UNITED STATES OF AMERICA, Plaintiff/Respondent.
MANUAL LOPEZ VILLEDA, Defendant/§ 2255 Movant. Criminal Action No. H-10-554
MEMORANDUM AND RECOMMENDATION
FRANCES H. STACY, Magistrate Judge.
Before the Magistrate Judge in this proceeding under 28 U.S.C. § 2255, is the United States' Response and Motion to Dismiss (Document Nos. 49 & 50) Manuel Lopez Villeda's § 2255 Motion to Vacate, Set Aside or Correct Sentence (Document No. 40). Having considered the Government's Response and Motion to Dismiss, Villeda's § 2255 Motion, the affidavit of Villeda's counsel (Document No. 46), the contents of which Villeda has not directly contested, the record of the proceedings before the District Court in the underlying criminal case and on appeal, and the applicable law, the Magistrate Judge RECOMMENDS, for the reasons set forth below, that the Government's Motion to Dismiss be GRANTED, that Villeda's § 2255 Motions to Vacate, Set Aside or Correct Sentence be DENIED, and that this § 2255 proceeding be DISMISSED with prejudice.
I. Procedural History
Movant Manuel Lopez Villeda ("Villeda"), who is currently in the custody of the United States Bureau of Prisons, is seeking federal habeas corpus relief under 28 U.S.C. § 2255. This is Villeda's first attempt at relief under § 2255.
On August 11, 2010, Villeda charged by Indictment with illegal re-entry into the United States following deportation, in violation of 8 U.S.C. § 1326(a), (b)(1) (Document No. 1). On October 1, 2010, Villeda pled guilty without a plea agreement. (Document No. 15). A presentence investigation report (PSR) was then prepared, to which no objections were filed. See Statements of No Objections (Document Nos. 17 & 20). On January 7, 2011, Villeda was sentenced to 54 months confinement, to be followed by a three year term of supervised release. (Document No. 23). Judgment was entered on January 11, 2011. (Document No. 25).
Villeda appealed, but his appeal was dismissed on February 17, 2012, as frivolous, based on appellate counsel's Anders brief. (Document No. 39). This § 2255 proceeding, filed on or about May 20, 2013, followed. (Document No. 40). The Government has filed a Response and a Motion to Dismiss, to which Villeda has not, as of this date, filed a response in opposition. In addition, the record has been expanded to allow for consideration of the affidavit of Villeda's trial counsel (Document Nos. 45 & 46). Although Villeda was given twenty-one days to admit or deny the correctness of counsel's affidavit, he has not, to this date, done so.
Villeda raises six ineffectiveness claims in his § 2255 motion:
1. that trial counsel was ineffective for inducing him to plead guilty with promises of a lenient 24 month sentence;
2. that trial counsel was ineffective for failing to properly challenge the aggravated felony enhancement under § 2L1.2(b)(1)(B) of the United States Sentencing Guidelines;
3. that appellate counsel was ineffective for failing to challenge the imposition of the aggravated felony enhancement under § 2L1.2(b)(1)(B) of the Sentencing Guidelines;
4. that trial counsel was ineffective for failing to object to the District Court's failure to state in open court the reasons for the sentence imposed, as required by 18 U.S.C. § 3553;
5. that appellate counsel was ineffective for failing to complain, on appeal, about the District Court's failure to state in open court the reasons for the sentence imposed; and
6. that appellate counsel was ineffective for failing to provide Villeda with the court record so that Villeda could respond to appellate counsel's Anders brief.
In its Response and Motion to Dismiss, the Government argues that no relief is available on any of Villeda's ineffectiveness claims.
Claims of ineffective assistance of trial counsel are generally measured by the standards of Strickland v. Washington, 466 U.S. 668 (1984). To be entitled to relief on an ineffective assistance of counsel claim, a petitioner must be able to show that his counsel was deficient and that the deficiency prejudiced him to the extent that a fair trial could not be had. Id. at 687. Deficiency is judged by an objective reasonableness standard, with great deference given to counsel and a presumption that the disputed conduct is reasonable. Id. at 687-689. The prejudice element requires a 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." Id. at 694. A petitioner has the burden to prove both the deficiency and the prejudice prongs in order to be entitled to relief. United States v. Chavez, 193 F.3d 375, 378 (5th Cir. 1999).
Under Strickland's deficient performance prong, judicial scrutiny of counsel's performance is highly deferential and a strong presumption is made that "trial counsel rendered adequate assistance and that the challenged conduct was the product of reasoned trial strategy." Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992) (citing Strickland ), cert. denied, 509 U.S. 921 (1993). Moreover, the reasonableness of the challenged conduct is determined by viewing the circumstances at the time of that conduct, not in hindsight. Strickland, 466 U.S. at 690-691. Under Strickland's prejudice prong of Strickland, a petitioner must be able to establish that absent his counsel's deficient performance the result of his trial would have been different, "and that counsel's errors were so serious that they rendered the proceedings unfair or the result unreliable." Chavez, 193 F.3d at 378. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691.
