The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District
This matter comes before the Court on a motion filed by
Petitioner Santiago Giraldo pursuant to 28 U.S.C. § 2255 seeking
to vacate, set aside, or correct his sentence as a result of
ineffective assistance of counsel. The petition alleges that
Giraldo's attorney, James C. Patton, Esq., (1) did not properly advise Petitioner about a proposed plea agreement offered by the
United States prior to trial and (2) failed to perform
effectively at trial.
On or about May 3, 1999 a single count indictment charged
Antonio Luzardo and Petitioner Santiago Giraldo with conspiring
to distribute and possessing with the intent to distribute in
excess of 100 grams of heroin in violation of 21 U.S.C. § 846. At
the preliminary hearing on said charges, Petitioner was
represented by Kevin Carlucci from the Federal Public Defenders
Office. On or about June 18, 1999, Petitioner's sister hired
James C. Patton, Esq. to represent Petitioner, and three days
later Mr. Patton replaced Mr. Carlucci as Giraldo's counsel.
See Pet. Br. at 1; see also Aff. of Graciela Giraldo,
Attached to Appendix, Ex. D. On June 22, 1999 trial commenced in
the United State District Court for the District of New Jersey
before the Hon. Alfred J. Lechner, Jr., continuing through June
24, 1999 when a jury convicted both Petitioner and co-defendant
Luzardo. Petitioner was sentenced by Judge Lechner on June 1,
2000 to 170 months incarceration and five years supervised
release. A fine $5,000 was also imposed. Petitioner timely
appealed his sentence and, on July 23, 2001, the Third Circuit
remanded the case for re-sentencing. See United States v.
Giraldo, 52 Fed. Appx. 584, 2002 WL 31667847 (3d Cir. Nov. 22,
2002). On remand, undersigned re-sentenced Petitioner to 126 months incarceration. See
Transcript of January 14, 2002 Proceedings, at 39. Petitioner
once again appealed his sentence, and on December 18, 2002, the
Third Circuit affirmed the sentence imposed. On February 25,
2003, Giraldo filed a Petition for a Writ of Certiorari to the
United States Supreme Court which that Court denied on June 27,
2003. The instant petition was filed on February 17, 2004.
I. Ineffective Assistance of Counsel
The Sixth Amendment guarantees the accused in all criminal
prosecutions "the Assistance of Counsel for his defense."
U.S. Const. amend. VI. The "benchmark for judging any claim of
ineffectiveness must be whether counsel*s conduct so undermined
the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result."
Strickland v. Washington, 466 U.S. 668, 684 (1984).
Petitioner's claim that defense counsel's assistance was so
defective as to require a reversal of his conviction must meet
two components. Strickland, 466 U.S. at 687. First, petitioner
must show that counsel*s performance was deficient, that is that
the errors made by counsel were so serious that counsel was not
functioning as the "counsel" guaranteed by the Sixth Amendment.
Id. Second, petitioner must show that the deficient performance
prejudiced his defense. Id. at 694. This requires showing that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. Id.
Judicial scrutiny of counsel*s performance is highly
deferential and counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment. Id. at 689-90.
The Court, in deciding an ineffective assistance of counsel
claim, must judge the reasonableness of counsel's challenged
conduct on the facts of the particular case viewed at the time of
counsel's conduct and decide whether, in light of all the
circumstances, the challenged conduct is outside the wide range
of professionally competent assistance. Id. at 690.
Mr. Patton's Interaction with the Court During Trial
Petitioner cites numerous examples of disagreements which
occurred during trial between Mr. Patton and Judge Lechner. The
examples range from Judge Lechner admonishing Mr. Patton for
calling him "Sir," to the Judge overruling his objections. The
examples do not reflect, as Petitioner suggests, the legal
incompetence or ineffective assistance of counsel. After reading
the trial transcript in its entirety, it is clear that Judge
Lechner's tone and demeanor were consistent throughout the trial.
He periodically scolded both defense attorneys as well as the
Assistant United States Attorneys representing the government. Also evident from the trial transcript is the zealous advocacy
which Mr. Patton displayed on behalf of Petitioner. He throughly
cross-examined the Government's witnesses and consistently
objected to testimony and the proffer of evidence which were
adverse to his client's interests. The Court does not find
counsel's trial performance to be so deficient as to deprive
petitioner of the counsel guaranteed to him by the Constitution
and finds that counsel's actions were reasonable when viewed
within the context of this litigation. As a result, petitioner is
not entitled to habeas relief on this claim.
The Proposed Plea Agreement
Petitioner further alleges that his attorney was ineffective
because he failed to discuss the proposed plea agreement with
Petitioner and failed to draft a timely plea memo for the Court
at the close of trial. Petitioner claims that on May 26, 1999, he
and his attorney at the time, Federal Public Defender Kevin
Carlucci, met with an Assistant United States Attorney to discuss
a potential plea agreement. Petitioner claims that the Plea
Agreement stipulated the following:
The United States and Santiago Giraldo, a/k/a "Diego"
agree to stipulate at sentencing to the statements
set forth below, subject to the conditions in the
attached plea agreement.
