Cody v. United States

United States Court of Appeals
For the First Circuit

No. 00-1604

MICHAEL CODY,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Lynch, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lipez, Circuit Judge.

Cheryl J. Sturm on brief for appellant.
William F. Sinnott, Assistant United States Attorney, and Donald
K. Stern, United States Attorney, on brief for appellee.

May 11, 2001
 LYNCH, Circuit Judge. Michael Cody pled guilty in 1992 to

conspiring to import and distribute over 1000 pounds of marijuana and

to being a felon in possession of a firearm. At his plea hearing, Cody

told the court that he was on the drug lithium; the court inquired

whether the drug affected his ability to think normally, and Cody twice

answered that it did not. After the plea hearing, Cody wrote the court

several letters asking to withdraw his plea on the ground that lithium

did in fact so influence his judgment at the time of his plea as to

render the plea involuntary. The letters also suggested, as a

secondary matter, that his attorney had pressured him to plead guilty.

The court ordered the case to conference to address the issues raised

in the letters. At the hearing, while Cody continued to be represented

by the same lawyer, his attempt to withdraw his plea was heard and

rejected, and the court proceeded to sentence him to 14 years in

prison. No appeal was taken.

As a result of his plea bargain Cody received the benefit of

a sentence of about half the guideline range for his crimes. Not

content, in 1995 he persisted in trying to vacate the plea after

sentencing by filing a petition under 28 U.S.C. § 2255. After some

procedural delays and mishaps not pertinent here, his petition was

denied in February 2000. Accompanying the denial was a certificate of

-2-
appealability, which we construe as raising two issues: first, whether

Cody's plea was voluntary; second, whether his counsel was ineffective

either in permitting the plea to go forward or in representing Cody in

his attempt to have the plea withdrawn. We affirm the district court's

denial of the § 2255 petition as to both issues.1

I.

Cody was indicted in October 1990. The criminal conduct to

which he eventually pled guilty involved a scheme by Cody and several

codefendants to import and distribute approximately 20,000 pounds of

marijuana from Colombia. The government had strong evidence that Cody

was the organizing force behind the scheme: he supplied over $65,000 to

purchase the ship to be used in importing the drugs and hired its crew

members. Further, there was evidence that Cody gave one of the crew

members (who, as it happened, was a cooperating witness) a

semiautomatic handgun, instructing him in a taped conversation that if

certain persons attempted to accompany the drugs on the return trip,

they were to be shot and their bodies dumped overboard.

1 Cody has also briefed the issue of whether prejudicial
error occurred as a result of the trial court's failure to
apprise him of his right to appeal. We consider this issue
insofar as it relates to the voluntariness and ineffective
assistance claims, see infra n.3. But otherwise, as an
independent claim, it was not part of the certificate of
appealability and hence is not properly before us.

-3-
 On September 26, 1990, Cody was arrested. Given the quantity

of drugs and presence of guns involved in the crimes charged, Cody

faced a sentencing guidelines range of 295 to 353 months. Following a

period of negotiation, he entered into a written plea bargain with the

government. As part of the bargain, the government agreed to recommend

that the court depart downward and sentence Cody to only fourteen

years, based on the fact that Cody suffered from post-traumatic stress

disorder as a result of having served in Vietnam.

Cody pled guilty on January 31, 1992. At the plea hearing,

the court went through the usual Rule 11, Fed. R. Crim. P., litany and

Cody assured the court that his plea was free and voluntary. The court

subsequently asked Cody if he was taking any medications that would

affect his ability to think normally. Cody responded, "I'm given the

drug lithium, your Honor, but that doesn't affect my train of thought

or anything." The court followed up, asking Cody if he felt as though

he knew what he was doing at the hearing. Cody said that he did.

After the court concluded that it was satisfied as to the voluntariness

of Cody's plea, Cody's attorney approached the bench to point out that

the plea agreement contemplated a downward departure for diminished

capacity. Counsel stated that neither he nor Cody believed that this

condition interfered with Cody's ability to understand the hearing, but

he suggested that the court address the issue for the record. The

-4-
court then posed the question directly to Cody, who affirmed that the

condition did not impede his judgment in any way.

