
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1089                              CARLOS A. DIGIORGI ALEGRE,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                                     ERRATA SHEET            The first  sentence of  the second  paragraph on page  11 in  this        unpublished opinion dated August 31, 1992, is amended as follows:            Replace  "prove his  innocence" with  "require the  government  to        prove his guilt."August 31, 1992                                [NOT FOR PUBLICATION]                                 ____________________        No. 92-1089                              CARLOS A. DIGIORGI ALEGRE,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                               Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Lydia Lizarribar-Masini on brief for appellant.            _______________________            Daniel F. Lopez-Romo, United States Attorney,  and Jorge E.  Vega-            ____________________                               _______________        Pacheco, Assistant United States Attorney, on brief for appellee.        _______                                 ____________________                                 ____________________                                   Per   Curiam.         Carlos   A.   Digiorgi-Alegre                      ____________            ("Digiorgi") seeks  to invalidate his guilty  plea to charges            of aiding and abetting the  distribution and sale of cocaine.            28  U.S.C.   841(a)(1); 2 U.S.C.    2.  His petition under 28            U.S.C.    2255 to set  aside his conviction  and sentence was            dismissed  without  an  evidentiary  hearing.    This  appeal            challenges the  district court's rejection of  his claim that            ineffective  assistance   of   counsel  rendered   his   plea            involuntary.  We affirm.                                      BACKGROUND                                      BACKGROUND                                      __________                 At the  change of plea hearing,  the government outlined            its  case.   It  would show  that  on two  separate occasions            Digiorgi, with the assistance of others, had sold cocaine  to            a  federal  agent.    The  government  represented  that,  in            addition to the testimony of an informant and  the undercover            agent who  had consummated  the sales,  it had available  the            following evidence: a record of conversations and photographs            taken  at the  first  sale, video  recordings  of the  second            larger sale  (involving a  kilogram of cocaine),  and another            agent's testimony regarding Digiorgi's post-arrest statements            as to how he had obtained the cocaine.                  After detailed explication and cautions by the district            judge,  Digiorgi admitted  that  he had  knowingly aided  and            abetted another in the second cocaine sale.   He acknowledged                                         -3-            his signature on and acceptance of  a written plea agreement1            filed  with the court pursuant  to Rule 11(e)  of the Federal            Rules of Criminal Procedure.   Digiorgi testified that no one            had made any  other promise  which had induced  him to  plead            guilty.  He said that he was fully cognizant of the nature of            the charges  and the consequences2  of pleading guilty.   The            court  accepted the  plea, and  three months  later sentenced                                            ____________________            1.  In  parts relevant  to  this appeal,  the plea  agreement            indicated petitioner's understanding 1) of  the penalty range            for  the offense to which  he would plead  guilty, namely the            distribution  more than  500 grams  of cocaine,  21 U.S.C.               841(a)(1), 2) that the government would recommend the minimum            sentence  in accordance  with  the sentencing  guidelines, 18            U.S.C.   3551 et  seq., 3) that the government  would request            the dismissal of petitioner's indictment on charges resulting            from  the  first  cocaine sale,  and  4)  that  he could  not            withdraw  his  plea  solely  on  the  basis of  the  sentence            actually imposed.                   The plea  tendered carried a statutory  minimum sentence            of five years and a maximum  sentence of forty years, a  fine            not to  exceed two million dollars,  or both, plus a  term of            supervised  release   of  at  least  four   years.    Section            841(b)(1)(B)(ii)  also  states:  "Notwithstanding  any  other            provision of law, the court shall not place on probation .  .            . any  person sentenced under  this subparagraph.   No person            sentenced  under  this  subparagraph shall  be  eligible  for            parole during the term of imprisonment imposed therein."  See                                                                      ___            also  18 U.S.C.    3561(a)(2)  (Probation may not  be imposed            ____            when expressly precluded by statute.)                                   2.  The court engaged  in the following exchange at  the plea            hearing:                 COURT:  Mr. Digiorgi,  did  you hear  the Assistant                 COURT                 U.S.  Attorney  state  the penalty  range  for  the                 offense to which you are pleading guilty?                                     DEFENDANT: Yes.                                                     DEFENDANT                          COURT: And  do you understand, sir, that .                          COURT                 . . you are  not eligible for parole  or probation?                 Are you aware of that?                                                           DEFENDANT: Yes.                              DEFENDANT            Appellant's Appendix at 84-85.                                                                                                -4-            Digiorgi, in accordance  with the negotiated plea  agreement,            to  the statutory  minimum term  of  60 months,  a supervised            release term of four years, and a mandatory penalty of $50.                 One and  one-half years later Dogiorgi  filed this  2255            motion.  