UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Raymond Ngankou

v. Civil No. 06-309-JD

United States of America

O R D E R

This is the second § 2255 petition to be filed by the

petitioner.

Background

The traverse of the underlying criminal case (02-cr-124-JD)

and the two subsequent § 2255 petitions (04-cv-293-JD and 06-cv309-JD) reveals that similar issues have been raised and reviewed

several times.

On July 17, 2003, pursuant to a plea agreement, the

petitioner entered a plea of guilty to three counts of

distributing cocaine, one count of conspiracy to distribute

cocaine, and one count of possessing cocaine and cocaine base

crack. As part of the plea agreement, the government and

petitioner agreed on the drug quantities attributable to the

petitioner and the government further agreed that it would not

oppose a two-level reduction in the petitioner's adjusted offense

level under U.S.S.G. § 2D.1.1(b)(C) if the probation department

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determined that the petitioner qualified for the "safety valve"

under U.S.S.G. § 5C1.2. These agreements were not binding on the

court.

The petitioner was thoroughly canvassed by the court

pursuant to the requirements of Fed. R. Crim. P. 11(b). The

government made an extensive offer of proof which the petitioner

and his counsel accepted without exception. The court made a

finding that the petitioner's plea was knowing and voluntary and

supported by a factual basis.

A presentence investigation report was prepared (PSI), under

date of October 9, 2003, which calculated the total offense level

to be 31, which, with a criminal history category of 1, resulted

in a guideline range of 108 to 135 months. However, because one

count carried a mandatory minimum sentence of 10 years, the

effective guideline range was 120 to 135 months. The report

found that the petitioner was an organizer, leader, manager or

supervisor under U.S.S.G. § 3B1.1(c) and increased the base

offense level by 2. This finding also deprived the petitioner of

the "safety valve" protection under U.S.S.G. § 5C1.2. The

petitioner's counsel, in a letter to the probation officer, noted

his objection to the 2 level increase for role in the offense and

the resulting loss of the "safety valve".

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At the sentencing hearing on October 22, 2003, petitioner's

counsel #1 stated that they had intended to object to the role

enhancement but were not going to pursue that objection at that

time. The government recommended a sentence of 120 months, which

was the mandatory minimum, petitioner's counsel #1 concurred, in

light of the role enhancement, and the petitioner accepted full

responsibility while asking for leniency. The court imposed a

sentence of 120 months and advised the petitioner of his right to

appeal.

On August 6, 2004, the petitioner filed his first § 2255

petition (04-cv-293-JD) claiming ineffective assistance of

counsel #1 because his attorney did not object to the PSI report,

including the role enhancement, did not appeal as directed, and

the plea agreement was breached.

The court ordered an evidentiary hearing on whether

petitioner had directed his counsel #1 to appeal, and appointed

counsel #2 to represent the petitioner at that hearing. A

hearing was held on November 22, 2004, at which petitioner's

former counsel #1 testified. The matter was then continued at

petitioner's request. Counsel #2 filed an addendum to the § 2255

petition which thoroughly explained and examined the basis for

the petition. When the hearing was resumed for oral argument on

March 30, 2005, the petitioner and the government were in

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agreement that the defendant should be resentenced. On that same

date, the court issued an order vacating the sentence and

directing that the petitioner be resentenced.

On April 27, 2005, the resentencing hearing commenced. A

revised PSI, under date of April 20, 2005, had been prepared. 

However, the guideline applications remained the same as in the

original PSI. Counsel #2 stated that the principal objection to

the PSI was the role enhancement and the consequent loss of the

safety valve. Counsel #2 argued against the enhancement and for

a guideline range of 70 to 87 months under the safety valve.

