United States District Court, D. Massachusetts
OPINION AND ORDER
A. O'Toole, Jr. United States District Judge.
jury trial, the petitioner, Eddie Jones, was convicted of
four counts related to the transportation of girls and women
across state lines to engage in prostitution. Jones now moves
to vacate his conviction and sentence pursuant to 28 U.S.C.
§ 2255, arguing principally that trial counsel's
advice regarding his sentencing exposure was constitutionally
16, 2007, a federal grand jury returned an indictment
charging Eddie Jones and five others with conspiring to
transport individuals in interstate commerce with intent that
they engage in prostitution, in violation of 18 U.S.C. §
371 (Count 1). Jones was also charged with two counts of
transporting a minor across state lines to engage in
prostitution, in violation of 18 U.S.C. § 2423(a)
(Counts 9 and 14), and one count of inducing travel to engage
in prostitution, in violation of 18 U.S.C. § 2422(a)
(Count 13). Four of his co-defendants pled guilty to various
charges in the indictment, but Jones and co-defendant Darryl
Tavares proceeded to trial. On November 6, 2009, the jury
found Jones guilty of Counts 1, 9, and 14, and acquitted him
of Count 13.
sentencing, Judge Nancy Gertner found that Jones qualified as
a career offender under the United States Sentencing
Guidelines with a guideline range of 262 to 327 months
imprisonment. She imposed a within-guidelines sentence of 300
months imprisonment. His convictions and sentence were
subsequently affirmed by the First Circuit. United States
v. Tavares, 705 F.3d 4, 12 (1st Cir. 2013).
timely moved pro se to vacate his conviction and
sentence under 28 U.S.C. § 2255 claiming ineffective
assistance of counsel. This Court appointed counsel, who
supplemented Jones's filings. An evidentiary hearing was
held during which the parties presented evidence directed
primarily at trial counsel's sentencing-related advice.
Following the hearing, the parties filed further briefing.
Claim of Ineffective Assistance of Counsel During Plea
the Sixth Amendment, criminal defendants are “entitled
to the effective assistance of competent counsel”
during the plea bargaining process. Lafler v.
Cooper, 566 U.S. 156, 162 (2012) (quoting McMann v.
Richardson, 397 U.S. 759, 771 (1970)). Claims that
counsel provided ineffective assistance during plea
negotiations are reviewed using the two-part test of
Strickland v. Washington, 466 U.S. 668 (1984), under
which a defendant must show that counsel's performance
fell below an “objective standard of
reasonableness” and that “but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Lafler, 566 U.S. at 153.
In the circumstances here, where the petitioner claims that
allegedly ineffective advice led him to reject a plea offer
and instead proceed to trial, he must show that but for the
ineffective advice of counsel, there is a
reasonable probability that the plea offer would have been
presented to the court (i.e., that the defendant
would have accepted the plea and the prosecution would not
have withdrawn it in light of intervening circumstances),
that the court would have accepted its terms, and that the
conviction or sentence, or both, under the offer's terms
would have been less severe than under the judgment and
sentence that in fact were imposed.
Id. at 164.
claims that the performance of his trial counsel, Elliot
Weinstein, fell below an objective standard of reasonableness
during plea negotiations because Weinstein significantly
underestimated his sentencing exposure. Jones claims that
Weinstein's inaccurate projection of the likely
sentencing range led him to reject an offer to plead guilty
to certain counts in exchange for a recommended term of
incarceration of 10-12 years and to insist instead on going
to trial because the sentence under the offered plea would
not have been significantly different from the predicted
range after trial. In other words, on the inaccurate advice,
the sentence was not likely to be significantly different
whether he pled or took his chances at trial.
is no dispute that Weinstein failed to appreciate the
defendant's likely status as a career offender under the
Sentencing Guidelines and consequently did not accurately
advise the defendant about his likely guidelines range.
Shortly before trial, Weinstein sent a letter to Jones
advising him about his sentencing exposure. He told Jones
that the relevant statute provided for a sentence between a
mandatory minimum of 5 and a maximum of 30 years
imprisonment. He also advised Jones about his calculation of
the applicable sentencing guidelines, stating “[m]y
rough guideline calculation has you at offense level 28,
criminal history VI; that is, after trial roughly 140-175
months. With acceptance of responsibility (that is only if
you plead guilty), offense level goes down to level 26 (maybe
25), 120-150 months. I am not certain about these
calculations but they are pretty close.” (Mot. to
Suppl., Ex. A (dkt. no. 378-1).) However, Weinstein
overlooked the effect of the defendant's two prior felony
convictions for resisting arrest, which qualified him as a
career offender. See U.S. Sentencing Guidelines
Manual § 4B1.1 (2010). As a career offender, his
guideline range, as actually calculated after trial, was
262-327 months, a little more than double what Weinstein had
advised Jones. (Sentencing Tr. 16, Nov. 22, 2010 (dkt. no.
present purposes it can be assumed that Weinstein's
misestimation of the likely guidelines range fell below the
prevailing professional norm for counseling a client during
plea negotiations. Despite having the benefit of that
assumption, Jones has failed to demonstrate that but for
counsel's error, the result of the proceeding would have
been different. He has not shown that there was a reasonable
probability either that a firm, favorable plea offer would
have been presented to him by the prosecution or that any
similarly favorable sentencing recommendation would have been
accepted by the court. See Lafler, 566 U.S. at 164.
undisputed that no formal written offer to plead guilty in
the form of a drafted plea agreement proposal was ever
presented to Weinstein by the prosecutors. Such an offer
would have had to have been authorized by the line
prosecutors' supervisors, (see Tr. of Evid.
Hr'g 89, 116- 17, Mar. 22, 2018 (dkt. no. 438)), and
there is no evidence that either of the prosecutors in this
case, Leah Foley and George Vien, ever sought-much less
obtained-such approval. Further, on the basis of the hearing
evidence, I find as a fact that while there were likely some
preliminary and informal discussions about Jones's
pleading guilty, such preliminary communications never
crystalized into even a concrete verbal offer by the
government, i.e., one with specific terms such as
the counts to which Jones would plead guilty, the guideline
range to be applied, any sentencing arguments to be foregone,
or the particular facts that Jones would admit. Cf.
United States v. Merlino, 109 F.Supp.3d 368, 376 (D.
Mass. 2015) (analyzing existence of formal offer under
general contract principles for purposes of counsel's
duty to convey plea offers to clients under M ...