It alleges,  inter alia,3 that his plea  was induced                                  __________            by his  attorneys' misrepresentations regarding  sentence and            probation, and  was rendered involuntary because  his counsel            did not  file a single motion or seek discovery in aid of his            defense,  had  failed  to file  a  change  of  plea petition,            pursuant to local rule,  as "ordered" by the  district court,            and  had  advised him  prior  to  sentencing  using the  pre-            sentence report of another  defendant in another case.    The                               _______               _______            motion  also alleged:  "The lack  of effective  assistance of            counsel prejudiced  me as I was  made to take a  plea without            proper legal representation, losing the  opportunity of going            to trial to prove my innocence."  In an affidavit attached to            the motion, Digiorgi's wife averred that she was present when            his  attorney explained that a  guilty plea would  net only a            sentence of probation.   If the  "correct sentence" had  been            explained, the affidavit concluded, "we would not have agreed            to  my  husband  accepting culpability."    Subsequently  the            petitioner  filed   an  affidavit  in  Spanish,   but  it  is            incomplete, unsigned, and untranslated in the record.                                             ____________________            3.  We address only those allegations and issues preserved by            appropriate objection  to the magistrate's  report and raised            and argued on appeal.                                         -5-                 The government's  response and opposition to  the   2255            motion  included  detailed  affidavits4  from  Digiorgi's two            retained attorneys  who had represented  him from arraignment            through sentencing.  Both attested that Digiorgi had admitted            to them,  at the  outset, his  participation in  the offense.            Each stated  that  they  had  met with  Digiorgi  on  several            occasions  to discuss  and  evaluate  the discovery  material            supplied by the government, including laboratory test results            and  agents'  written  reports, as  well  as  the  results of            attorney  interviews  with  the agents  in  the  case.   Both            attorneys   denied  that  probation  was  offered  or  deemed            probable.   Rather, the  plea agreement  was predicated  on a            definite  term of incarceration to  be served.   Even so, the            client was clearly  advised that the ultimate  decision as to            sentence  was with  the  presiding judge,  regardless of  the            recommendations   of  the  parties.     The  affidavits  also            indicated that the government's reports were fully  discussed            and translated prior  to the  change of plea,  and that  even            though Digiorgi understood English,  he had an interpreter at            the plea hearing.  The attorneys affirmed that Digiorgi fully                                            ____________________            4.  While  not  dispositive  of   the  ultimate  question  of            attorney effectiveness,  see United States v.  Butt, 731 F.2d                                     ___ _____________     ____            75,  77-78   (1st  Cir.  1984),  such   "evidence  against  a            petitioner's   extra-record   contentions    [may   be]    so            overwhelming as to justify a conclusion that an allegation of            a  dishonored plea  agreement  does not  raise a  substantial            issue  of fact."  Blackledge v. Allison, 431 U.S. 63, 82 n.25                              __________    _______            (1977) (internal punctuation and attribution omitted).                                         -6-            understood  the evidence  and  charges against  him, and  had            accepted  the plea  agreement as  preferable  to the  risk of            trial.    They maintained  that  pre-trial  motions had  been            deemed  unnecessary  because, early  on,  the government  had            provided  full  discovery,  and  because  Digiorgi,  who  was            arrested during  the offending  transaction, had  provided no            evidence  in his own defense.   In reply, petitioner, without            more, moved for a hearing.                   A  magistrate found that  the record belied petitioner's            assertions  that he  was misinformed  about the  penalties he            would incur if  he pled  guilty, and concluded  that even  if            counsels'   performance    was   otherwise   constitutionally            inadequate  under  Strickland  v. Washington,  446  U.S.  668                               __________     __________            (1984),  the  petitioner  had  failed to  show  a  reasonable            probability  that, absent  those  errors, he  would not  have            pleaded guilty.  Hill v. Lockhart,  474 U.S. 52 (1985).   The                             ____    ________            remaining  grounds  for  relief  were  deemed  frivolous, and            dismissal was recommended.  The district court agreed.                                       DISCUSSION                                      DISCUSSION                                      __________                 To  begin, in  order  for a  plea  to be  voluntary  and            knowing  in  a  constitutional  sense, a  defendant  must  be            "fairly apprised of its consequences."  Mabry v. Johnson, 467                                                    _____    _______            U.S.  504, 509  (1984).   Normally, the  plea and  sentencing            proceeding records  interpose   "a formidable barrier  in any            subsequent  collateral proceeding", and the statements of the                                         -7-            defendant and his lawyer at such a hearing are presumed to be            true.   Blackledge v. Allison,  431 U.S. 63,  74 (1977) ("The                    __________    _______            subsequent presentation of conclusory allegations unsupported            by specifics is  subject to summary  dismissal. . . .")   The            initial "critical  question" is  whether petitioner's    2255            allegations, when  measured against the record  are "palpably            incredible"  or "palpably  frivolous or  false".   Id.  at 76                                                               ___            (attributions  omitted).    