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Garza v. United States

United States District Court, W.D. Texas, San Antonio Division

December 3, 2019

DAVID JOSEPH GARZA, #45011-380 Movant,



         Before the Court is Movant David Joseph Garza's (“Garza”) pro se Motion pursuant to 28 U.S.C. § 2255 (“Section 2255 Motion”) to vacate, set aside, or correct his sentence imposed following a conviction for conspiracy to interfere with interstate commerce by robbery and supporting Memorandum with affidavit (ECF Nos. 222 & 223); the Government's Response in opposition thereto (ECF No. 230); and Garza's Reply (ECF No. 231). For the following reasons, the Section 2255 Motion is DENIED.


         1. Factual Background and Criminal Proceedings

         Garza's conviction in this case arises from his involvement in a prolific robbery ring that targeted retail establishments in Texas and elsewhere. (ECF No. 90 at 7). Additionally, Garza and his co-conspirators routinely stole vehicles, which they would drive to the target establishments and then abandon at a staging area following the robberies. (Id. at 5-7). The majority of the robberies and burglaries occurred at chain stores in the middle of the night when employees were not directly threatened. (ECF No. 230 at 3). Therefore, many of the crimes were not charged federally, as they did not qualify as Hobbs Act violations. (Id.).

         On October 15, 2014, a federal grand jury returned a six-count indictment alleging that, from April 2010 to January 2012[1], Garza and his co-defendants conspired to rob a number of retail establishments, primarily jewelry stores, in San Antonio, San Marcos, and Austin, Texas, and conspired to steal a Frost Bank ATM from a hospital in San Antonio. (ECF No. 3). Counts One through Five charged Garza with conspiracy to interfere with interstate commerce by robbery pursuant to 18 U.S.C. § 1951. (Id. at 1-6). Count Six charged Garza with conspiracy to commit bank larceny pursuant to 18 U.S.C. §§ 2113(b) and 371 for stealing the ATM. (Id. at 6-7). Attorney John Michael Economidy was appointed to represent Garza. (ECF No. 46).

         Garza pleaded guilty to Count One of the indictment pursuant to a Plea Agreement. (ECF Nos. 73 & 77). In executing the Plea Agreement, Garza admitted to the factual basis, which included the April 6, 2010 robbery of a Diamond and Jewelry Gallery in San Antonio; the June 4, 2010 robbery of a Kay Jewelers in San Antonio; the November 12, 2010 burglary of a Sam's Club in Austin; the November 19, 2010 robbery of a Tourneau Jewelers in San Marcos; the January 18, 2011 robbery of a Ben Bridge Jewelry Store in Austin; and the September 8, 2011 theft of a Frost Bank ATM from a hospital in San Antonio. (ECF No. 73 at 2-6).

         As part of the Plea Agreement, the parties agreed to a recommended total offense level of 29, due to the age and complexity of the case and the number of witnesses needed to prosecute the case. (Id. at 9). The recommended total offense level of 29 reflected all adjustments, including a three-point downward adjustment for acceptance of responsibility. (Id.). Additionally, the Government agreed not to seek an enhancement for aggravating role as leader of the conspiracy. (Id.). Garza agreed to waive the right to appeal his conviction and sentence but reserved the right to raise claims of ineffective assistance of counsel. (Id. at 7).

         Thereafter, a United States probation officer prepared a Pre-Sentence Report (PSR). (ECF No. 90). The PSR calculated a single, combined adjusted offense level of 33 using units, pursuant to U.S.S.G. § 3D1.4. (Id. at 12). After deducting three points for acceptance of responsibility, pursuant to U.S.S.G. §§ 3E1.1(a) and 3E1.1(b), the PSR reflected a total offense level of 30. (Id.). Garza faced a statutory maximum term of imprisonment of twenty years. (Id. at 23). Based upon a total offense level of 30 and a criminal history category of VI, the PSR calculated Garza's advisory Guidelines sentencing range as 168 to 210 months of imprisonment. (Id.). However, the PSR noted the parties' agreement to recommend a total offense level of 29. (Id.). Based on a total offense level of 29 and a criminal history category of VI, the PSR calculated Garza's Guidelines sentencing range as 151 to 188 months of imprisonment, in the event the Court adopted the Plea Agreement's recommendation. (Id. at 24).

         On September 15, 2015, this Court sentenced Garza to 151 months of imprisonment with credit for time served since November 12, 2014, a three-year term of supervised release, and a $100.00 special monetary assessment, and ordered Garza to pay restitution in the amount of $1, 695.627. (ECF No. 102). On the Government's motion, the Court dismissed the remaining counts of the indictment. (Id.). Judgment was entered on September 21, 2015. (Id.). An amended judgment was entered to reflect the correct victim. (ECF No. 144).

         2. Section 2255 Motion

         On September 1, 2016, Garza filed a Section 2255 Motion, which he amended shortly thereafter. (ECF Nos. 141 & 149). The amended Section 2255 Motion and supporting memorandum alleged, among other things, that Garza instructed Mr. Economidy to file an appeal on his behalf, but Mr. Economidy failed to do so. (ECF Nos. 149 & 150). An evidentiary hearing was held as to whether Garza requested that Mr. Economidy file a notice of appeal. (ECF No. 170). Following the hearing and upon the Magistrate Judge's Report and Recommendation, this Court stayed the Section 2255 Motion and granted Garza an out-of-time appeal based on a letter Garza sent to the district clerk demonstrating his intent to appeal. (ECF No. 184). The Court later dismissed the pending amended Section 2255 Motion without prejudice pending resolution of Garza's appeal. After the Fifth Circuit Court of Appeals dismissed Garza's appeal, Garza re-filed the Section 2255 Motion now pending before this Court. (ECF Nos. 218 & 222). Although Garza asserts twelve individual grounds for relief based on the alleged ineffective assistance of counsel, his two primary contentions are as follows: first, that he pleaded guilty based on the erroneous advice of counsel, and, second, that counsel intentionally punished him by failing to assert various arguments on his behalf at sentencing.