In the months between Cody's guilty plea and his sentencing,

Cody sent three letters to the trial court. In the first letter, he

stated in effect that he wished to withdraw his guilty plea on the

ground that at the time of his plea he was under the influence of

drugs. He further accused his attorney of having pressured him into

the plea and of ignoring his phone calls since the plea hearing.2 In

the next two letters, Cody made various complaints regarding his

medical condition, to the effect that the lithium medication for his

post-traumatic stress syndrome rendered him "incapable of functioning

normally."

In June 1992, the trial court held a disposition hearing in

which it first addressed the issues raised in Cody's letters. Cody's

attorney expressed uncertainty as to whether Cody wished him to

continue as his lawyer. The court asked Cody whether he wished to

continue with the same counsel, and Cody answered that he did, both

through counsel and directly to the court. Cody's attorney noted at

2 Specifically, the letter stated: "The day I pleaded I
told Your Honor I was under the influence of drugs. The only
reason I said I understand [was] because I was told to by my
attorney. Under all these conditions, I would like the plea I
agreed to nullified, as I was not in condition to even
understand it, and have asked my attorney to put a motion in
numerous times to have the plea dropped, which he has not done.
I want to go to trial to prove my innocence."

-5-
several points that he found himself in a difficult position, in two

respects. First, he found it difficult to advocate in favor of

withdrawing Cody's guilty plea given his belief that the plea agreement

he had negotiated with the government had been hard-won and was in

Cody's best interest. Second, Cody's counsel raised concerns about the

ethical dilemma in which he found himself, in that he was hesitant to

take a position that might be considered at odds with his prior

representations to the court that Cody was competent to plead.

Nonetheless, given that he was to continue as Cody's counsel, he

presented (without endorsing) Cody's argument that the plea should be

vacated pursuant to a court investigation on the effects of his lithium

medication on his competence to plead. Later in the proceeding, Cody

reaffirmed that he had "perfect faith" in his attorney and wished to

continue as his client. Cody has never alleged that he was incompetent

to make rational decisions during this second hearing.

The court denied Cody's motion to withdraw his plea, finding

the grounds for the motion implausible in light of the court's long

experience dealing with Cody and its specific recollection of the plea

hearing. The court proceeded to sentence Cody to fourteen years'

imprisonment, per the government's recommendation under the plea

agreement.

Cody did not appeal. He returned to the courts three years

later to file the § 2255 petition at issue here, this time represented

-6-
by new counsel. The petition alleged, inter alia, that (1) Cody's

guilty plea was entered involuntarily and in violation of this court's

Rule 11 jurisprudence requiring an inquiry as to the effects of a

defendant's medication on his capacity to plead; and (2) Cody's counsel

had provided ineffective assistance by failing to stop or correct the

Rule 11 hearing and by continuing to represent him during the plea

withdrawal hearing despite an actual conflict of interest.

The petition was initially heard by a magistrate judge who

recommended its denial. The district court judge (a different judge

from the trial court judge) adopted the recommended decision. Cody now

appeals.

II.

We begin by fixing the scope of our review. Although the

issue has not been addressed by the parties, Cody is procedurally

barred from raising his claim that his plea was involuntary. Cody

never directly appealed the trial court's denial of his motion to

withdraw his guilty plea, and he has failed to show cause for this

default. Without a showing of cause (and prejudice), "the

voluntariness and intelligence of a guilty plea can be attacked on

collateral review only if first challenged on direct review." Bousley

v. United States, 523 U.S. 614, 621 (1998).3

3 Cody independently raises in his brief the issue of the
trial court's failure to apprise him of the right to appeal his

-7-
 Nonetheless, although the cause and prejudice standard

precludes Cody's involuntary plea claim, it does not preclude his

ineffective assistance claim. See Knight v. United States, 37 F.3d

769, 774 (1st Cir. 1994) ("[T]he failure to bring a claim of

ineffective assistance of counsel on direct appeal is not subject to

the cause and prejudice standard."). Indeed, ordinarily a collateral

proceeding is the preferable vehicle for an ineffective assistance

claim. United States v. Ademaj, 170 F.3d 58, 64 (1st Cir. 1999).