For      2255  purposes,  summary            dismissal  is permitted  when such  allegations even  if true            would  not  entitle  the  petitioner  to relief,  or,  as  we            conclude  is the case here,  when they cannot  be accepted as            true because "they are contradicted by the record, inherently            incredible, or  conclusions rather than statements  of fact."            Dziurgot  v. Luther,  897  F.2d 1222,  1225  (1st Cir.  1990)            ________     ______            (attribution omitted).                   To  set  aside  his  plea,  Digiorgi  must  allege,  and            ultimately prove, not only that his counsels'  representation            fell below an objectively  reasonable standard, but also show                                                                ____            it  likely that  that constitutionally  deficient performance            actually affected the outcome  of the plea process.   Hill v.                                                                  ____            Lockhart, 474 U.S. at 57-59.            ________                                          I                                          _                 As  to   the   first  Hill   requirement,   petitioner's                                       ____            allegations fail to state a claim of attorney incompetence:                                         -8-                 a. Digiorgi's contentions  that his counsel  misinformed            him   about sentence and probation do not withstand scrutiny.            Specifically, his  claim was that "the  Government had agreed            to a suspended sentence and that if I did not  accept [guilt]            I   would   get  a   sentence   of   ten  years   to   life."            Contemporaneous with the plea change, however, Digiorgi filed            a written  plea agreement  indicating his awareness  that the            statutory minimum term of five years would  be recommended by            the  government.   At  the  plea  hearing  he  said  that  he            understood the  penalty range and  sentencing guidelines  for            the offense to  which he  pleaded guilty.   In addition,  the            district  court specifically  informed  him that  he was  not            eligible for probation or parole.  See note 1.  At sentencing                                               ___            three month  later, in  arguing for  the minimum  sentence of            five years, petitioner's  attorney stated  that Digiorgi  "is            well aware that there is no probation in this case."                    Digiorgi  attempted  to  cast  doubt  on  the   presumed            regularity  of   the  plea  hearing  by   filing  his  wife's            affidavit.   She  attested  to witnessing  a conversation  in            which  her husband's attorney  stated that a  guilty plea was            the best  decision as the  only sentence would  be probation.            These assertions,  filed almost one and  one-half years after            sentencing,  are countered, by  the express denials contained            in the affidavits of both counsel, and are  also contradicted            by Digiorgi's assurances at  the plea colloquy.  There  is no                                         -9-            sworn  statement  by the  petitioner detailing  his attorneys            alleged misrepresentations to  him.  In sum, the  records and            files in the case  reliably show that Digiorgi knew  what the            government would recommend and which sentence the court could            impose. Petitioner's claimed reliance on probation is clearly            refuted by the record.                 b.                                          II                                          __                 Second, to survive dismissal, Digiorgi must sufficiently            allege  prejudice, i.e., that with adequate representation he                                               ________            would  not have changed his  plea and would  have insisted on            going  to trial.   Hill,  474 U.S.  at  60; United  States v.                               ____                     ______________            Giardino, 797 F.2d 30, 31  (1st Cir. 1986).  Thus, even if we            ________            assume, arguendo,  that everything Digiorgi says  is true and                    ________            that, despite the present state of the record, he could prove            that his  counsel were incompetent, he  nonetheless bears the            additional   burden   to  show   that   "but  for   counsel's            unprofessional  errors, the  result of  the  proceeding would            have  been differest."   Strickland  v. Washington,  466 U.S.                                     __________     __________            668, 694 (1984).                   Here,  Digiorgi  alleges, or  rather, concludes  that by            pleading  guilty he lost the  opportunity to go  to trial and            require  the government  to  prove his  guilt.   He  has  not            alleged  that he would have  withheld his guilty  plea had he                                         -10-            known that  probation was  unavailable.  Hill  requires that:                                                     ____            "in  order  to  satisfy  the  'prejudice'   requirement,  the            defendant must  show that  there is a  reasonable probability            that,  but for  counsel's errors, he  would not  have pleaded            guilty and would  have insisted on going to trial."  474 U.S.            at  59.   Digiorgi's recent  marriage, the  only circumstance            alleged  to support  particular  reliance  upon probation  in            deciding  to  plead  guilty,  presumably remains  an  equally            plausible  reason  to plead  guilty  even  when probation  is            unavailable.  Petitioner offers no other  reason why he would            have risked  trial  and a  higher  penalty exposure  had  his            counsel correctly informed him in that regard.                   But even allowing that Digiorgi had sufficiently alleged            the prejudice prong of Hill  v. Lockhart, the record presents                                   ____     ________            a  barrier   that  conclusively  undermines   any  reasonable            probability that  petitioner would have insisted  on going to            trial.               Digiorgi  now contends that he  was induced to  enter a plea            because of misrepresentations made  by his retained counsel.                                          -11-                                         -12-
