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Medina v. United States

United States District Court, W.D. Texas, Austin Division

November 6, 2017

NATIVIDAD MERCADO MEDINA, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          SAM SPARKS UNITED STATES DISTRICT JUDGE.

         BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Movant Natividad Mercado Medina (Mercado)'s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 [#226], Mercado's Supporting Brief [#227], the Government's Response [#236] in opposition, and Mercado's Reply [#240] in support. Having reviewed the file, the documents, and the governing law, the Court now enters the following opinion and orders.

         Background

         On January 19, 2016, Mercado was charged with conspiracy to commit mail fraud in violation 18 U.S.C. §§ 1341 and 1349. Indictment [#235]. OnFebruary2, 2016, Medina was arrested in Georgia and subsequently transferred to Austin. Mercado pled guilty on May 16, 2016. Findings of Fact [#117] at 1.

         The plea was entered before Magistrate Judge Andrew Austin. At the plea colloquy, both Mercado's counsel and an interpreter were present. May 16, 2016 Tr. [#231 ] at 1. In response to Judge Austin's inquiries, Mercado indicated she had met with her attorney about her case, she had spoken to her attorney about all important matters in her case, and she was satisfied with her attorney's representation. Id. at 6. Judge Austin also confirmed with Mercado the plea agreement had been translated into Spanish before she signed it. Id. at 7. Judge Austin verified Mercado understood the plea agreement was not binding on this Court and no one had promised Mercado a specific sentence. Id. at 13-14, 20-21. Finally, Judge Austin also asked Mercado if she understood her right to appeal her conviction or sentence was limited to a challenge based on ineffective assistance of counsel or prosecutorial misconduct. Id. at 11. Mercado answered she understood that limitation. Id. at 12.

         In a judgment entered on August 16, 2016, this Court sentenced Mercado to 121 months of imprisonment followed by three years of supervised release. See J. & Commitment [#175]. Mercado was also ordered to pay a $ 100 assessment. Id. At the sentencing, Mercado's counsel and an interpreter were both present. Aug. 12, 2016 Tr. [#232] at 1. The Court confirmed Mercado reviewed the probation department's presentence report (PSR) with her attorney and offered Mercado the change to speak to the Court about any matter. Id. at 24-25. Mercado took that opportunity to apologize to the Court and the Government. Id.

         As part of sentencing, the Government moved for a downward departure from the guideline range set by the Court, advocating for a 63-78 month sentence rather than a 121-151 month sentence. See Id. at 24, 27. While the Court ultimately denied the Government's motion for a downward departure, the Court considered the Government's reasons for seeking a departure and sentenced Mercado at the bottom of the guidelines to 121 months. Id. at 28. Finally, the Court informed Mercado she had 14 days to file a notice of appeal and provided Mercado with a letter confirming her right to appeal and the deadline. Id. at 32. No direct appeal was taken in this case.

         On June 7, 2017, Mercado placed her Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 in the prison mail system. Mot. Vacate [#226] at 13. In her motion and supporting brief, Mercado asks the Court to vacate her sentence, alleging she received ineffective assistance of counsel. Id. at 4-6, 13. The Government responded to Mercado's § 2255, and Mercado subsequently filed a reply. Resp. [#236]; Reply [#240]. The motion is now ripe for the Court's consideration.

         Analysis

         I. Legal Standard

         Under § 2255, four general grounds exist upon which a defendant may move to vacate, set aside, or correct his sentence: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the District Court was without jurisdiction to impose the sentence; (3) the sentence imposed was in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. The nature of a collateral challenge under § 2255 is extremely limited: "A defendant can challenge his conviction after is it presumed final only on issues of constitutional or jurisdictional magnitude ... and may not raise an issue for the first time on collateral review without showing both 'cause' for his procedural default, and 'actual prejudice' resulting from the error." United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). If the error is not of constitutional or jurisdictional magnitude, the movant must show that the error could not have been raised on direct appeal and would, if condoned, "result in a complete miscarriage of justice." United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994). A defendant's claim of ineffective assistance of counsel gives rise to a constitutional issue and is cognizable pursuant to § 2255. United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1996).

         To prevail on a claim of ineffective assistance of counsel, a movant must show that (1) his counsel's performance was deficient and (2) that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

         First, counsel's performance is deficient if it falls below an objective standard of reasonableness. Id. A court will not find ineffective assistance of counsel merely because it disagrees with counsel's trial strategy. Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999). A court's review of counsel's performance must be highly deferential, with a strong presumption that the performance was reasonable. Strickland, 466 U.S. at 689. Moreover, "[a] fair assessment of attorney performance requires every effort to be made to eliminate the distorting effects of hindsight." Id.

         Second, to demonstrate prejudice, a movant must show "a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional errors." Crane, 178 F.3d at 312. "However, the mere possibility of a different outcome is not sufficient to prevail on the prejudice prong." Id. at 312-13 (internal quotation marks omitted) (quoting Ransom v. Johnson,126 F.3d 716, 721 (5th Cir. 1997)). "A reasonable probability ...


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