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United States v. Velasquez

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

April 4, 2019

United States of America
v.
Juanita Eva Velasquez

          MEMORANDUM OPINION AND ORDER

          Gray H. Miller Senior United States District Judge.

         Defendant Juanita Eva Velasquez, proceeding pro se, filed a motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255. (Docket Entry No. 147.) The Government filed a motion for summary judgment (Docket Entry No. 155), to which Defendant filed a response (Docket Entry No. 156).

         Having reviewed the section 2255 motion, the Government's motion for summary judgment, the response, the record, and the applicable law, the Court GRANTS the motion for summary judgment and DISMISSES the section 2255 motion for the reasons that follow.

         Background and Claims

         Defendant pleaded guilty pursuant to a written plea agreement to conspiracy to possess with intent to distribute over 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. (Docket Entry No. 69.) The Court sentenced her on June 30, 2015, to 262 months' imprisonment. (Docket Entries No. 119; 129, pp. 24-26). Defendant filed a direct appeal, but the Fifth Circuit Court of Appeals dismissed the appeal pursuant to the waiver of appeal provision in the written plea agreement. (Docket Entry No. 142.)

         Defendant raises the following grounds for habeas relief under section 2255:

1. Counsel was ineffective in failing to move for downward departure based on Defendant's assistance.
2. The Court denied Defendant due process by accepting her plea without supporting facts.
3. The Government committed prosecutorial misconduct by delaying sentencing and misleading Defendant into believing she was receiving a downward departure.
4. Defendant is entitled to relief under Johnson v. United States and Welch v. United States in light of an unconstitutional residual clause.
5. Defendant's sentence violates her protections against cruel and unusual punishment.

         The Government argues that these claims are barred by the collateral review waiver provision in the written plea agreement and/or are without merit.

         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). Nevertheless, 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).

         Written Waiver Provision

         In her written plea agreement executed and filed in this case, Defendant agreed to the following provisions:

Defendant is aware that Title 28, United States Code, section 1291, and Title 18, United States Code, section 3742, afford a defendant the right to appeal the conviction and sentence imposed. Defendant is also aware that Title 28, United States Code, section 2255, affords the right to contest or "collaterally attack" the conviction and sentence after the judgment of conviction and sentence has become final. Defendant knowingly and voluntarily waives the right to appeal or "collaterally attack" the conviction and sentence, except that Defendant does not waive the right to raise a claim of ineffective assistance of counsel on direct appeal, if otherwise permitted, or on collateral review in a motion under Title 28, United States Code, section 2255. In the event Defendant files a notice of appeal following the imposition of the sentence or later collaterally attacks his conviction or sentence, the United States will assert its rights under this agreement and seek specific performance of these waivers.

(Docket Entry No. 69, pp. 5-6.)

         During the plea hearing, the Court inquired into the voluntariness of Defendant's written plea agreement:

THE COURT: Counsel, I understand that we do have a written plea agreement in this case?
MR. JONES: Yes, Your Honor.
THE COURT: All right. And this is being offered pursuant to Rule 11(c)(1)(A) and (B) of the Federal Rules of Criminal Procedure, correct?
MR. JONES: Yes, Your Honor.
THE COURT: All right. Mr. Jones, would you please summarize the essential terms of the plea agreement for the record.
MR. JONES: Yes, Your Honor. In exchange for the defendant's plea of guilty to Count 1, as well as the appellate and collateral attack waivers contained in the plea agreement, the United States agrees to recommend at the time of sentencing, to dismiss any remaining counts of the indictment at the time of sentencing that are pending against the defendant and to recommend full acceptance of responsibility, the full three points should she continue to accept responsibility as contemplated by the Sentencing Guidelines. And it does carry -
THE COURT: 5K?
MR. JONES: - the potential for cooperation. That's not a term of the plea agreement.
THE COURT: It's not?
MR. JONES: It's outlined as this is if you do want to cooperate and seek a reduction, these are the terms that you would need to comply with.
THE COURT: All right.
MR. JONES: But there's no up-front ...

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