1. The applicable guideline is § 2D1.1
2. The controlled substance and amount involved in
the instant conspiracy are as follows: at least 100 grams but not more than 400
grams of heroin.
3. As of the date of this agreement, Santi[a]go
Giraldo, a/k/a "Diego" has clearly demonstrated a
recognition and affirmative acceptance of personal
responsibility for the offense charged under
21 U.S.C. § 846. This results in a decrease of 2 levels,
pursuant to U.S.C.G. § 3E.1.1(a), if Santiago Giraldo
a/k/a "Diego's" acceptance of responsibility
continues through the date of sentencing.
4. As of the date of this agreement, Santi[a]go
Giraldo, a/k/a "Diego" has timely notified
authorities of an intention to enter a plea of
guilty, thereby permitting the government to avoid
preparing for trial and permitting the court to
allocate its resources efficiently. If the offense
level is 16 or greater, this results in an additional
decrease of 1 level, pursuant to U.S.S.G. §
3E1.1(b)(2), unless Santiago Giraldo, a/k/a "Diego"
indicated an intention not to enter a plea of guilty,
thereby forcing the government to prepare for trial.
5. The parties have not reached an agreement on any
other issues relating to sentencing. Each party
reserves the right to litigate any issue relating to
sentencing at the sentencing hearing.
See Pet. Br. at 12-13. Shortly after this meeting, Petitioner
hired Mr. Patton to replace Mr. Carlucci. Petitioner claims that
Mr. Patton advised Petitioner to reject the plea bargain,
"because of his belief that Petitioner was not guilty and that
the charge would be [dismissed]. Attorney described to Petitioner
that this was [entrapment], and counsel reached the decision to
reject the offer." Pet. Br. at 13. Petitioner also alleges that
he informed Mr. Patton that he would accept any decision which he made. Id. at 13-14. Petitioner claims that
when Mr. Patton visited him at the county jail on June 19th
and 20th, Mr. Patton informed Petitioner that the minimum
incarceration period Petitioner was facing was five years and
that this would remain the same even if Petitioner decided not to
have his case tried. Id. at 14. According to Petitioner, on the
first day of trial, he did not have time to speak with Mr.
Patton; however, that evening Petitioner called his sister,
Graciela, and spoke with her about pleading guilty. Petitioner
claims that his sister "told Petitioner that Attorney Mr. Patton
had just called her and told her to tell Petitioner that Attorney
Patton [wants] ? Petitioner [to] plead guilty. Petitioner told
her that she [must] call Attorney Patton early the next morning
and give Attorney Patton Petitioner's decision to plead guilty."
Pet. Br. at 14. Petitioner also alleges that he never discussed
the government's plea offer with Mr. Patton, nor was he aware
whether the government's offer was in writing. Such allegations
are contradicted by Petitioner's other allegations and by the
affidavits of Petitioner and his sister Graciela Giraldo. Pet.
Br. at 14. In her affidavit, Graciela Giraldo states the
On June 22, 1999, Attorney James C. Patton call[ed]
me at my home and told me that after he has
review[ed] the case and the trial has began he
wish[ed] that Santiago plea[d] guilty, I told
Attorney Patton that I will spoke with Santiago at
night and give him the m[e]ssage. The same day at approximately at 8 p.m.
Santiago call[ed] and I gave him the m[e]ssage from
Attorney Patton. My brother told me that h[e] would
plea[d] guilty, because there was some phone call
that he Santiago has made that compromise[s] him
in this case.
Aff. of Graciela Giraldo, Attached to Appendix, Ex. D.
The contradictory allegations made by Petitioner are
insufficient to support his claim of ineffective assistance of
counsel. Although Petitioner states both in his brief and in his
affidavit that he was willing to plead guilty and that Mr. Patton
was aware of this decision, Petitioner in fact did not plead
guilty. The trial record reflects a two hour recess taken by
Judge Lechner on the morning of June 24, 1999. Although it is not
entirely clear from the record, this recess was presumably an
attempt to effectuate a plea bargain between the government and
both defendants. However, after the two hour recess, Mr. Wolin,
co-defendant Luzardo's attorney, stated the following: "There is
no plea, your Honor, we're ready to go." See Trial Transcript,
at 445, 23-24. Mr. Patton then stated "As are we." Id. at 25.
At approximately 3:40 p.m. on June 24th, Mr. Patton informed
the Court that Petitioner wished to plead guilty; however, Judge
Lechner refused to accept the guilty plea because even though a
form for an Application for Permission to Enter a Plea of ...