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United States v. Ramirez

United States District Court, S.D. Texas, Houston Division

June 28, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
Miguel Suarez Ramirez, Defendant-Movant. Crim. No.4:11-cr-01-6

          MEMORANDUM AND RECOMMENDATION

          FRANCES H. STACY, UNITED STATES MAGISTRATE JUDGE

         Before the Magistrate Judge in this federal habeas corpus proceeding pursuant to 28 U.S.C. § 2255 is Movant Miguel S. Ramirez's § 2255 Motion to Vacate, Set Aside or Correct Sentence (Document No. 563)[1], Amended § 2255 Motion to Vacate, Set Aside or Correct Sentence (Document No. 598), Amended or Supplemented § 2255 Motion to Vacate, Set Aside or Correct Sentence (Document No. 601), and the United States' Answer and Motion to Dismiss Movant's § 2255 Motion (Document No. 597). After reviewing Movant's § 2255 Motion and Amended § 2255 Motions, the Government's Answer and Motion to Dismiss, the record of the proceedings before the District Court in the underlying criminal case and on appeal, and the applicable case law, the Magistrate Judge RECOMMENDS, for the reasons set forth below, that Movant Miguel S. Ramirez's § 2255 Motion to Vacate, Set Aside, or Correct Sentence (Document No. 563) and Amended § 2255 Motions to Vacate, Set Aside, or Correct Sentence (Documents No. 598 and 601) be DENIED, and the United States' Motion to Dismiss (Document No. 597) be GRANTED.

         I. Procedural History

         Movant Miguel S. Ramirez ("Ramirez"), 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 Ramirez's first attempt at § 2255 relief.

         On January 3, 2011, Ramirez was charged by Superseding Indictment with possession with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count 1S), aiding and abetting attempted possession with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2 (Count 2S), conspiracy to use and carry a firearm during and in relation to a drug trafficking crime, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, as set forth in Counts One and Two, and to possess said firearm in furtherance of such crimes, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(o) (Count 3S), aiding and abetting others in knowingly and intentionally using and carrying a firearm, during and in relation to a drug trafficking crime, that is, violations of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, as set forth in Counts One and Two, and did possess said firearm in furtherance of such crimes, in violation of 18 U.S.C. § 924(c)(1)(A) and § 2 (Count 4S), and with knowingly possessing, in and affecting commerce, a firearm which had been shipped in interstate and foreign commerce, after having been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1) (Count 5S). (Document No. 142). On September 7, 2012, Ramirez pleaded guilty, pursuant to a written Rule 11(c)(1)(A) & (B) Plea Agreement, to Counts IS and 4S of the Superseding Indictment. (Document No. 178, Transcript of Rearraignment Hearing, Document No. 580).

         At Ramirez's September 7, 2012, Rearraignment, the terms of the written Plea Agreement were summarized as follows by the Government:

Mr. Donnelly: Certainly, Your Honor. The defendant will plead guilty to Counts 1 and 4 of the indictment and persist in that plea through sentencing, at which point the United States will move to dismiss the remaining counts of the indictment.... At the time of sentencing, the United States agrees not to oppose and joins in the recommendation for the full three points for acceptance of responsibility. The defendant agrees to waive his appeal rights of his conviction and sentence, both directly and collaterally. (Document 580, p. 4-5).

         The written Plea Agreement specifically refers to relief under § 2255 and expressly states that Ramirez waives his right to seek § 2255 relief. (Document No. 178, p. 7 ¶ 10). The signed written Plea Agreement makes clear that Ramirez is pleading guilty freely and voluntarily (Document No.178, p. 13 ¶ 22), and contains an Addendum, also signed by Ramirez, that states that he has "read and carefully reviewed every part of this plea agreement with my attorney, I understand this agreement and I voluntarily agree to its terms." (Document No. 178, p. 15). Moreover, the transcript of his Rearraignment hearing confirms that Ramirez understood the charges against him, the rights he would give up if he pleaded guilty, the possible penalties, the sentencing process, that he had discussed the written plea agreement and that he understood the terms, and that he was waiving both his right to appeal and to collateral review. (Document No. 580, p. 5-15). The record further reflects that the Government summarized the facts that it was prepared to prove if the case proceeded to trial. (Document No. 580, p. 17-19). The Prosecutor stated:

If this case went to trial, the United States would prove through witnesses, beyond a reasonable doubt, that sometime between October 5th, 2010, through December 2nd, 2010, all while in the Southern District of Texas, the defendant entered into a conspiracy to commit armed robbery of a drug dealer's stash house for the purpose of obtaining multiple kilograms of cocaine.
On October 26th, 2010, and individual known as TiTi, Carlos Manuel Boria, Edwin Rivera-Otero, Eric Alberto Lewis, Marvin Cesar Carabali-Diaz, and Iris Yamileth Bonilla-Reyes, co-conspirators herein, met with an undercover agent from the Bureau of Alcohol, Tobacco, Firearms, and Explosives. The undercover posed as a disgruntled drug courier who regularly picked up loads of cocaine from various stash houses. The undercover advised all co-conspirators that there were generally between 20 to 30 kilograms of cocaine in the stash house and that the drugs would be protected by two individuals, one of whom would be armed. The undercover noted the amount of drugs involved, the armed guards, and gave the co-conspirators an opportunity to back out if they did not want to proceed.
Boria took the undercover to a car occupied by Bonilla, where she handed Boria a bag containing police vests so the undercover could see. Boria indicated that the vehicle with the weapons was on the way, but there seemed to be some confusion. Shortly thereafter, the undercover explained he could not wait any longer and that he had to pick up his load of drugs.
On December 2nd, 2010, defendant, along with co-conspirators and Francisco Javier Rodriguez, met with the undercover for the purpose of conducting the armed robbery of cocaine.
Defendant arrived in a Dodge Journey, in which police located a Hi-Point .40 caliber pistol, a Kimber Arms .45 caliber pistol, zip-ties, and a police hat. Five firearms to be used for the robbery were collectively brought to the location by the defendant, co-conspirators, and Rodriguez. In addition to those found in the Dodge Journey, police recovered a Rossi .357 caliber revolver, a Charter Arms .38 caliber revolver, and Beretta Model 92, 9mm caliber pistol.
The defendant was dressed in police tactical vest, a badge, black pants, and black boots. All others involved, with the exception of Lewis and Bonilla, were dressed in some sort of clothing identifying themselves as police officers. Lewis and ...

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