Zubiate v. United States

Background

Miguel Zubiate moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He claimed that his former lawyer, Mitchell Elman, gave ineffective assistance by advising him to reject the Government’s first plea offer. That offer provided for an adjusted offense level of 27, a criminal history category of II, a sentencing range of 78 to 97 months, and a 60-month mandatory minimum sentence. The offer had to be accepted before indictment or discovery was provided.

Zubiate rejected the first offer. He was later indicted, received discovery, and was offered a plea agreement with a stipulated Guidelines range of 151 to 188 months and a 60-month mandatory minimum. After Elman withdrew and Natali Todd was appointed as defense counsel, the Government made a third offer with the same terms. Zubiate accepted it and pleaded guilty to conspiracy to distribute 100 grams or more of heroin. The court sentenced him principally to 102 months’ imprisonment.

Claim and analysis

To prove ineffective assistance of counsel, a defendant must show both that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance caused prejudice. In the plea-bargaining context, prejudice requires a reasonable probability that the defendant would have accepted the offer, the prosecution would not have withdrawn it, the court would have accepted it, and the resulting sentence would have been less severe.

The court rejected Zubiate’s account that Elman advised him to reject the first offer. Elman stated in a sworn declaration that he strongly urged Zubiate to accept it because he believed the Government’s case and the potential for higher drug quantities made acceptance advisable. The court also found that Zubiate’s statements during a January 8, 2019 hearing supported Elman’s account: Zubiate said that he had been uncomfortable accepting a plea without discovery and described disagreements with Elman about pretrial motions. The court concluded that Elman’s conduct did not fall below an objective standard of reasonableness.

The court further held that Zubiate could not establish prejudice even if his performance claim were accepted. Zubiate had said that discovery was important to him and that he felt uncomfortable pleading without seeing it. Because the first offer required acceptance before discovery, the court found that Zubiate had not shown a reasonable probability that he would have accepted that offer.

Rulings

Judge Nathan denied Zubiate’s motion to vacate under § 2255. The court determined that no evidentiary hearing was necessary because the case files and records conclusively showed that Zubiate was not entitled to relief. The court also denied Zubiate’s request for appointed counsel, finding that his claim was not likely to be substantial. No certificate allowing an appeal was issued, the court certified that an appeal would not be taken in good faith, and the court denied permission to appeal without paying court fees.