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United States v. Vasquez

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

May 16, 2018

United States of America
v.
Maria Vasquez

          MEMORANDUM OPINION AND ORDER

          Gray H. Miller United States District Judge

          Defendant Maria Vasquez, proceeding pro se, filed a motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255. (Docket Entry No. 97). The Government filed a motion for judgment on the record (Docket Entry No. 104), to which Defendant filed a response (Docket Entry No. 105).

         Having reviewed the section 2255 motion, the motion for judgment on the record, the record, and the applicable law, the Court GRANTS the motion for judgment on the record and DENIES the motion for relief under section 2255 for the reasons that follow.

         Background and Claims

         Defendant pleaded guilty to conspiracy to commit theft of public money pursuant tol8U.S.C. §371, and was sentenced to serve a 57-month term of imprisonment, to be followed by a three-year term of supervised release. The Court also ordered Defendant to pay $587, 288.18 in restitution to Medicare, Medicaid, and their affiliates. The conviction was affirmed on appeal. See United States v. Vasquez, 672 Fed.Appx. 401 (5th Cir. 2016).

         Defendant claims that trial counsel was ineffective in the following two particulars:

1. Trial counsel failed to challenge the Court's finding that a sufficient factual basis supported her guilty plea, and failed to negotiate "a more sufficient plea" or "secure a more adequate defense."
2. Trial counsel failed to challenge the Government's use of respondeat superior to hold her liable for her employees' unlawful actions.

(Docket Entry No. 98, p. 7.) The Government asserts that these claims have no support in the record and that section 2255 relief should be denied.

         Legal Standards

         Generally, there are four grounds upon which a defendant may move to vacate, set aside, or correct his sentence pursuant to section 2255: (1) the imposition of a sentence in violation of the Constitution or the laws of the United States; (2) a lack of jurisdiction of the district court that imposed the sentence; (3) the imposition of a sentence in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). Section 2255 is an extraordinary measure, and cannot be used for errors that are not constitutional or jurisdictional if those errors could have been raised on direct appeal. United States v. Stumpf, 900 F.2d 842, 845 (5th Cir. 1990). If the error is not of constitutional or jurisdictional magnitude, the movant must show 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).

         The pleadings of a pro se prisoner litigant are reviewed under a less stringent standard than those drafted by an attorney, and are provided a liberal construction. Haines v. Kerner, 404 U.S. 519 (1972). Nevertfieless, a pro se litigant is still required to provide sufficient facts to support his claims, and "mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue." United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993). Accordingly, "[a]bsent evidence in the record, a court cannot consider a habeas petitioner's bald assertion on a critical issue in his pro se petition ... to be of probative evidentiary value." Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).

         Ineffective Assistance of Trial Counsel

         The United States Supreme Court's decision in Strickland v. Washington provides the familiar two-pronged test for establishing a claim of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. 668, 687 (1984). A court need not address both components of the inquiry if the defendant makes an insufficient showing on one. Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997) ("Failure to prove either deficient performance or actual prejudice is fatal to an ineffective assistance claim.").

         A counsel's performance is strongly presumed to fall within the wide range of reasonable professional assistance. Premo v. Moore, 562 U.S. 115, 121 (2011). To overcome that presumption, a habeas petitioner must "show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Id. at 121-22 (internal quotations omitted). The standard for judging counsel's representation is a deferential one. "The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms, ' not whether it deviated from best practices or most common custom." Id.

         Defendant contends that trial counsel was ineffective in the following instances.

         Factual Basis to Support Plea

         Defendant asserts that trial counsel should have challenged the factual basis for her guilty plea, as there was insufficient evidence to support the plea. Her argument is groundless.

         Prior to accepting Defendant's guilty plea, the Court advised Defendant on the record of the following:

THE COURT: Now, in order to prove that and for you to be convicted, the government has to prove the following three things with respect to the conspiracy charge. These things have to be proved beyond a reasonable doubt by the government.
No. 1, that you and at least one other person made an agreement to commit the crime of theft as charged in the superseding indictment.
Secondly, that you knew the unlawful purpose of the agreement and that you joined in it willfully, that is, with the intent to further the unlawful purpose. And No. 3, that one of the conspirators during the existence of this conspiracy knowingly committed at least one of the overt acts described in the ...

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