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Astudillo v. United States

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

June 18, 2018




         Before 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.


         On 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).[1] 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. 126).

         On 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 appeal.

         Astudillo 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 sentencing.


         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; 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).

         To 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 689.

         To 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)).

         III. ANALYSIS

         As 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 assistance.

         A. Voluntariness of the Plea

         First, 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).

         But, 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 ...

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