Thus, we entertain Cody's petition to the extent that it challenges his

guilty plea on the ground that it resulted from ineffective assistance

of counsel. On this issue, we review the trial court's legal

conclusions de novo, while reviewing its findings of fact for clear

error. See Familia-Consoro v. United States, 160 F.3d 761, 764-65 (1st

Cir. 1998).

sentence. See Fed. R. Crim. P. 32(c)(5). Even were we to
interpret this claim as an attempt to show cause for not
appealing the denial of his motion to withdraw his guilty plea,
the claim would fail. Rule 32(c)(5) violations are considered
harmless unless the defendant actually lacked independent
knowledge of his right to appeal. See United States v.
Torres-Otero, 192 F.3d 12 (1st Cir. 1999). Cody has not made
any affirmative claim that he lacked such knowledge, but instead
claims only that "there is no evidence" he had such knowledge.
Without an affirmative denial that he knew of his right to
appeal, there is no basis to find prejudice as a result of the
trial court's Rule 32(c) violation.

-8-
 Cody's ineffective assistance claim has two prongs. He

claims, first, that his counsel should not have permitted him to plead

guilty, and second, that having done so his counsel labored under an

actual conflict of interest in attempting to argue for a withdrawal of

Cody's plea at the plea withdrawal hearing.

As to the first prong, in order to succeed, Cody must prove

by a preponderance of the evidence that his counsel unreasonably erred

in permitting him to plead guilty, and that prejudice resulted. See

Strickland v. Washington, 466 U.S. 668, 687 (1984). Cody has not met

this burden. The essence of his argument is that the trial court's

Rule 11 inquiry was insufficient with respect to the effects of his

medication on his competence to plead, and that his counsel erred by

not stopping or correcting the proceeding accordingly.4 But there was

no error in the court's inquiry, and so no error by counsel in not

objecting to the proceedings.

When a defendant in a Rule 11 hearing confirms that he is on

medication, the district court has a duty to inquire into the

defendant's capacity to enter a plea. Miranda-Gonzalez v. United

States, 181 F.3d 164, 166 (1st Cir. 1999); United States v. Parra-

Ibanez, 936 F.2d 588, 594 (1st Cir. 1991). The "better practice" is to

4 Cody has never alleged that at the time of his plea
hearing, his counsel independently had reason to know that his
medication rendered him incompetent to plead.

-9-
identify the drug in question, how recently it has been taken and in

what quantity, and the drug's purpose and effects. United States v.

Savinon-Acosta, 232 F.3d 265, 268 (1st Cir. 2000).

Here, the trial court learned that the defendant was taking

lithium as a medication and that he was on lithium that day (presumably

in the prescribed dose); further, from counsel's reminder that Cody

suffered from post-traumatic stress syndrome, the court could infer

that the lithium was prescribed for that condition. Most importantly,

the court specifically inquired whether Cody's medication affected his

ability to make reasoned decisions; Cody unequivocally answered that

lithium "doesn't affect my train of thought or anything."5

Thus, this case is not controlled by the case relied upon by

Cody, Parra-Ibanez, supra, where, after learning that the defendant was

on tranquilizers, the court failed to follow up with any question

whatsoever about whether the defendant's medication affected his

competence to plead. By contrast, here the court asked that question

directly, twice, and twice received an affirmative response. While the

court might have probed further into the purpose and effects of

5 The court also was able to observe Cody's appearance
and demeanor as he answered questions throughout the colloquy,
and it saw nothing to undermine Cody's assurances. See Savinon-
Acosta, 232 F.3d at 269 ("Courts have commonly relied on the
defendant's own assurance . . . that the defendant's mind is
clear. Further, the defendant's own performance in the course
of a colloquy may confirm . . . his assurances." (citations
omitted)).

-10-
lithium, it at least conducted the minimum inquiry required, and thus

Cody's counsel did not unreasonably err by not choosing to halt the

proceedings or to advise the court to pursue further inquiry.

