United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
JON E. DEGUILIO, District Judge.
After Michael Hodowaniac (a/k/a Michael Hodowaniec) was brought into a planned arson of a vehicle by his father John Hodowaniac, Michael Hodowaniac pled guilty of attempting to maliciously damage a vehicle, in violation of 18 U.S.C. § 844(i). On February 15, 2013, Hodowaniac was sentenced to sixty months of imprisonment, which was the statutory mandatory minimum term of imprisonment [DE 69]. On February 10, 2014, Hodowaniac timely filed a petition pursuant to 28 U.S.C. § 2255 [DE 75]. After Attorney David Weisman was appointed on behalf of Hodowaniac [DE 77], Mr. Weisman filed a memorandum in support of Hodowaniac's petition [DE 84]. The government filed its response [DE 88], and the defense filed its reply [DE 89]. For the reasons set forth below, the Court DENIES Michael Hodowaniac's 28 U.S.C. § 2255 petition.
A. The § 2255 Petition
In Hodowaniac's § 2255 petition and defense counsel's supporting briefs, Hodowaniac alleges that his appointed trial counsel, Mr. Brian May, provided ineffective assistance in the following ways: (1) by failing to advise Hodowaniac about the import of waiving his right to file a § 2255 petition [DE 75 at 4; DE 84 at 5]; (2) by failing to tell Hodowaniac that he was not eligible for a sentence lower than the mandatory minimum through application of the safety valve provision [DE 75 at 7; DE 84 at 5-6]; (3) by advising Hodowaniac that he might avoid the mandatory minimum through application of Guidelines § 5K2.0 or based on the various § 3553 factors (and by advising Hodowaniac that a sentence closer to 30 months would be recommended to the Court-but wasn't) [DE 75 at 5, 8; DE 84 at 6-9]; and (4) by failing to investigate or explain the possibility of presenting an entrapment defense [DE 84 at 9-10]. As a result of these combined errors, Hodowaniac claims that his guilty plea, including his waiver of the right to file a § 2255 petition, was not knowingly, intelligently, and voluntarily entered. Other than the statements Hodowaniac provided in his "form § 2255 petition, " which he signed under the penalties of perjury [DE 75 at 13], Hodowaniac and his appointed counsel Mr. Weisman have offered no additional evidence in support of his petition.
B. The Plea Agreement and Change of Plea Hearing
On November 7, 2012, Hodowaniac entered into a plea agreement wherein he agreed to plead guilty to Count 1 of the Indictment charging him with attempting to maliciously damage a vehicle, in violation of 18 U.S.C. § 844(i). In light of the guilty plea, the government agreed to dismiss Count 2 of the Indictment, charging Michael Hodowaniac and John Hodowaniac with conspiring to maliciously damage a vehicle by means of a fire, in violation of 18 U.S.C. § 844(n).
In his plea agreement, Hodowaniac represented that he had told his attorney, Mr. May, about the facts and circumstances surrounding the charges, that he believed Mr. May was fully informed as to the nature of the charges, and that Mr. May then counseled Hodowaniac about his possible defenses [DE 29 at ¶ 5]. Hodowaniac further represented that he believed Mr. May had "done all that anyone could do to counsel and assist [him], " and Hodowaniac confirmed that he was offering his plea of guilty "freely and voluntarily and of [his] own accord" and no promises were made to him other than those contained in the plea agreement. Id. at ¶¶ 11-12.
With respect to the penalties faced by Hodowaniac, the plea agreement indicated in relevant part that Hodowaniac faced a penalty of "5 to 20 years imprisonment." Id. at ¶ 9(b). Hodowaniac also "agree[d] that the Court has jurisdiction and authority to impose any sentence within the statutory maximum set for [his] offense(s) as set forth in this plea agreement." Id. at ¶ 9(d). The agreement also contained a waiver provision which stated, in part:
I expressly waive my right to appeal my conviction, my sentence and any restitution order to any Court on any ground, including any claim of ineffective assistance of counsel. I also agree not to contest my conviction, my sentence, any restitution order imposed, or the manner in which my conviction, the sentence or restitution order was determined or imposed on any ground including any alleged ineffective assistance of counsel in any appeal under Title 18, United States Code, Section 3742 or in any post-conviction proceeding, including but not limited to, a proceeding under Title 28, United States Code, Section 2255.
Id. at ¶ 9(d).
