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Barrera Pineda v. United States

United States District Court, E.D. Texas, Sherman Division

September 18, 2019

OSCAR O. BARRERA PINEDA, #18940-078
v.
UNITED STATES OF AMERICA

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE.

         Pro 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.

         BACKGROUND

         On 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.

         The 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[1] 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).

         STANDARD FOR FEDERAL HABEAS CORPUS PROCEEDINGS

         As a 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).

         PROCEDURAL BAR

         It is 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.

         Movant 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.

         Additionally, 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.

         Movant 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).

         Each of 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 habeas review.

         INEFFECTIVE ...


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