United States Court of Appeals,
Fifth Circuit.
No. 95-30869
Summary Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Gino A. SEVERIN, Defendant-Appellant.
March 27, 1996.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before WISDOM, DAVIS and STEWART, Circuit Judges.
PER CURIAM:
In 1993, Gino A. Severin, the defendant/appellant, pleaded
guilty to one count of possession with intent to distribute more
than one gram of cocaine in violation of 21 U.S.C. § 841(a)(1).
The district court then sentenced Severin to 60 months imprisonment
and 5 years supervised release. Severin did not directly appeal
his plea or his sentence.
The following year, Severin filed a 28 U.S.C. § 2255 motion
challenging his guilty plea.1 In this motion, Severin asserted
that his trial counsel, who was a federal public defender, was
ineffective because the attorney erroneously advised Severin that
the entrapment defense was no longer available against federal
charges. Additionally, Severin contended that the district judge
1
Severin actually raised his first § 2255 challenge in 1993,
which was denied and not appealed. The district court declined to
dismiss Severin's instant challenge for abuse of writ.
1
erred when he accepted Severin's guilty plea without stating the
factual basis for the plea, thereby violating Fed.R.Crim.P. 11(f).
The district court denied the motion. On appeal, another panel of
this Court agreed with the district court that Severin's Rule 11
claims were frivolous; however, the panel vacated and remanded the
case with respect to Severin's ineffective assistance claim because
Severin's uncontested allegations "were sufficient to trigger the
district court's obligation to develop the case further".2
On remand, Severin raised the same ineffective assistance
claim and renewed his Rule 11 challenge on a different basis, this
time arguing that he was not instructed of the "knowing"
requirement of the crime to which he pleaded guilty and that he was
not informed of his right to cross-examine witnesses. After first
obtaining an affidavit from Severin's trial counsel in which the
attorney attests that he and Severin fully discussed the
possibility of the entrapment defense but determined that such a
defense would be unsuccessful in his case because of his
predisposition as revealed in F.B.I. audio and video tapes of his
transactions with the government's witness, the district court
again denied Severin's motion. Severin now appeals the denial of
his motion.
To prevail on his ineffective assistance of counsel claim,
Severin must establish that the performance of his trial counsel
fell below an objective standard of reasonableness and that the
2
United States v. Severin, 53 F.3d 1282 No. 94-30590, at 7
(5th Cir. Apr. 28, 1995) (per curiam).
2
deficient performance prejudiced his defense.3 Because Severin
pleaded guilty, he can demonstrate prejudice only by proving that
but for his counsel's errors, there is a reasonable probability
that he would not have pleaded guilty.4
The district court's factual findings in a § 2255 proceeding
must be accepted unless clearly erroneous.5 In the instant case,
the district court reviewed the conflicting affidavits from
Severin's wife and trial attorney and the attested statements by
the defendant in the presentence investigation report and in his
various motions. Relying on this evidence, the district court
found that Severin's counsel had properly instructed Severin about
the availability of the entrapment defense. "A district court
conducting federal habeas review should not ordinarily attempt to
resolve contested issues of fact based on affidavits alone unless
there is other evidence in the record dispositive of the issue or
unless the state court has made the relevant factual findings."6
The contested issue in this case is whether Severin's trial counsel
told him that the entrapment defense could not be raised against
federal charges. The affidavit of Severin's trial counsel states
3
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
2064, 80 L.Ed.2d 674 (1984).
4
Hill v. Lockhart, 474 U.S. 52, 59-60, 106 S.Ct. 366, 370-71,
88 L.Ed.2d 203; see Strickland, 466 U.S. at 694, 104 S.Ct. at
2068.
5
United States v. Gipson, 985 F.2d 212, 214 (5th Cir.1993).
6
Buffalo v. Sunn, 854 F.2d 1158, 1165 (9th Cir.1988); see
also United States v. Hughes, 635 F.2d 449, 451 (5th Cir.1981);
Owens v. United States, 551 F.2d 1053, 1054 (5th Cir.1977), cert.
denied, 434 U.S. 848, 98 S.Ct. 155, 54 L.Ed.2d 115 (1977).
3
that he and Severin extensively discussed the entrapment defense
while Severin attests, in statements supported by the affidavit of
his girlfriend, that he only met briefly with his trial counsel and
that he was told that federal law precluded the entrapment defense.
Under such circumstances, the evidence presents an issue of
credibility that cannot be decided solely from written affidavits.7
Because Severin's allegations, if true, would entitle him to relief
and because the record does not contain other evidence of the truth
or falsity of any of the assertions, the district court erred by
denying habeas relief on Severin's ineffective assistance claim
without holding an evidentiary hearing.8
Next, Severin contends that the district court violated its
Rule 11 duties by accepting his guilty plea without first informing
of the "knowingly" element of the charged crime and of his right to
cross-examine witnesses. The district court properly denied both
claims as frivolous.
First, 21 U.S.C. § 841(a)(1) punishes "any person who
knowingly or intentionally ... possess[es] with intent ... to
distribute ... a controlled substance".9 Before accepting
Severin's guilty plea, the district judge asked Severin whether he
7
See Buffalo, 854 F.2d at 1166.
8
Id.; Jordan v. Estelle, 594 F.2d 144, 145 (5th Cir.1979).
We note that the district judge complied with the statement by this
Court in Severin's initial appeal, which stated that the court "at
least ... [should] obtain[ ] an affidavit from appellant's trial
counsel," Severin, 53 F.3d 1282 No. 94-30590, at 7; nevertheless,
the lack of corroboration of the affidavit by other evidence in the
record requires this case to be remanded again.
9
21 U.S.C.A. § 841(a)(1) (West 1981) (emphasis added).
4
"intentionally possessed with intent to distribute a kilo of
cocaine," to which Severin responded affirmatively. The district
court, then, did not omit an element of the charged offense.
Second, Rule 11 requires that the district court address only
three core concerns: "(1) whether the guilty plea was coerced;
(2) whether the defendant understands the nature of the charges;
and (3) whether the defendant understands the consequences of his
plea".10 In the instant case, the colloquy between the district
judge and Severin reveals that Severin agreed that the guilty plea
was not coerced and that he understood the rights that he was
waiving. While the district judge did not specifically inform
Severin that he was waiving "the right to cross-examine", it is
clear that Severin was instructed that he was waiving a trial at
which both sides could call witnesses to testify before him; thus,
the district court's slight deviance from the technical
requirements of Rule 11 cannot be reasonably viewed as having had
a material impact on Severin's voluntary decision to plead guilty.11
For the foregoing reasons, we VACATE and REMAND this case
solely with respect to Severin's claim of ineffective assistance of
counsel. On all other grounds, the judgment of the district court
10
United States v. Johnson, 1 F.3d 296, 300 (5th Cir.1993) (en
banc).
11
See Johnson, 1 F.3d at 302; United States v. Gomez-Cuevas,
917 F.2d 1521, 1525 (10th Cir.1990) (holding that the district
court's failure to inform the defendant of his right to confront
and to cross-examine witnesses was harmless error because the
record revealed that his guilty plea was voluntary and that he
understood the nature of the charges against him); see also
FED.R.CRIM.P. 11(h).
5
is AFFIRMED.
6