United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
HONORABLE LEE YEAKEL, UNITED STATES DISTRICT JUDGE.
the Court are Olegario Hernandez Astudillo's Motion to
Vacate Under 28 U.S.C. § 2255 (Dkt. No. 218); and the
Government's Response (Dkt. No. 211). The undersigned
submits this Report and Recommendation pursuant to 28 U.S.C.
§ 636(b) and Rule 1 of Appendix C of the Local Court
Rules of the United States District Court for the Western
District of Texas.
August 18, 2015, Movant Olegario Hernandez
Astudillo(“Astudillo”) was charged, along with
five other defendants, with three counts in a five-count
indictment. (Dkt. No. 18). On September 8, 2015, Astudillo entered
a plea of guilty to a Superseding Information charging him
with conspiracy to possess with intent to distribute 100
grams or more of heroin and 50 grams or more of
methamphetamine, in violation of 21 U.S.C. § 846. (Dkt.
No. 55). On November 13, 2015, the District Court sentenced
Astudillo to 210 months of imprisonment, followed by five
years of supervised release, forfeiture of two firearms and a
$100 special assessment. (Dkt. No. 131). The remaining counts
were dismissed on the Government's motion. (Dkt. No.
December 4, 2015, this Court granted Astudillo's trial
counsel's motion to withdraw and appointed new counsel to
represent Astudillo on appeal. On August 9, 2016, the Court
of Appeals for the Fifth Circuit accepted the appellate
counsel's Anders brief, and granted his motion
for leave to withdraw. The court also denied Astudillo's
motion for appointment of new counsel and dismissed the
has now filed this motion under 28 U.S.C. § 2255,
arguing that he was denied the effective assistance of
counsel because his trial attorney (1) induced him to
unknowingly enter into an involuntary plea agreement; (2)
failed to properly inform him of the accurate sentencing
range under the plea agreement; (3) failed to effectively
negotiate the plea agreement; (4) failed to call witnesses at
the sentencing; (5) failed to retain an expert witness; and
(6) failed to investigate the case and prepare for the
STANDARD OF REVIEW
§ 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; or (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).
prevail on an ineffective assistance of counsel claim, a
petitioner must show that his counsel's performance was
deficient and that the deficiency prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Counsel's performance is deficient if it falls below an
objective standard of reasonableness. Id. A
court's review of counsel's performance must be
highly deferential, with a strong presumption that the
performance was reasonable. Id. at 689; Little
v. Johnson, 162 F.3d 855, 860 (5th Cir. 1998). 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).
Moreover, “[a] fair assessment of attorney performance
requires every effort to be made to eliminate the distorting
effects of hindsight.” Strickland, 466 U.S. at
demonstrate the prejudice prong, a petitioner 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. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. “However, the
mere possibility of a different outcome is not sufficient to
prevail on the prejudice prong. Rather, the defendant must
demonstrate that the prejudice rendered sentencing
‘fundamentally unfair or unreliable.'”
Crane, 178 F.3d at 312-313 (quoting Ransom v.
Johnson, 126 F.3d 716, 721 (5th Cir. 1997)).
noted, Astudillo argues that his attorney rendered
ineffective assistance of counsel in six ways. As set forth
below, Astudillo has failed to meet either prong of the
Strickland test on any of these claims, and thus has
not established that his attorney rendered ineffective
Voluntariness of the Plea
Astudillo contends that he unknowingly entered into a plea
agreement due to his inability to speak or read English and
his limited education, and thus his guilty plea was
involuntary. He alleges that he relied on a translator for
all communications with his attorney and that his attorney
did not explain the terms of the agreement. However, in a
sworn affidavit his attorney states that he is fluent in
Spanish and never utilized a translator when communicating
with Astudillo. Additionally, the attorney maintains he
translated all legal documents and explained them fully to
Astudillo on no less than 15 occasions where he met with
Astudillo. (Dkt. No. 221-1).
more importantly, the transcript of the guilty plea hearing
reflects that, under oath, Astudillo testified to the
complete opposite of these assertions in his 2255 motion:
THE COURT: Now, with regard to the plea agreement, your
agreement is set out in writing. It's been signed by you
and your attorney and by the government's attorney.
Before you signed this, did you meet with Mr. Martinez and
discuss the agreement with him?
THE COURT: Do you read ...