Counsel for the government indicated that this issue was

discussed with counsel #1 before the first sentencing and that

the government's position, made clear at that time, was that if

the petitioner objected to the two-level role enhancement the

government would produce evidence in support of a four-level

enhancement the result of which, if successful, would be a

guideline range of 135 to 168 months. Government counsel then

outlined briefly the evidence that would be elicited in support

of the four-level adjustment. Petitioner's counsel #2 objected

to an offer of proof by the government and so testimony from a

government witness, Eric Beland, was taken.

Following the direct examination of Beland, petitioner's

counsel #2 requested a continuance so he could prepare to cross

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examine the witness and any other witness the government might

call. Over the government's objection, the court granted the

continuance. The court stated to counsel for the parties that if

they wished to pursue the matter fully, the court was prepared to

give them the time to do so. The court noted that based on the

evidence it had heard so far, subject to cross-examination, the

government had not supported a four-level increase. However, the

court noted that, taking into account the testimony and exhibits,

which had not yet been subject to cross examination, along with

the petitioner's plea, and the factual proffer at the plea

hearing, there was sufficient reliable evidence for the court to

determine that a two-level adjustment would be warranted. The

court made it clear that this evaluation of the evidence was

subject to any cross examination that would occur.

On August 22, 2005, the resentencing hearing was reopened. 

Petitioner's counsel #2 informed the court that after much

discussion with the petitioner his objection to the PSI was

withdrawn and that the parties would jointly recommend a sentence

of 120 months. The government withdrew its request for a fourlevel role enhancement and pointed out that the case was in the

same posture as it was just prior to the first sentencing, with

the petitioner withdrawing his objections and agreeing to a 120-

month sentence. Therefore, the government requested the court to

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canvass the petitioner on his decision to go forward as

described. The following colloquy occurred.

THE COURT: All right. Mr. Ngankou, you have just

heard what your counsel has represented to the court,

that you are withdrawing your objection to the

presentence investigation report, and I assume that

that's based on information that was made available to

you and to your counsel.

Do you understand what is being recommended to the

court? Do you understand what is being recommended to

the court?

MR. NGANKOU: Oh.

THE COURT: Yes. I's addressing you, yes.

MR. NGANKOU: Okay. Can I talk with him?

MR. SAXE: Yes. He wants an answer.

MR. NGANKOU: Oh.

THE COURT: Do you understand that your objections

to the presentence investigation report are being

withdrawn? Do you understand that?

MR. NGANKOU: Yes, your Honor.

THE COURT: And that what is being recommended is a

sentence of 120 months. Do you understand that?

MR. NGANKOU: Yes, your Honor.

THE COURT: And the court – the government has

recommended that and your counsel has recommended that. 

Do you understand that?

MR. NGANKOU: Yes, your Honor.

THE COURT: And your objections to the report are

being withdrawn freely and voluntarily; is that

correct?

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MR. NGANKOU: Yes, your Honor.

THE COURT: All right. Mr. Saxe, is there anything

further you would like to say?

MR. SAXE: No, your Honor.

THE COURT: Mr. Ngankou, is there anything that you

would like to say before sentence is imposed?

MR. NGANKOU: No, your Honor.

Tr. 8/22/05 pp. 3-5.

The court imposed a sentence of 120 months and advised the

petitioner of his right to appeal.

Discussion

In this second § 2255 petition, the petitioner claims that

his counsel #2 did not file an appeal of his resentencing as

requested and that he was advised to take the 120-month sentence

offered by the government because the judge was going to agree

with the government before the petitioner presented his case.

The court determined that an evidentiary hearing would be

helpful and the hearing was held On May 24 and 25, 2007. The

court appointed new counsel #3 to represent the petitioner, and

both the petitioner and his prior counsel #2 testified.

1. The 120-month sentence

When the petitioner was sentenced the first time, the

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issue of role enhancement and its effect on the safety valve

was a major issue in the case as related in the background

section of this order. It was also an issue in the first §

2255 petition. Therefore, by the time the second

resentencing hearing occurred, the petitioner was very

familiar with the issue when it was again raised at that

hearing by his counsel #2.

