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Lopez v. United States

United States District Court, Fifth Circuit

December 20, 2013




On this day, the Court considered Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the "Motion"), ECF No. 140.[1] By the Motion, Petitioner challenges his sentence on the ground that he received ineffective assistance of counsel. For the following reasons, the Court DENIES the Motion.


On July 14, 2010, a grand jury charged Petitioner, along with other co-defendants, in a two-count indictment alleging (1) conspiracy to import 1, 000 kilograms or more of a mixture or substance containing a detectable amount of marijuana in violation of 21 U.S.C. §§ 960(a)(1), 960(b)(1)(G), and 963; and (2) conspiracy to possess 1, 000 kilograms or more of a mixture or substance containing a detectable amount of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii), and 846. Indictment, ECF No. 19. Petitioner retained an attorney ("Trial Counsel") to represent him in the Case. See ECF No. 30. Petitioner entered an initial plea of not guilty on August 4, 2010. ECF No. 38.

On March 2, 2011, Petitioner pleaded guilty by agreement to an information (the "Information"), ECF No. 92. See Plea Agreement, ECF No. 94. Unlike the Indictment, the Information charged only a single count of conspiracy to possess a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846, and charged a reduced quantity of 100 kilograms or more of marijuana instead of 1, 000 kilograms. Information 1; Plea Agreement 1; Plea Hr'g Tr., Mar. 2, 2011, ECF No. 130. Although Petitioner agreed to plead guilty only to conspiracy to possess 100 kilograms of marijuana, Plea Agreement 1, the factual basis attached to the Plea Agreement (the "Factual Basis") stipulates that Petitioner conspired to possess with the intent to distribute a total of 1413.11 kilograms of marijuana. Id. at 10. The Plea Agreement contains the following provision: "By signing the Plea Agreement, the Defendant admits that the facts set out in the [Factual Basis] are true and correct, and specifically stipulates that the weight of the controlled substance(s) at issue is the weight stated in the [Factual Basis]." Id. at 6. Petitioner, along with Trial Counsel and the Assistant United States Attorney, duly signed the Plea Agreement and filed it with the Court. Id. at 7.

At Petitioner's March 2, 2011, plea hearing, Honorable United States Magistrate Judge Norbert J. Garney engaged in a colloquy with Petitioner and Trial Counsel to determine whether Petitioner voluntarily and knowingly decided to plead guilty to the charge in the Information. See Plea Hr'g Tr. 2-16. A Spanish language interpreter assisted Petitioner during this colloquy. See id. at 1. At the hearing, Petitioner affirmed to the Court that he had reviewed the Plea Agreement and understood and accepted the terms therein. See id. at 7-8. Petitioner further affirmed that the Factual Basis was "true and correct[.]" See id. at 14. Judge Garney advised Petitioner that, for pleading guilty to conspiracy to possess 100 kilograms or more of marijuana with intent to distribute, Petitioner faced a sentence between five and forty years in prison. See id. at 10. Petitioner affirmed that he understood that he could receive a sentence anywhere within this range. See id. at 9. Following this colloquy, Petitioner pleaded guilty to the charge in the Information, and Judge Garney accepted Petitioner's guilty plea. See id. at 15.

A United States Probation Officer prepared a presentence investigation report (the "PSR"), ECF No. 107, based on the United States Sentencing Guidelines, the Factual Basis, and other relevant information. The PSR provided that

in accordance with U.S.S.G. § 1B1.3, Relevant Conduct, Lopez is held accountable for a total of 1, 413.11 kilograms of marijuana he and his coconspirators jointly conspired to transport into and/or within the United States.... The U.S. Sentencing Commission guideline for a violation of 21 U.S.C. §§ 846 and 841(a)(1) is found in U.S.S.G. § 2D1.1(a)(5). For 1, 413.11 kilograms of marijuana, the Drug Quantity Table establishes a base offense level of 32.

PSR 12.

In accordance with this calculation, the United States Probation Officer calculated that Petitioner's Guideline Sentence was between 151 and 188 months. Id. at 18; accord ECF No. 107-1, at 1.

Trial Counsel, on Petitioner's behalf, filed an objection to the PSR, stating that "Defendant feels he should only be held responsible for 188.75 Kilos, " rather than the 1, 413.11 kilograms of marijuana described in the Factual Basis. ECF No. 107-4. The Government responded that the sentence calculated in the PSR was accurate. ECF Nos. 107-5; 108.

This Court held Petitioner's sentencing hearing in the Case on May 18, 2011. A Spanishlanguage interpreter assisted Petitioner at this hearing. See Sentencing Hr'g Tr. 2, May 18, 2011, ECF No. 129. At this hearing, Trial Counsel, on Petitioner's behalf, renewed his objection to the sentence range predicated on the 1, 413.11 kilograms of marijuana described in the Factual Basis. See id. at 3, 11-12. The Government reiterated its argument that the 151 to 188 month sentence range calculated in the PSR was appropriate. See id. at 6-9. The Court, based on a preponderance of the evidence, overruled Petitioner's objection. Id. at 13. Specifically, the Court overruled the objection on the basis of "all of the information, as well as the various eyewitnesses, the recordings, [and] the agents that were involved, " as well as its assessment of Petitioner's credibility. Id. at 13. The Court then, "based on the information provided, the circumstances of th[e] case, and [Petitioner's] particular circumstances, in keeping with the factors of [18 U.S.C.] § 3553(a), " sentenced Petitioner to 151 months of incarceration. Id. at 16-17.