At the change of plea hearing before the magistrate judge on November 15, 2012, Hodowaniac was placed under oath and he swore to tell the truth [DE 88-1]. Hodowaniac confirmed that he read, understood, and reviewed the plea agreement with his attorney. Id. at 5-6, 13. He also confirmed that there were no promises outside the plea agreement that he was relying on to plead guilty, and that he was satisfied with Mr. May's representation. Id. at 6, 14. Mr. May confirmed that the government had been "very generous in [its] discovery" and he and Hodowaniac had "reviewed that material, as well." Id. at 10.
Hodowaniac was advised of the nature of the charge and the possible penalties [DE 88-1 at 10-11]. The government stated that Count 1 involved an imprisonment range of "five years up to a maximum of twenty years." Id. at 11. The magistrate judge also specifically confirmed that Hodowaniac understood that upon pleading guilty to this offense he "could be sentenced up to twenty years, but it also carries with it what we call a mandatory minimum of five years. So that would be five to twenty, but twenty is the maximum." Id. at 11. Mr. Hodowaniac expressed his understanding of the possible range for imprisonment.
After confirming that Hodowaniac had discussed the sentencing guidelines with Mr. May, the magistrate judge explained that regardless of Mr. May's assessment of the guidelines, "whatever [Mr. May] has said, it's his opinion, and it's not official or final." [DE 88-1 at 12]. The magistrate further stated: "So all I'm saying is whatever you may have discussed or understood with anyone, it's just their opinion, and it's not official until the Court determines your guidelines and that won't occur until sentencing. Okay?" Id. To which Hodowaniac answered: "Yes, sir." Id.
The magistrate judge twice informed Hodowaniac that the probation department would prepare a presentence investigation report (PSR) and that Hodowaniac and his attorney would have the opportunity to review the PSR and indicate whether any errors or miscalculations, including miscalculations of the guidelines, were contained in the report [DE 88-1 at 12, 20]. The magistrate judge indicated that Hodowaniac could then bring any errors to the court's attention prior to sentencing, because it was "at sentencing... when the Court will determine what [his] guidelines are." Id. Again, Hodowaniac confirmed that he understood these things.
Thereafter, Hodowaniac was told by the magistrate judge that "whatever the Court determines your guidelines ultimately to be, the Court doesn't have to follow them, because they're guidelines. What that means is that, in the end, the Court could impose a more severe sentence than what the guidelines may be recommending or, for that matter, less severe, but it can't exceed the maximums that we've discussed here." [DE 88-1 at 13]. Hodowaniac indicated that he understood. Id.
Finally, the magistrate judge specifically drew Hodowaniac's attention to the waiver provision located in paragraph 9(d) of his plea agreement and explained to Hodowaniac that if he was found guilty after a trial he would have the right to appeal with the assistance of counsel, but by pleading guilty he would not be able to appeal his conviction or sentence to any court on any ground-and Hodowaniac affirmed that he understood what his waiver entailed [DE 88-1 at 8-9, 14]. Despite Hodowaniac's professed understanding, the magistrate judge reiterated the import of the waiver provision by stating:
So what that could mean to you is if you receive a sentence that is more severe than what you thought you were going to get, perhaps more severe than what Mr. May suggested, or what the guidelines recommend, or even what the United States recommends, you'll not be able to withdraw your guilty plea as a result and nor, as we've just discussed with that other paragraph will you be able to appeal. Do you understand that?
[DE 88-1 at 15]. Again, Hodowaniac responded that he understood. Id.
During the change of plea hearing, the government proffered the factual basis for the crime [DE 88-1 at 17-19]. That is, on September 27, 2012, John Hodowaniac began arranging with a then unknown confidential informant (CI) a plan to set fire to a vehicle, for which the CI agreed to pay only $300. Several conversations between John Hodowaniac and the CI were exchanged, and on October 3rd, the CI spoke again with John Hodowaniac to confirm that the arson was to take place later that evening. In response, John Hodowaniac said "We'll be ready, " at which point the agents realized that another person was involved, and that person turned out to be John Hodowaniac's son, Michael Hodowaniac. The CI, equipped with recording devices, went to the home where John and Michael Hodowaniac resided. After paying the money, the CI and the Hodowaniac's went to a gas station where Michael Hodowaniac filled a rubbing alcohol bottle with gasoline. After Michael Hodowaniac spilled gas on himself, John Hodowaniac indicated that he would now have to set the car on fire. They then proceeded to the target vehicle, where Michael and John Hodowaniac were arrested for attempting to commit arson. Upon being interviewed by ATF, Michael Hodowaniac admitted to agents that he and his father had accepted the money to commit the arson. Id.
During the course of the plea hearing, Hodowaniac agreed with the government's proffer [DE 88-1 at 19]. Hodowaniac also explained in his own words what he did that made him guilty, and represented to the Court that he had in fact accepted a cash payment to set the vehicle on fire and ...