Counsel #2, an experienced federal defender, was

confronted with the same situation as counsel #1 when he

challenged the role enhancement, namely, the government

placed him on notice that it would seek a four-level

enhancement.

When counsel #2 asked for a continuance after the

direct examination of the first government witness in order

to prepare to challenge the enhancement, the request was

granted. The court deemed it appropriate to inform the

parties what its view of the evidence was, up to that point,

albeit unchallenged by cross-examination, so they could

evaluate their positions before the next hearing. This

would allow the parties an opportunity to assess all of the

evidence that they anticipated might be introduced on the

enhancement issue, including what might be elicited on

cross-examination of the government's first witness, and to

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review the risks and benefits of pursuing the matter.

Counsel #2, in the exercise of sound professional

judgment, ordered a transcript of the April 27, 2005

resentencing hearing and forwarded a copy to the petitioner

because he knew it was important for him to understand what

occurred at the hearing. The petitioner, even after

prodding from counsel #2, did not review the transcript

until approximately some time in July 2005. Between the

first and second resentencing hearing, counsel #2 spoke with

the petitioner six times, three times in person at the jail,

for a total of 8.3 hours. Their lengthy conversations

involved the role enhancement and counsel #2 was trying to

get the petitioner to focus on the issue and to decide what

to do. Characteristically, the petitioner would start

talking about other matters and counsel #2 would tell him of

the need to make a decision. Counsel #2 gave him his

evaluation of the Beland testimony, noted that subject to

rebuttal it was credited by the judge for a two-level but

not a four-level role enhancement, that the other witnesses

would probably testify consistently with the discovery, and

that it was unlikely there would not be a two-level

enhancement. He further opined that if the petitioner were

going to convince the judge not to give him the enhancement

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he would have to testify which ran the risk of loss of

acceptance of responsibility and possible obstruction which

would have an effect on the sentence. Counsel #2 told him

that the likelihood of a two-level enhancement was high, of

no enhancement was small, and that the risk of a four-level

enhancement was great.

On August 2, the petitioner called counsel #2 and told

him that he would accept the 120-month sentence. It is not

without significance that the petitioner called counsel #2

to inform him of his decision. Counsel #2 memorialized

their discussions and petitioner's decision in a letter to

him dated August 2, 2005 (see defendant's exhibit A). 

Counsel #2 called the petitioner on August 15, 2005 to

confirm his decision and the petitioner did so.

The resentencing hearing resumed on August 22, 2005. 

Counsel #2 met with the petitioner before the hearing and

there was no indication he had changed his mind. It was

counsel #2's opinion that the petitioner's decision to waive

his objection to the two-level role enhancement was knowing,

voluntary, and intelligent. That decision was made by the

petitioner after many discussions with counsel #2 and after

taking sufficient time to think about it.

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When the resentencing hearing resumed on August 22,

2005, counsel #2 informed the court that the objection to

the role enhancement was withdrawn and that the parties

would jointly recommend a sentence of 120 months. As

previously set forth in detail in the background section,

the petitioner was canvassed by the court concerning this

decision and the 120-month sentence was imposed.

The court credits the testimony of counsel #2 at the

evidentiary hearing held on this petition (May 25, 2007)

concerning this issue. Counsel #2 spent a total of

approximately 64 hours on the petitioner's case. He

successfully convinced the government to agree to a

resentencing and he thoroughly reviewed the role enhancement

issue with the petitioner so that he was in a position to

make an informed decision on the matter before resentencing. 

The court does not credit the petitioner's testimony at the

evidentiary hearing (May 24, 2007) on this issue. As the

record of that hearing reflects, the petitioner has been in

this country for 28 years and has received a BA and two

master's degrees from the University of Lowell (one in

mathematics and the other in business administration). His

classes were taught in English. After graduating he ran

several businesses. While at times during the course of the

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various proceedings in this court he has claimed not to

understand English, he has readily spoken and testified in

English on a regular basis and has, based on the court's

observations, understood what has been taking place. When

he did not understand a word or a question to his

satisfaction, he has had no problem saying so.