In a guilty plea context, where trial counsel's ineffectiveness is claimed to have resulted in an unknowing and involuntary guilty plea, the two part Strickland test is applied somewhat differently. In Hill v. Lockhart, 474 U.S. 52, 58-59 (1985), the Supreme Court held that challenges to guilty pleas on ineffective assistance of counsel grounds warrant relief only if it can be shown that counsel's representation fell below an objective standard of reasonableness, and that, but for counsel's errors, the defendant would have forgone a guilty plea and would have insisted upon a trial. Mangum v. Hargett, 67 F.3d 80, 84 (5th Cir. 1995) ("In the context of a guilty plea, a defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial'"), cert. denied, 516 U.S. 1133 (1996); Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994) ("[I]n a guilty plea scenario, a petitioner must prove not only that his attorney actually erred, but also that he would not have pled guilty but for the error"), cert. denied, 514 U.S. 1071 (1995).
In the appellate context, ineffectiveness claims are generally assessed under the same two part Strickland deficiency and prejudice standard as claims of ineffective assistance of trial counsel. Williams v. Collins, 16 F.3d 626, 635 (5th Cir.), cert. denied, 512 U.S. 1289 (1994). But, with respect to Strickland's deficient performance prong, "effective assistance of counsel does not mean counsel who will raise every nonfrivolous ground of appeal available." Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998), cert. denied, 525 U.S. 1174 (1999); see also Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.) ("The Constitution does not require appellate counsel to raise every nonfrivolous ground that might be pressed on appeal."), cert. denied, 493 U.S. 970 (1989). Instead, "[a]ppellate counsel is obligated to only raise and brief those issues that are believed to have the best chance of success, " Rose v. Johnson, 141 F.Supp.2d 661, 704-705 (S.D. Tex. 2001)., for "[i]t is not only reasonable but effective for counsel on appeal to winnow out weaker arguments and focus on a few key issues." Mayo v. Lynaugh, 882 F.2d 134, 139 (5th Cir. 1989), modified on other grounds, 893 F.2d 683 (5th Cir. 1990), cert. denied, 502 U.S. 898 (1991). "[O]nly when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1985) (cited with approval in Smith v. Robbins, 528 U.S. 259, 288 (2000)). As for Strickland's prejudice prong, prejudice is established in an appellate context if it is shown "that the appeal would have had, with reasonable probability, a different outcome if the attorney adequately addressed the issue" and "that the attorney's deficient performance led to a fundamentally unfair and unreliable result." United States v. Dovalina, 262 F.3d 472, 474-75 (5th Cir. 2001).
A. Guilty Plea Claim
In his first claim, Villeda maintains that he wanted to challenge the illegal re-entry charge at trial, but his trial counsel, J.A. Salinas, convinced him to plead guilty with representations "that he would receive no more than 24 months in prison." § 2255 Motion (Document No. 40) at 11. Villeda also states in an Declaration he filed and attached to his § 2255 Motion that "acting on Mr. Salinas assurances of a 24 month sentence, I changed my plea to guilty." (Document No. 40-1 at 3).
Against Villeda's allegations and affidavit statements is the affidavit of Villeda's trial counsel, J.A. Salinas, who states: "Mr. Lopez Villeda knowingly and voluntarily decided to enter a guilty plea after numerous discussions concerning his options of entering a plea versus going to trial and the sentencing guidelines. I did not assure Mr. Lopez Villeda of a 24 month sentence." Affidavit of J.A. Salinas (Document No. 46) at 4. Villeda has not, to this date, admitted or denied the correctness of Salinas's affidavit. In addition, Villeda has not offered any proof that his statements on the record at his Rearraignment as to the knowing and voluntary nature of his guilty plea were not true.
At his Rearrignment, Villeda was questioned by the District Court, at length, about his understanding of the charges, the rights he would be giving up by pleading guilty, and the consequences associated with his guilty plea, including his sentencing exposure:
THE COURT: Is there any reason that you can think of why you would not be able to understand what is happening here today?
THE DEFENDANT: No.
THE COURT: And have you been able to confer with your lawyer again this morning before this hearing began?
THE DEFENDANT: No.
THE COURT: Would you like to have any further discussion with him now before we proceed further?
THE DEFENDANT: No. It's fine. I talked to him about two days ago.
THE COURT: Okay. Now, have you received a copy of the indictment pending against you, that is, the written charge filed against you in this case?
THE DEFENDANT: Yes.
THE COURT: And has it been read to you ...