1
We have recently held that a COA is unnecessary in section
2255 actions filed prior to the effective date of the AEDPA, April
24, 1996. See Carter v. Johnson, No. 96-20334, 1997 WL 768622, at
*3, --- F.3d ----, ---- (5th Cir. Dec. 12, 1997). Thus, Cervantes
was not required to obtain a COA.
4
II
As a threshold matter, we consider our standard of review and
the extent to which Cervantes's claims are cognizable under section
2255. Following a conviction and exhaustion or waiver of the right
to direct appeal, we presume a defendant stands fairly and finally
convicted. United States v. Shaid, 937 F.2d 228, 231-32 (5th
Cir.1991) (en banc), cert. denied, 502 U.S. 1076, 112 S.Ct. 978,
117 L.Ed.2d 141 (1992). As a result, review of convictions under
section 2255 ordinarily is limited to questions of constitutional
or jurisdictional magnitude, which may not be raised for the first
time on collateral review without a showing of cause and prejudice.
Id. Other types of error may not be raised under section 2255
unless the defendant demonstrates that the error could not have
been raised on direct appeal and, if condoned, would result in a
complete miscarriage of justice. United States v. Pierce, 959 F.2d
1297, 1301 (5th Cir.), cert. denied, 506 U.S. 1007, 113 S.Ct. 621,
121 L.Ed.2d 554 (1992).
As the district court properly concluded, Cervantes's claim
that the trial judge erred in calculating her sentence is not
grounds for section 2255 relief. Technical application of the
Sentencing Guidelines does not give rise to constitutional issues.
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.1992). And
although the appeal waiver prevented Cervantes from raising this
issue on direct appeal, the assigned error does not result in a
fundamental defect inherently resulting in a complete miscarriage
of justice. See United States v. Smith, 844 F.2d 203, 206 (5th
5
Cir.1988) (citations omitted). Thus, we do not consider its
merits.
Similarly, we need not address the merits of Cervantes's
claims regarding the validity of her appeal waiver, the district
court's compliance with Rule 11, the government's alleged breach of
the plea agreement, or ineffective assistance of counsel concerning
failure to request a downward departure under the Guidelines. We
do not consider issues raised for the first time on the appeal of
a section 2255 motion. See, e.g., United States v. Madkins, 14
F.3d 277, 279 (5th Cir.1994) (citing cases); United States v.
Cates, 952 F.2d 149, 152 (5th Cir.), cert. denied, 504 U.S. 962,
112 S.Ct. 2319, 119 L.Ed.2d 238 (1992). Because Cervantes failed
to raise these claims before the district court in the habeas
proceedings below, we shall not consider them in this appeal. See
United States v. Smith, 915 F.2d 959, 964 (5th Cir.1990) (per
curiam).2
Cervantes's remaining claim—the only constitutional claim she
properly raises—is that defense counsel rendered ineffective
assistance by wrongfully inducing her to plead guilty.3 As the
case is presented to us today, however, the question is not the
2
In view of the fact that Cervantes has not properly raised
the validity of the appeal waiver provision of the plea agreement,
it is assumed valid. See Shaid, 937 F.2d at 231-32 (following
conviction and waiver of direct appeal, we presume the defendant
stands fairly and finally convicted). Thus, there is no basis for
Cervantes's claim that defense counsel rendered ineffective
assistance by failing to appeal her sentence.
3
Cervantes's claim that counsel was ineffective because he
failed to renew overruled objections to the amount of cocaine used
to calculate her sentence has no merit.
6
ultimate merits of this claim; instead, the precise question is
whether the district court erred in denying the claim without
granting an evidentiary hearing. We review the district court's
decision only for an abuse of discretion. See United States v.
Bartholomew, 974 F.2d 39, 41 (5th Cir.1992) (per curiam).
III
A
Cervantes argues that her trial counsel rendered ineffective
assistance by inducing her to plead guilty with misrepresentations
regarding the sentence she would receive. Specifically, Cervantes
contends that her counsel stated that she would receive a sentence
of no more than 37 months in prison. She further alleges that
counsel advised her that the plea hearing would be confusing, that
she should agree to everything the judge said, and that he would
handle the situation. The government responds that the statements
made by Cervantes at the guilty plea and sentencing hearings, while
under oath, refute her allegations. While Cervantes concedes her
statements at these hearings, she argues that the record is bare
with respect to the conversations she had with her attorney and,
therefore, that the district court should have held an evidentiary
hearing to resolve the issue. We, therefore, address whether the
record before us requires a hearing on her claim of ineffective
counsel.
B
(1)
To be constitutionally valid, a guilty plea must be knowing
7
and voluntary. Harmason v. Smith, 888 F.2d 1527, 1529 (5th
Cir.1989). Thus, a guilty plea may be invalid if induced by
defense counsel's unkept promises. See id. On the other hand, a
defendant ordinarily will not be heard to refute her testimony
given at a plea hearing while under oath. United States v. Fuller,
769 F.2d 1095, 1099 (5th Cir.1985). "Solemn declarations in open
court carry a strong presumption of verity," forming a "formidable
barrier in any subsequent collateral proceedings." Blackledge v.
Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1628-29, 52 L.Ed.2d 136
(1977).
Nevertheless, a defendant may seek habeas relief on the basis
of alleged promises, though inconsistent with representations she
made in open court when entering her guilty plea, by proving (1)
the exact terms of the alleged promise, (2) exactly when, where,
and by whom the promise was made, and (3) the precise identity of
an eyewitness to the promise. See Harmason, 888 F.2d at 1529
(citations omitted). If the defendant produces independent indicia
of the likely merit of her allegations, typically in the form of
one or more affidavits from reliable third parties, she is entitled
to an evidentiary hearing on the issue. See id. If, however, the
defendant's showing is inconsistent with the bulk of her conduct or
otherwise fails to meet her burden of proof in the light of other
evidence in the record, an evidentiary hearing is unnecessary. See
United States v. Smith, 844 F.2d 203, 208 (5th Cir.1988) (per
curiam); United States v. Raetzsch, 781 F.2d 1149, 1152 (5th
Cir.1986).
8
(2)
Cervantes submitted affidavits from her sisters regarding the
alleged promises of her trial counsel, of which at least one
satisfied the requirement of specificity necessary to warrant an
evidentiary hearing.4 Becky Ayala's affidavit adequately described
counsel's alleged promises, who was present, as well as when and
where the alleged promises were made. Cervantes, however, did not
file the affidavits with her section 2255 motion, but instead, as
an "Amendment to Section 2255 Motion." The government had already
filed a responsive pleading asserting that an evidentiary hearing
would be unnecessary because Cervantes's claims of inducement were
refuted by her testimony at the plea hearing. The district court,
citing our decisions in United States v. Armstrong, 951 F.2d 626
(5th Cir.1992), and Barksdale v. King, 699 F.2d 744 (5th Cir.1983),
refused to consider the affidavits because the government had
already filed a responsive pleading, and Cervantes had not sought
leave of court prior to seeking amendment, as specifically required
by Rule 15 of the Federal Rules of Civil Procedure.
Rule 15(a) permits parties to amend their pleadings after a
responsive pleading has been served "only by leave of court or by
written consent of the adverse party." In Barksdale, we held that
because the defendant's motion to dismiss was not a responsive
pleading under Rule 15(a), the pro se plaintiff could amend his
complaint once as a matter of course before the defendant filed a
4
We shall assume the affidavits of Cervantes's sisters qualify
as affidavits of "reliable" third parties.
9
responsive pleading. See 699 F.2d at 746-47. In Armstrong, the
habeas petitioner, proceeding pro se, attempted to raise new issues
before the district court after the government had filed its
response to the petitioner's section 2255 motion. We refused to
consider the issues because the petitioner "had no right to amend
his pleadings without leave of court, which he did not seek," and,
therefore, the issues were not properly before the court. 951 F.2d
at 630. Under Armstrong and Barksdale, we cannot say that the
district court abused its discretion in refusing to consider the
affidavits of Cervantes's sisters.
(3)
Cervantes is entitled to an evidentiary hearing only if the
existing record proves the likely merit of her specific allegations
of a promise. See Davis v. Butler, 825 F.2d 892, 893-95 (5th
Cir.1987). The written plea agreement, signed by Cervantes and her
attorney, was three pages long. It states several times, once in
bold letters, that no agreements, promises, or representations
existed as to what sentence Cervantes would receive. It further
explains that her sentence would be determined solely by the
district court judge, who could depart from the applicable
guideline range. The plea agreement also contains stipulated facts
describing her involvement in the distribution of cocaine.
At rearraignment, the district court judge reiterated much of
what was set forth in the plea agreement as well as the rights
Cervantes would forfeit by pleading guilty, assuring Cervantes
understood each of these matters. He specifically admonished
10
Cervantes that she could not rely on anyone, even if connected to
law enforcement or the government, for promises as to what her
sentence would be. Cervantes represented to the court that she
read and understood the entire plea agreement, agreed with its
provisions, had consulted with her attorney, and had not been
induced to sign the agreement by any promises, representations, or
coercion. Finally, before confirming her guilty plea, Cervantes
affirmed her understanding that she would not be permitted to
withdraw the guilty plea even though the sentence she received
might be harsher than she expected.
This testimony and the plain terms of the plea agreement
clearly refute Cervantes's allegations that her attorney had
promised her a lower sentence based on an agreement with the
government. The plea agreement is short, clear, and unambiguous.
Cervantes's colloquy with the court expressly contradicts the
existence of any promises or agreements not contained in the plea
agreement. Thus, the district court did not err in dismissing
Cervantes' habeas claim without conducting an evidentiary hearing
on the issue of ineffective counsel. See Smith, 844 F.2d at 208;
see also United States v. Brewer, 60 F.3d 1142, 1145 (5th Cir.1995)
(addressing availability of evidentiary hearing on direct appeal).
IV
For the foregoing reasons, the district court's denial of
habeas relief is
AFFIRMED.
11
12
United States v. Cervantes
Combined Opinion