On May 27, 2011, Trial Counsel moved to withdraw as Petitioner's attorney so that the Court could "appoint [Petitioner] an attorney to assist him in the process of appealing his Sentence." ECF No. 120, at 1. The Court granted Trial Counsel's motion on May 31, 2011. On June 6, 2011, the Court appointed another attorney ("Appellate Counsel") to represent Petitioner in his appeal.[2] See ECF No. 123; ECF No. 136, at 1.

On appeal, Appellate Counsel filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that Petitioner's appeal lacked merit. See ECF No. 139, at 3. Petitioner responded to Appellate Counsel's motion and Anders brief. See id. The Fifth Circuit "concur[ed] with [Appellate Counsel]'s assessment that the appeal presents no nonfrivolous issue for appellate review." See id. at 3-4. The Fifth Circuit accordingly excused Appellate Counsel from representing Petitioner and dismissed the appeal. See id. at 4.

Petitioner filed the Motion on February 11, 2013. The Motion is Petitioner's first motion pursuant to 28 U.S.C. § 2255 in the Case. The Government filed a response to the Motion (the "Response"), ECF No. 145, on April 23, 2013. Petitioner then filed a reply (the "Reply"), ECF No. 147, on May 10, 2013.


A. Standard

After a petitioner has been convicted and has exhausted or waived any right to appeal, a court is normally "entitled to presume that the defendant stands fairly and finally convicted." United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164 (1982)). Accordingly, "[r]elief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (quoting United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994)). Typically, before a court will grant relief pursuant to § 2255, the petitioner must establish that "(1) his sentence was imposed in violation of the Constitution or laws of the United States, (2) the sentencing court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack." United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).

Moreover, a collateral challenge to a conviction or sentence should not serve as a substitute for a direct appeal. Frady, 456 U.S. at 165; United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991). When raising issues of jurisdictional or constitutional magnitude for the first time in a motion seeking collateral relief, a petitioner must either: (1) demonstrate "cause" for not raising the issue on direct appeal and "actual prejudice" resulting from the error, or (2) show that he is "actually innocent" of the crime for which he was convicted. United States v. Torres, 163 F.3d 909, 911 (5th Cir. 1999). The cause and actual prejudice standard is "significantly more rigorous than even the plain error standard... applied on direct appeal." Gaudet, 81 F.3d at 589. If the petitioner does not meet either burden, then he is procedurally barred from attacking his conviction or sentence. United States v. Drobny, 955 F.2d 990, 994-95 (5th Cir. 1992). This procedural bar does not apply, however, to claims alleging ineffective assistance of counsel. See Massaro v. United States, 538 U.S. 500, 508 (2003).

The United States Constitution's Sixth Amendment guarantees an accused the right to the assistance of counsel for his defense in all criminal prosecutions. U.S. Const. amend. VI. Moreover, "the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). "[I]neffective assistance claims are ordinarily brought for the first time on collateral review because of the difficulty of compiling an adequate record by the time of direct appeal." Gaudet, 81 F.3d at 589 n.5. To obtain relief on an ineffective assistance of counsel claim, a petitioner must demonstrate both (1) that his "counsel's performance was deficient[, ]" and (2) that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (summarizing the Strickland standard of review). A failure to establish either prong of this test requires a court to find that counsel's performance was constitutionally effective. See Strickland, 466 U.S. at 687 ("Unless a defendant makes both showings, it cannot be said that the conviction or... sentence resulted from a breakdown in the adversary process that renders the result unreliable."); Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997) ("Failure to prove either deficient performance or actual prejudice is fatal to an ineffective assistance claim."); Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994) ("A court need not address both components of the inquiry if the defendant makes an insufficient showing on one.").

The test's performance prong centers on whether counsel's assistance was reasonable in light of all the circumstances at the time of counsel's conduct. See Strickland, 466 U.S. at 688 ("The proper measure of attorney performance remains simply reasonableness under prevailing professional norms."). In order to obtain relief, a petitioner must establish "that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. In assessing whether a particular counsel's performance was constitutionally deficient, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

A deficiency in counsel's performance, even if professionally unreasonable, does not necessarily equal ineffective assistance of counsel; the petitioner must also demonstrate actual prejudice. See id. at 691-92 ("The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."). The test's prejudice prong requires the petitioner to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

Because Petitioner appears pro se, the Motion is "entitled to a liberal construction that includes all reasonable inferences which can be drawn from" it. United States v. Peralta-Ramirez, Criminal No. H-04-0150-06, Civil Action No. H-07-4582, 2008 WL 4630369, at *2 (S.D. Tex. Oct. 16, 2008) (citing Haines v. Kerner, 404 U.S. 519, 521 (1972); United States v. Pena, 122 F.3d 3, 4 (5th Cir. 1997)). However, even a pro se litigant must provide sufficient facts in support of his or her claims; "mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue." United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993) (citing United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989)); accord Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).

B. Analysis

Petitioner challenges his sentence on two grounds. The first is that Trial Counsel and Appellate Counsel (collectively "Counsel") rendered ineffective assistance by failing to adequately challenge the length of Petitioner's sentence. Mot. 10-13; Reply 1-8. The second is that the Case was not conducted in accordance with the Speedy Trial Act, 18 U.S.C. §§ 3161-74, and that Counsel rendered ineffective assistance by failing to challenge Petitioner's sentence on this basis. Mot. 13-14. The Court also construes the Motion to raise an ineffective assistance of counsel claim ...

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