The opinion of the court was delivered by: OLIVER GASCH
Defendant lists an exhaustive battery of reasons why this Court should vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255. In support of her motion, defendant alleges (1) that her right to due process was violated because she was held without a criminal information or indictment for 16 days; (2) that she was denied counsel during the initial arrest and investigation phase of this proceeding; (3) that she received ineffective assistance of counsel; and (4) that she provided substantial assistance to the authorities who neglected to file a motion to reduce her sentence.
Also before this Court is defendant's motion to amend her Section 2255 motion, adding to her list of grievances that she is innocent by reason of duress. She also argues that her guilty plea was itself the product of duress and coercion and thus, the assistance of her counsel was ineffective because he failed to spot and argue this alleged coercion. Defendant further seasons her proposed amendment with more alleged errors and omissions on the part of her counsel.
Finally, defendant requests an extension of time to file opposition papers to the government's response to her Section 2255 motion.
Defendant was arrested in the gray morning hours of December 5, 1989. She was en route to North Carolina from New York City when her bus made a scheduled stop in Washington, D.C. shortly after 4:00 a.m. A fellow traveler alerted a security guard that a female passenger boasted of possessing drugs and a gun. The security guard, in turn, informed the police who boarded the bus and approached the defendant. During a brief conversation with the police, defendant rifled through her tote bag apparently searching for identification. From the tote, she removed a small plastic bag. The police asked if they could look in the bag and the defendant consented. Inside the bag, the police discovered 47.4 grams of crack cocaine. The defendant was placed under arrest, and a subsequent search of her tote bag revealed a loaded handgun.
On February 23, 1990, defendant pleaded guilty to Unlawful Possession with Intent to Distribute Five Grams or More of Cocaine Base pursuant to 21 U.S.C. §§ 841(a) and 841(b)(1)(B)(iii), as well as Using and Carrying a Firearm in Relation to a Drug Trafficking Offense pursuant to 18 U.S.C. § 924(c). On September 7, 1990, defendant was sentenced to 147 months imprisonment. Thereafter, this Court granted defendant's motion to depart from the Sentencing Guidelines, and on July 22, 1991, reduced defendant's sentence to 120 months because of her extraordinary personal history and family background.
Defendant's first two allegations, having been held for 16 days prior to indictment and having been denied counsel during her arrest and the initial investigation, both concern supposed violations which occurred prior to her guilty plea and do not affect the voluntary nature of that plea. Therefore, those issues cannot be raised collaterally. As the Supreme Court noted in Tollett v. Henderson, 411 U.S. 258, 267, 36 L. Ed. 2d 235, 93 S. Ct. 1602 (1973):
Tollett, 411 U.S. at 267.
Although Tollett concerns state prisoners' habeas corpus petitions, the same argument has been adopted in Section 2255 motions. See Bass v. United States, 739 F.2d 405, 406 (8th Cir. 1984) ("Under Section 2255, after a guilty plea, the focus of collateral attack is limited to the nature of counsel's advice and the voluntariness of the plea." (citing Tollett, 411 U.S. at 266)); Gioiosa v. United States, 684 F.2d 176, 179 (1st Cir. 1982) ("[a] guilty plea operates to waive all nonjurisdictional defects that might be attacked in a § 2255 motion").
Because defendant failed to raise these issues prior to her plea of guilty, and twice in open court declared that she was pleading guilty because she was guilty and for no other reason, TR.I at 4, 9, she cannot now raise these allegations in the context of a Section 2255 motion. Rather, defendant may only challenge the voluntary and intelligent character of the guilty plea by showing that her counsel was inadequate. Tollett, 411 U.S. at 267. It is this inadequacy which defendant challenges in both her original Section 2255 motion and her proposed amendment to that motion.
The standard to be used in a collateral charge of ineffective assistance of counsel in a guilty plea is laid out in Hill v. Lockhart, 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985), which applies the holding of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), to such pleas. United States v. Del Rosario, 284 U.S. App. D.C. 90, 902 F.2d 55, 57 (D.C. Cir.), cert. denied, 498 U.S. 942, 112 L. Ed. 2d 316, 111 S. Ct. 352 (1990). For defendant to be successful, Hill requires that she demonstrate: (1) "counsel's representation fell below an objective standard of reasonableness." Hill, 474 U.S. at 57; and (2) "but for counsel's errors, [she] would not have pleaded guilty and would have insisted on going to trial." Id., 474 U.S. at 59 (footnote omitted). See also Strickland, 466 U.S. at 687-688, 694 (discussing a similar two-part test).
In her motion, defendant fires a volley of alleged inadequacies at her counsel. Because she lists so many purported errors and omissions, it is best to list them first and then address them one by one, saving defendant's more weighty charges of duress and coercion to the end.
To begin, she accuses counsel of failing to move for the suppression of evidence garnered in a supposedly illegal search. She accuses counsel of not knowing of her deficient I.Q. and history of victimization. Defendant also charges that counsel allegedly neglected to object to her presentence report and that counsel failed to submit evidence that she provided substantial assistance to the government. She faults counsel for a lack of investigative diligence and she accuses counsel of refusing to allow her to withdraw her guilty plea, supposedly after she learned that she faced twelve years in prison as opposed to the five years counsel is purportedly to have promised her.