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Estrada-Carrizales v. United States

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

March 6, 2018

JOSE ESTRADA-CARRIZALES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [1]

          Ignacio Torteya, III, United States Magistrate Judge

         Before 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. 25.[2] 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 appealability.

         I. Jurisdiction

         This Court has jurisdiction over Estrada-Carrizales's Motion pursuant to 28 U.S.C. § 1331 and § 2255.

         II. Background and Procedural History

         On 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.[3] 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.

         Estrada-Carrizales 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.

         III. Legal Standards

         A. 28 U.S.C. § 2255.

         Pursuant 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).

         B. Ineffective Assistance of Counsel.

         The “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.

         In 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 691.

         Because 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).

         IV. Discussion

         Estrada-Carrizales 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 ...


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