The court finds that the petitioner, after having been

thoroughly informed and advised by his counsel#2, fully

understood the role enhancement issue and the risks and

benefits of pursuing his objection, and that he knowingly,

voluntarily and intelligently waived his objection and

agreed to a 120-month sentence. His testimony to the

contrary is not credible and his claims of ignorance and

confusion are feigned and are attempts to obfuscate the

matter.

2. Appeal

In his first § 2255 petition, the petitioner claimed

his counsel #1 did not appeal after having been directed to

do so. This is a significant fact because it demonstrates

that as a result of what transpired during the course of

resolving the first petition, the petitioner was very much

aware of his right to appeal a sentence. In the first §

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2255 proceeding, there was an evidentiary hearing on that

issue and his first counsel #1 was questioned about it by

his second counsel #2 and government counsel in the presence

of the petitioner. In light of what transpired during the

first § 2255 proceeding, the court finds that the petitioner

was well aware of his right to appeal. Furthermore, the

record reflects, the petitioner was given notice of his

right to appeal orally by the court both after his

sentencing and resentencing.

Following resentencing, counsel #2 met with the

petitioner. The discussion involved religion, math and how

much time he had left to serve. Counsel did not discuss an

appeal and the petitioner did not ask him to appeal and did

not express any dissatisfaction with the sentence. Counsel

#2 knew the petitioner was aware of his appeal right because

the court had informed him twice orally about it and it was

one of the issues raised in the first § 2255 petition

involving his first counsel #1. Counsel #2 noted in his

closing file memo that the issue of appeal did not arise in

the post resentencing discussion with the petitioner. The

petitioner did not subsequently write or call counsel #2 to

say he wanted an appeal.

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The court credits the testimony of counsel #2 on this

issue and does not credit the petitioner's testimony. The

court finds that the petitioner knew of his right to appeal

the sentence, that the appeal had to be taken within 10

days, that he did not ask counsel #2 to file an appeal, that

counsel #2 did not discuss appeal with the petitioner after

the resentencing, and that the petitioner did not contact

counsel #2 or the court at any time to request an appeal.

In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the

United States Supreme Court rejected a bright-line rule that

counsel must file an appeal unless a defendant gives

instructions to the contrary. The court stated:

We instead hold that counsel has a

constitutionally imposed duty to consult with

the defendant about an appeal when there is

reason to think either (1) that a rational

defendant would want to appeal (for example,

because there are nonfrivolous grounds for

appeal), or (2) that this particular

defendant reasonably demonstrated to counsel

that he was interested in appealing. In

making this determination, courts must take

into account all the information counsel knew

or should have known. [Strickland v.

Washington, 460 U.S. 668, at 690.] (focusing

on the totality of the circumstances).

528 U.S. at 480.

Taking into account all of the information to which counsel #2

was privy as a result of his representation of the petitioner

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from the first § 2255 petition through the resentencing, the

court finds that counsel #2 did not have a constitutionally

imposed duty to consult with the petitioner about an appeal

because no rational defendant would want to appeal, there being

no nonfrivolous grounds for an appeal, and the petitioner did not

in any way indicate to counsel that he was interested in taking

an appeal. The court further finds that the petitioner knowingly

and voluntarily gave up his right to appeal.

Conclusion

Considering all of the circumstances in this case, the court

rules that counsel #2 provided the petitioner with representation

that far exceeded any objective standard of reasonableness. 

Strickland v. Washington, 460 U.S. 668 (1984).

Petition dismissed.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

July 13, 2007

cc: Sandra F. Bloomenthal, Esquire

Aixa Maldonado-Quinones, Esquire

Robert J. Veiga, Esquire

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