
USCA1 Opinion

	




          May 18, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2094                                JOSE A. ORTIZ-CASANOVA,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            Jose A. Ortiz Casanova on brief pro se.            ______________________            Guillermo Gil,  United States Attorney, and Salixto Medina-Malave,            _____________                               _____________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.    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    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    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.                 (1)  ____________                 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.            ___  _____________    ______                                            ____________________            1.  The increased penalties, supervised release and no-parole            provisions  of  the  ADAA  became  effective  upon enactment.            Gozlon-Peretz v. United States, 498 U.S. 395, 401-09 (1991).            _____________    _____________                                         -3-            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.                 (2)  ________                 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                                                       ________    ______                                         -4-            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.                 (3)  ________                 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'   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                                            ____________________            2.  Ortiz'  complaints about  his  attorney are  vague as  to            which attorney  represented him.   Early on,  both defendants            were represented by Abreu.  It is clear that Lima assumed the            representation of Ortiz about six weeks  before the change of            plea  proceeding.    Ortiz'  affidavit  indicates  that  both            attorneys visited  him, and, presumably,  his codefendant, in            prison prior to the plea change.                                         -5-            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.                 (4)  ______________________                 Ortiz  charges that  his  attorney rendered  ineffective            assistance of counsel during  the plea negotiation process by                                         -6-            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            ___________________    _____________                                         -7-            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                                         -8-            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.                 (5)  ________________________                 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    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   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   2255 Proceedings.                 The judgment of the district court is affirmed.                                                       ________                                         -9-