We turn, then, to Cody's next claim -- namely, that he never

had a fair chance to argue for a withdrawal of his plea because his

attorney labored under an actual conflict of interest at the hearing

where the issue was heard. See Cuyler v. Sullivan, 446 U.S. 335, 348

(1980); see also United States v. Sanchez-Barreto, 93 F.3d 17, 20 (1st

Cir. 1996) (plea withdrawal hearing is critical stage of criminal

proceeding to which Sixth Amendment right to effective assistance of

counsel attaches). In order to succeed on an actual conflict of

interest theory, Cody must show that his counsel (1) could have pursued

some plausible line of argument at the plea withdrawal hearing but (2)

failed to do so due to a conflict with counsel's other interests or

loyalties. Bucuvalas v. United States, 98 F.3d 652, 656 (1st Cir.

1996). Cody claims that his counsel labored under an actual conflict

of interest at the plea withdrawal hearing in that he could not fully

bring himself to argue that Cody's lithium medication rendered him

incompetent to plead, for counsel did not wish to suggest that he had

previously been ineffective in permitting the plea to go forward.6

6 Besides claiming that his lithium medication rendered
him incompetent to plead, Cody also claimed in his letters and
at the plea withdrawal hearing that his counsel pressured him to
plead by threatening to withdraw if Cody insisted on going to

-11-
 Cody's conflict of interest claim fails because he has failed

to show the plausibility of his claim that his lithium medication

rendered him incompetent to plead; thus we need not even reach the

second prong of the Bucavalas test. Cf. Bucavalas, 98 F.3d at 656-57

(rejecting actual conflict claim on the ground that allowing defendant

to testify in his own defense would not have been a plausible

alternative defense strategy).7 Cody's counsel did, after all,

articulate Cody's argument that his plea be withdrawn subsequent to

clinical scrutiny of his allegations that lithium affected his

trial. In United States v. Sanchez-Barreto, supra, we
recognized an actual conflict of interest at a plea withdrawal
hearing where the defendant alleged that his attorney had
earlier pressured him to plead guilty in order to hide the
attorney's lack of trial preparation. However, in arguing this
appeal, Cody focuses on the lithium claim and makes only
desultory mention of his prior allegations of being pressured by
his attorney. He does not develop an argument that his attorney
was ineffective in pressuring Cody to plead. Further, Cody has
not requested an evidentiary hearing as to whether his attorney
pressured him to plead. Thus, without deciding whether an
attorney's threat to withdraw unless the defendant pleads guilty
constitutes an ethical violation or could otherwise give rise to
a conflict of interest as in Sanchez-Barreto, we consider Cody
to have waived any conflict of interest claim he might have
pursued on this basis. Cf. United States v. Rosario-Peralta,
199 F.3d 552, 563 n.4 (1st Cir. 1999) (issues raised in a
perfunctory manner on appeal deemed waived).
7 The first prong of the Bucavalas test acts as a check
on the possibility of a defendant twisting a mere conflict of
opinion as to what is in the client's best interests into a
"conflict of interest" between client and attorney.

-12-
competence to plead; the court rejected the argument. Cody suggests

that more competent counsel would have previously investigated those

allegations and forcefully presented them to the court. But he offers

no proof that such investigation would have yielded the fruit of a

plausible argument. Specifically, he offers neither proof that a

prescribed dose of lithium has the potential to render one incompetent

to plead nor proof that he was suffering such effect at the time of his

plea hearing.

Cody argues that he has not had adequate opportunity to

present such proof due to the district court's refusal to afford him an

evidentiary hearing. But "[w]hen a petition is brought under section

2255, the petitioner bears the burden of establishing the need for an

evidentiary hearing." United States v. McGill, 11 F.3d 223, 225 (1st

Cir. 1993). Cody had, by the time he filed his petition, ample

opportunity to collect evidence to establish such need: e.g.,

documentary evidence from medical reference books describing the

relevant effects of lithium, or an affidavit from his doctor or himself

discussing the history of his lithium treatment. Because he has

presented no such evidence along with his petition, he has no basis to

demand an evidentiary hearing and, likewise, no basis to establish the

plausibility of the argument he claims his counsel should have more

forcefully made.

-13-
 The judgment of the district court dismissing the § 2255

petition is affirmed.

-14-