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[NOT FOR PUBLICATION]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-Mala
_____________
___________________
Assistant United States Attorney, on brief for appellee.
____________________
____________________

Per Curiam.
__________

Appellant Jose A. Ortiz

pro se,
___ __

moved

pursuant

to

district

court erred

conducting an

to vacate,
28 U.S.C.

Act of

or correct

2255.

his

sentence

Ortiz maintains

that the

in dismissing

all his

claims without

evidentiary hearing concerning whether (1) the

sentence imposed
Reform

modify

Casanova, acting

failed to take into

1984, (2)

account the Sentencing

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
Assuming,
cognizable

breached

the

plea

without deciding,
in

2255

agreement

at

sentencing.

that these

challenges

proceeding, see
___

Knight
______

are all
v. United
______

States, 37 F.3d 769, 772-74 (1st Cir. 1994), we find no error

______
and affirm.
BACKGROUND
On October 1, 1987, Ortiz
occupants
were

of a boat found

arrested.

and a co-defendant, the

to contain 195

Subsequently,

counts of cocaine importation

both

were

sole

kilos of cocaine,
indicted on

two

and distribution charges.

See
___

United States v. Palmer-Contreras, 835

_____________
________________

F.2d 15, 16 (1st Cir.

1987)

affirming

(setting

pretrial bail).
to one count and
government.

out
Ortiz

background

and

petitioned to enter a plea

executed a written plea agreement

denial

of

of guilty
with the

A change-of-plea hearing was held on January 26,

1988.

The

plea was

accepted, and

aiding and abetting the

cocaine under
violation

of

841(a)(1) and

of the

1988, Ortiz was sentenced

of

2, in
of

1986

On April

6,

to twenty-five years imprisonment,

of supervised release, a

for correction

Abuse Act

26, 1986).1

fine, and a $50 special assessment.

Ortiz

18 U.S.C.

Anti-Drug

("ADAA"), Pub. L. No. 99-570 (Oct.

five years

convicted of

possession with intent to distribute

21 U.S.C.
1002

Ortiz was

$50,000 stand-committed
After various motions by

sentence, the

1990, reduced

25,

years.

Further motions to modify the sentence and fine were

sentence was

Ortiz'

direct

of imprisonment

on

January

unsuccessful.

his term

district court,

appeal

from

to 18

conviction

ultimately dismissed by this court

and

for lack of

prosecution.
(1)
(1)

The Sentence.
____________

Ortiz

contends

that

he

should

have

been

according to the guidelines promulgated under the

Reform

Act of

1984.

November 1, 1987 and,

offenses

The

guidelines

Sentencing

became operative

it is manifestly clear, apply

committed on or

after that date

date of

conviction or sentencing.

Pub. L.

No. 100-182 (Dec. 7,

see
___

sentenced

United States v. Twomey,

_____________
______

on

only to

regardless of the

Sentencing Act

1987); 18 U.S.C.
845 F.2d 1132,

of 1987,
3551 note;

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

___ ____ ______________
_______
(11th Cir.

1990).

that occurred

Because Ortiz was

in October 1987, the

795, 800

convicted of

conduct

sentencing guidelines do

not apply, and he was properly sentenced under pre-guidelines

law.

United States v. Richard,

_____________
_______

1991); United States

_____________
1990).

There

is no

v. Thomas,
______

943 F.2d 115, 120 (1st

895 F.2d 51,

constitutional right

sentencing guidelines that put into

levels

for a

crime after

United States v.
_____________
Ortiz'

argument that

effective dates

it

benefit from

was committed.

741, 742 (D.C.Cir.

is inconsistent

for penalty provisions

to fix

of the ADDA

Sentencing Reform

Act of 1984 was expressly

Supreme

Gozlon-Peretz v.
_____________

Court in

to

Cir.

effect lesser punishment

the offense

Hayes, 929 F.2d

_____

58 (1st

Cir.

See
___
1991).

different
and the

rejected by the

United States,
_____________

498 U.S.

395, 405-09 (1991).

sentence

Otherwise, Ortiz does not argue that the

imposed

was

constituted cruel
F.2d at 120.

not

within

statutory

and unusual punishment.

limits

or

See Richard, 943

___ _______

The sentencing guidelines were never applicable

to Ortiz and he was properly sentenced under the ADAA.

(2)
(2)

The Fine.
________

Ortiz argues
fine of

that the

imposition of

a stand-committed

$50,000 is unjustified and exorbitant

indigent.

This claim is premature.

available

administrative

remedies

Ortiz must first pursue

designed

inability to pay a fine, 18 U.S.C.

because he is

to

evaluate

3569; Santiago v. United

________
______

-4-

States,
______

889

without

standing to

until

and

nonpayment.

F.2d 371,

unless
See

372-73 (1st

contest his
the

government

United States

Cir.

1989), and

he is

fine on

indigency grounds

seeks

incarceration for

v. Levy, 897

F.2d 596,

598

___
(1st

_____________

Cir. 1990).

liability

____

The mere existence of an outstanding penal

does not

violate an

indigent prisoner's

rights.

United States v. Rivera-Velez, 839 F.2d 8 (1st Cir. 1988).

_____________
____________
(3)
(3)

The Plea.
________

Ortiz

first

defective because

maintains

that

the

the court failed to

plea

colloquy

was

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

at

most.