         1. Legal Standard

         A federal defendant may move to vacate, set aside, or correct his sentence if: (1) the imposition of the sentence was in violation of the Constitution or the laws of the United States; (2) the District Court that imposed the sentence lacked jurisdiction; (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; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). Thus, § 2255 post-conviction relief is reserved for errors of constitutional dimension and other injuries that could not have been raised on direct appeal and, if left unaddressed, would result in a complete miscarriage of justice. See, e.g., United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998); United States v. Payne, 99 F.3d 1273, 1281 (5th Cir. 1996).

         2. Waiver of the Right to Appeal

         A defendant may waive his right to direct appeal and collateral attack of a conviction and sentence by means of a plea agreement as long as the waiver is both knowing and voluntary. See, e.g., United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005); United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005); United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994). As the Fifth Circuit stated in Portillo:

[W]hen the record of the Rule 11 hearing clearly indicates that a defendant has read and understands his plea agreement, and that he has raised no question regarding a waiver-of-appeal provision, the defendant will be held to the bargain to which he agreed, regardless of whether the court specifically admonished him concerning the waiver of appeal.

McKinney, 406 F.3d at 746 (quoting Portillo, 18 F.3d at 293). A district court must first determine whether the waiver was voluntary and knowing, and then evaluate whether the waiver “applies to the circumstances at hand, based upon the plain language of the agreement.” Bond, 414 F.3d at 544 (citing McKinney, 406 F.3d at 746-47). A defendant knowingly enters a waiver when “the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances - even though the defendant may not know the specific detailed consequences of invoking it.” United States v. Ruiz, 536 U.S. 622, 629 (2002). A plea qualifies as intelligent when the criminal defendant enters it after receiving “real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” Bousley v. United States, 523 U.S. 614, 618 (1998).

         The Supreme Court's decision in Boykin v. Alabama requires a hearing prior to entry of a guilty plea, at which the Court must elicit an affirmative showing that the decision to plead guilty was voluntarily and intelligently made. 395 U.S. 238, 243 (1969); Matthew v. Johnson, 201 F.3d 353, 367 n.22 (5th Cir. 2000). Rule 11 of the Federal Rules of Criminal Procedure provides procedural safeguards for assuring guilty pleas are voluntary and knowing, by requiring a judge to ensure the defendant understands the law governing his crime in relation to the facts of his case, as well as his rights as a criminal defendant. United States v. Vonn, 535 U.S. 55, 62 (2002).

         However, a determination of whether a defendant understands the consequences of his guilty plea, including the waiver of his right to appeal or collaterally attack his conviction and sentence, does not require the trial court to conclude the defendant has a perfect understanding of the consequences; the Court must only establish the defendant understands the charges and has a realistic understanding of the consequences. United States v. Gracia, 983 F.2d 625, 627-28 (5th Cir. 1993). The Court must also ensure there was no coercion to enter the guilty plea. Id. Compliance with the admonishments required under Rule 11 “provides prophylactic protection for the constitutional rights involved in the entry of guilty pleas.” Id. at 627.

         3. Ineffective Assistance of Counsel

         Even if a defendant waives his right to appeal or collaterally attack his plea and sentence, he can avoid those waivers based on a claim of ineffective assistance of counsel if he shows “the claimed assistance directly affected the validity of that waiver or the plea itself.” United States v. White, 307 F.3d 336, 343 (5th Cir. 2002). An ineffective assistance of counsel claim in the context of a guilty plea is subject to the same standard as any other ineffective assistance claim, i.e., the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To successfully state a claim of ineffective assistance of counsel under Strickland, a prisoner must demonstrate counsel's performance was deficient and the deficient performance prejudiced his defense. Id. at 687. The failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. Id. at 696.

         The proper standard for attorney performance is that of reasonably effective assistance. Id. at 688. When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that, considering all the circumstances, counsel's representation fell below an objective standard of reasonableness. Id. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Id. at 687-89. To determine whether counsel's performance was constitutionally deficient, courts “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance.” Id. at 689. An attorney's strategic choices, usually based on information supplied by defendant and from a thorough examination of relevant facts and law, are virtually unchallengeable. Jones v. Jones, 163 F.3d 285, 300 (5th Cir. 1998), cert. denied, 528 U.S. 895 (1999).

         When a prisoner challenges his plea based on ineffective assistance of counsel, the “prejudice” requirement “focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 58 (1985). To satisfy this requirement, the prisoner “must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96. In this analysis, a defendant's sworn statements made to the Court when a guilty plea is entered carry a strong presumption of verity, and the “subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

         With respect to sentencing issues, the prisoner must establish a reasonable probability that, but for counsel's errors with respect to sentencing matters, he would have received less time in prison. See United States v. Grammas, 376 F.3d 433, 436-8 (5th Cir. 2004); Glover v. United States, 531 U.S. 198, 203 (2001).


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