United States District Court, E.D. Texas, Sherman Division
OSCAR O. BARRERA PINEDA, #18940-078
UNITED STATES OF AMERICA
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
se Movant Oscar Orlando Barrera Pineda filed a motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255, asserting violations concerning his
Eastern District of Texas, Sherman Division conviction. For
the reasons stated below, and after due consideration, the
Court will deny Movant’s motion.
October 19, 2012, a jury found Movant guilty of Count Two of
his indictment, manufacturing and distributing five kilograms
or more of cocaine, and intending and knowing that the
cocaine will be unlawfully imported into the United States,
in violation of 21 U.S.C. §§ 959, 960(b)(1). On
February 24, 2014, the District Court’s sentence of two
hundred ninety-two months’ imprisonment was entered.
The United States Court of Appeals for the Fifth Circuit
affirmed Movant’s conviction and sentence on January
28, 2016. United States v. Rojas, 812 F.3d 382, 416
(5th Cir. 2016). The Fifth Circuit held that, under the
protection principle, a country may enforce criminal laws
wherever, and against whomever, if the offense threatens the
country’s security and directly interferes with its
governmental operations. Id. at 391-93. On June 6,
2016, the Supreme Court denied Movant’s petition for
writ of certiorari.
instant motion was filed on August 19, 2016. Movant asserts
he is entitled to relief because the Court lacked
jurisdiction to try and sentence him on Count Two when the
United States violated the terms of the doctrine of
specialty and the extradition agreement with
Columbia. Movant also contends counsel was ineffective in
failing to raise the Court’s lack of jurisdiction,
violation of the doctrine of specialty, and defective
indictment. Movant asserts counsel was also ineffective for
failing to request a minor role adjustment. The Government
filed a response, claiming Movant is not entitled to relief,
to which Movant filed a reply. On June 1, 2018, the Court
reduced Movant’s sentence to two hundred thirty-five
months, pursuant to 18 U.S.C. § 3582(c)(2).
FOR FEDERAL HABEAS CORPUS PROCEEDINGS
preliminary matter, it should be noted that a § 2255
motion is “fundamentally different from a direct
appeal.” United States v. Drobny, 955 F.2d
990, 994 (5th Cir. 1992). A movant in a § 2255
proceeding may not bring a broad-based attack challenging the
legality of the conviction. The range of claims that may be
raised in a § 2255 proceeding is narrow. A
“distinction must be drawn between constitutional or
jurisdictional errors on the one hand, and mere errors of law
on the other.” United States v. Pierce, 959
F.2d 1297, 1300-1301 (5th Cir. 1992) (citations
omitted). A collateral attack is limited to alleging
errors of “constitutional or jurisdictional
magnitude.” United States v. Shaid, 937 F.2d
228, 232 (5th Cir. 1991). Conclusory allegations, which are
unsupported and unsupportable by anything else contained in
the record, do not raise a constitutional issue in a habeas
proceeding. Ross v. Estelle, 694 F.2d 1008, 1011-12
(5th Cir. 1983).
well-settled that, absent countervailing equitable
considerations, a § 2255 movant cannot relitigate issues
raised and decided on direct appeal. United States v.
Rocha, 109 F.3d 225, 299 (5th Cir. 1997); Withrow v.
Williams, 507 U.S. 680 (1993). “[I]ssues raised
and disposed of in a previous appeal from an original
judgment of conviction are [generally] not considered in
§ 2255 motions.” United States v. Kalish,
780 F.2d 506, 508 (5th Cir. 1986) (citing United States
v. Jones, 614 F.2d 80, 82 (5th Cir. 1980)). It is also
well settled that a collateral challenge may not take the
place of a direct appeal. Shaid, 937 F.2d at 231.
Accordingly, if Movant raised, or could have raised,
constitutional or jurisdictional issues on direct appeal, he
may not raise them on collateral review unless he shows
either cause for his procedural default and actual prejudice
resulting from the error, or demonstrates that the alleged
constitutional violation probably resulted in the conviction
of one who is actually innocent. Id. at 232.
claims that the Court lacked jurisdiction to try and sentence
him on Count Two. Movant raised this claim on direct appeal,
and the Fifth Circuit specifically held that 21 U.S.C.
§§ 959 and 960(b)(1) could be enforced wherever,
and against whomever that threatens the country’s
security and directly interferes with its governmental
operations. Because the issue was decided on direct appeal,
it is procedurally barred from collateral review. In his
reply to the Government’s response, Movant argues the
Court lacked jurisdiction because Movant was convicted for
events occurring on December 8, 2008, of which Movant had
already been convicted in Columbia. The extradition order
granted extradition from Columbia for the prosecution of
Movant on Count Two, except for acts occurring on December 8,
2008. The record shows that the jury made a special finding
as to Movant, affirming that his “guilty verdict was
based on an act or acts committed on a date or dates other
than December 8, 2008.” Criminal Action No.
4:09cr194(15) (Dkt. #898). This issue is without merit.
Movant complains about grand jury proceedings and a defective
indictment. Rule 12(b) of the Federal Rules of Criminal
Procedure provides that objections or requests concerning the
grand jury proceedings or indictment must be raised prior to
trial, or they are waived. The necessary effect of the rule
is to provide that a claim, once waived, may not later be
resurrected, either in the criminal proceedings or in federal
habeas, in the absence of the showing of cause. Davis v.
United States, 411 U.S. 233, 242 (1973) (holding the
waiver expressed in Rule 12(b) governs an untimely claim of
grand jury error, not only during the criminal proceeding,
but also later on collateral review). This issue was waived.
also claims that his offense level for sentencing should be
lowered because he played only a minor role in the offense.
Movant could have raised this issue on appeal. Moreover, the
Fifth Circuit has held that a district court’s
technical application of the sentencing guidelines does not
give rise to constitutional issues. United States v.
Towe, 26 F.3d 614, 616 (5th Cir. 1994).
the issues could have been raised on appeal. Movant fails to
show cause for his procedural default and actual prejudice
resulting from the error, or that he is actually innocent.
Shaid, 937 F.2d at 232.. These issues are
procedurally barred, waived, or not cognizable on federal