However,

memoranda,
parties
attorney

his

plea

to serve six years and

the

recited

attached affidavit,
agreement,

and his

plea proceeding.

contradict Ortiz'

and

the

codefendant's

present enough evidence

of the

facts

the plea

assertion that

Ortiz'

attorney2 do

2255

petition, the

declarations

to overcome the
These

in

eight months

of

Ortiz'

not, overall,

presumed regularity

record documents effectively

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
representation

that he

serving one-third of
to

would be

eligible for

his sentence and that

reveal to him that

relies on Durant
______

he relied upon his attorney's

his offense was

parole after

the court failed

nonparolable.

v. United States, 410 F.2d

______________

Ortiz

689, 693

Cir. 1969), which held

that a defendant must be

parole ineligibility.

However, the 1974

(1st

informed of

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

ineligibility for parole.

1, 4 (1st

Cir. 1981);

486

Bejarano,
________

Notes of

Advisory

also United States v. Fox,

____ _____________
___

941 F.2d

(7th Cir.

1991);

861

206,

assertion that

F.2d
no

one

as statutory

Johnson v. United States, 650 F.2d

_______
_____________

see Rule 11(c)(1)

___

Committee on Rules; see

___
480,

guilty plea such

United States v.
______________
209

(9th

mentioned

Cir.

parole

Sanclemente____________

1988).

Ortiz'

ineligibility

is

patently

inadequate

constitutional
F.2d

to

set

grounds.

31, 33 (1st Cir.

aside

his

guilty

See United States v.

___ ______________
1983) (due process

plea

on

Garcia, 698
______

not offended when

parole eligibility advice omitted in plea-taking).

(4)
(4)

Ineffective Assistance.
______________________

Ortiz

charges that

his

assistance of counsel during

attorney rendered

ineffective

the plea negotiation process by

-6-

misrepresenting

to

Specifically, Ortiz
plead guilty by
parole
and that
But for

him

his

eligibility

alleges that

telling him

for

parole.

his lawyer induced

that he would

him to

be eligible

for

after serving approximately one-third of his sentence

the sentence

imposed would

those representations,

not exceed

Ortiz insists that

ten years.
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

test of Strickland
__________
(1984).

v. Washington, 466 U.S. 668,

__________

Hill v. Lockhart, 474

____
________

petition

and

plea

prejudice
687-88, 694

U.S. 52, 58 (1985).

agreement

contradict

The plea

Ortiz'

belated

assertions that he was assured a specific sentence, as do the

attorneys'

declarations

representation
were made.

that

concerning

Allegations

F.3d

plea

allegation
simply

inadequate

1179, 1184 (10th

guess" regarding parole does not

Ortiz'

attorney
to

sustain an

Knight v. United States, 37

______
______________

involuntary).

that his

or

or sentencing

are insufficient to

Meachum, 842 F.2d

_______

Cir. 1988) (attorney's "bad

render

prediction

based solely on counsel's inaccurate

claim.

at 775; Worthen v.
_______

promise,

parole eligibility

predictions about sentencing

ineffective assistance

no

misled him

warrant

an

Hernandez-Hernandez v. United States,

___________________
_____________

-7-

unadorned
as

factual

to parole

evidentiary

is

hearing.

904 F.2d 758, 762 (1st

Cir. 1990) (to

usually

obtain hearing,

accompanied

by

highly specific

independent

allegations

corroboration

are

required).
Even

if

Ortiz

could

Strickland's test, he has

__________
he was prejudiced
60.

satisfy

the

prong

of

failed to sufficiently allege that

by the alleged error.

To establish

cause

prejudice, Ortiz

Hill, 474 U.S.

____

must show a

at

reasonable

probability that, armed with correct information, the outcome

would have

been different.

Ortiz' bare and

that

Strickland,
__________

conclusory statement

466

that if

U.S. at

694.

he had

known

his offense was nonparolable, he would not have pleaded

guilty and would have

prejudice.

gone to trial is insufficient

to show

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

eligible for parole

otherwise

only if

indicated any

he pleaded guilty,

"special circumstances"

support a reasonable inference

important.
offense

is

that parole was

Hill, 474 U.S. at 60.

____
nonparolable.

Ortiz'

he would be
nor has

he

that might
particularly

As Ortiz acknowledges, his

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,

prejudice

Ortiz "failed

from the allegedly

that would have

to

allege

the kind

incompetent advice

entitled him to a hearing."

of

of counsel

Hill, 474 U.S.

____

at 53.
(5)
(5)

Breach of Plea Agreement.

________________________

Ortiz' last foray--that the government breached the plea

agreement--is frivolous.
violated the letter and

Ortiz maintains that the government

the spirit of the plea

appending to the presentence

the

estimated

report a letter indicating that

wholesale value

of

between 6 and 6.5 million dollars.

to

bring all

relevant

agreement by

the

cocaine seized

was

The government had a duty

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

judge who presided over all the prior

may

take

into

account

presented to the

proceedings, the judge

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

relief

based upon

the

papers

familiarity with the case.

Governing

of

record and

Id. at 225-26; Rule

___

the

court's

4(b), Rules

2255 Proceedings.

The judgment of the district court is affirmed.

________

-9-

2255