United States District Court, S.D. Texas, Brownsville Division
MAGISTRATE JUDGE'S REPORT AND
Ignacio Torteya, III, United States Magistrate Judge
the Court is Petitioner Jose Estrada-Carrizales's pro se
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal (hereinafter,
Estrada-Carrizales's “§ 2255 Motion” or
“Motion”). Dkt. No. 1. The Court is also in
receipt of the Government's response. Dkt. No.
For the reasons stated herein, it is recommended that
Estrada-Carrizales's § 2255 Motion be
DISMISSED. Additionally, it is recommended
that the Court decline to issue a certificate of
Court has jurisdiction over Estrada-Carrizales's Motion
pursuant to 28 U.S.C. § 1331 and § 2255.
Background and Procedural History
November 5, 2015, Estrada-Carrizales pleaded guilty to being
an alien unlawfully found in the United States after
deportation, having previously been convicted of an
aggravated felony, in violation of 8 U.S.C. §§
1326(a) and 1326(b)(1). United States of America v. Jose
Estrada-Carrizales, No. 1:15-cr-0854-1, Cr. Dkt. No. 24
at 1. On February 10, 2016, United States
District Judge Rolando Olvera sentenced Estrada-Carrizales to
48 months of imprisonment and a three-year term of supervised
release. Id. at 1-3. Estrada-Carrizales filed a
notice of appeal on February 12, 2016. Cr. Dkt. No. 21.
filed the instant § 2255 Motion on October 4, 2016. Dkt.
No. 1. Because Estrada-Carrizales's appeal was still
pending before the United States Court of Appeals for the
Fifth Circuit, the Court ordered Estrada-Carrizales to show
cause as to why his Motion should not be dismissed for lack
of jurisdiction. Dkt. No. 6. On December 12, 2016, the
undersigned concluded that Estrada-Carrizales had not shown
why his § 2255 Motion should not be dismissed for lack
of jurisdiction, and recommended that the Motion be
dismissed. Dkt. No. 10. The Fifth Circuit subsequently
dismissed Estrada-Carrizales's appeal as frivolous on
January 4, 2017. Cr. Dkt. No. 33. With the judgment in
Estrada-Carrizales's criminal case now final, the Court
ordered the Government to respond to the claims raised in
Estrada-Carrizales's § 2255 Motion. Dkt. No. 15. The
Government complied on March 27, 2017. Dkt. No. 24.
Estrada-Carrizales responded on May 1, 2017. Dkt. No. 26.
Estrada-Carrizales's trial counsel, Hector Casas,
responded to the § 2255 Motion's claims of
ineffective assistance of counsel by affidavit on November 9,
2017. Dkt. No. 34. Estrada-Carrizales received a copy of the
affidavit on November 17, 2017. Dkt. No. 36.
28 U.S.C. § 2255.
to 28 U.S.C. § 2255, a defendant may move to vacate, set
aside or correct his sentence if (1) the sentence was imposed
in violation of the Constitution or the 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; or (4) the sentence is
otherwise subject to collateral attack. 28 U.S.C. §
2255(a). The nature of a § 2255 collateral challenge is
extremely limited, being reserved for instances of
constitutional or jurisdictional magnitude. United States
v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). If an error
is not of constitutional 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).
Ineffective Assistance of Counsel.
“Sixth Amendment guarantees a[ll] defendant[s] the
right to have counsel present at all ‘critical'
stages of the criminal proceedings” instituted against
them. Missouri v. Frye, 566 U.S. 134, 140 (2012)
(citing Montejo v. Louisiana, 556 U.S. 778, 786
(2009)). Critical stages include not only trial, but also
pretrial proceedings-including the plea-bargaining process.
Laffler v. Cooper, 566 U.S. 156, (2012); Padilla
v. Kentucky, 559 U.S. 356, 373 (2010); Hill v.
Lockhart, 474 U.S. 52, 57 (1985). Even though sentencing
does not concern the defendant's guilt or innocence,
ineffective assistance of counsel during a sentencing hearing
is also constitutionally impermissible. Laffler, 566
U.S. at 165.
Strickland v. Washington, the Supreme Court held
that in order to succeed on an ineffective assistance of
counsel claim, a defendant must show both: 1) that counsel
“made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment;” and 2) “the
deficient performance prejudiced the defense, ” and
shows “errors so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.” 466
U.S. 668, 687 (1984). Courts need not address both inquiries
if the defendant does not sufficiently support one prong, nor
must the court address the test in the same order.
Id. at 697. Under this standard, the defendant must
show that counsel's representation fell below an
objective standard of reasonableness under prevailing
professional norms. Id. at 687. As it is easy to
second-guess counsel's performance after a conviction or
adverse sentence, a fair assessment of performance requires
reconstructing the circumstances of counsel's conduct
from their perspective at the time rather than look towards
the “distorting effects of hindsight.”
Id. at 689. As such, counsel is strongly presumed to
have performed adequately, and made decisions using
reasonable professional judgment. Id. at 690.
Finally, the sufficiency of counsel's representation may
be determined, and indeed substantially influenced, by the
defendant's own statements and actions. Id. at
a convicted defendant must satisfy both prongs of the
Strickland test, a failure to establish either
deficient performance or actual prejudice under that test
will ordinarily make it unnecessary to examine the other
prong. Strickland, 466 U.S. at 700; Ransom v.
Johnson, 126 F.3d at 716, 721 (5th Cir. 1997);
United States v. Seyfert, 67 F.3d 544, 547 (5th Cir.
1995). Therefore, failure to establish that counsel's
alleged performance fell below an objective standard of
reasonableness renders moot the issue of prejudice. See
United States v. Hoskins, 910 F.2d 309, 311 (5th Cir.
1990); Thomas v. Lynaugh, 812 F.2d 225, 229-30 (5th
Cir. 1987). It is also generally unnecessary to consider
whether counsel's performance was deficient where there
is an insufficient showing of prejudice. See Black v.
Collins, 962 F.2d at 401; Martin v. McCotter,
796 F.2d 813, 821 (5th Cir. 1986).
argues that he is entitled to relief because (1) his sentence
was illegally enhanced via a “residual clause”
declared unconstitutionally vague by the Supreme Court in
Johnson v. United ...