Herrera v. United States of America
Filing
7
MEMORANDUM OPINION. Signed by Judge R David Proctor on 5/20/2019. (KAM)
FILED
2019 May-20 PM 04:53
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
CHRISTOPHER GREGORY
HERRERA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 1:16-cv-08025-RDP
1:13-cr-423-RDP-SGC
MEMORANDUM OPINION
This matter is before the court on Petitioner Christopher Gregory Herrera’s Motion to
Vacate, Set Aside, or Correct Sentence, filed pursuant to 28 U.S.C. § 2255. (Civil Doc. # 1).1
The motion has been fully briefed. (Civil Docs. # 5, 6). For the reasons explained below, the
motion is due to be denied.
I.
Background
In October 2013, the United States Attorney charged Herrera with possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). (Cr. Doc. # 1). Assistant Federal
Public Defender Rick Burgess represented Herrera (Cr. Doc. # 3), who ultimately pleaded guilty
to the charge (Cr. Docs. # 16, 17). Following his guilty plea, Herrera was sentenced to 97 months
of imprisonment. (Cr. Doc. # 31 at 2). That sentence was within the applicable statutory and
guideline sentencing range for Herrera’s crime. See 18 U.S.C. § 2252A(b)(1) (statutory range of
zero to ten years of imprisonment); (Cr. Doc. # 45 at 4) (guideline range of 97 to 120 months of
imprisonment).
1
Citations to “Civil Doc.” refer to the docket sheet for this civil case, 1:16-cv-08025-RDP. Citations to “Cr.
Doc.” refer to the docket sheet for Herrera’s criminal case, 1:13-cr-00423-RDP-SGC-1.
With three exceptions, Herrera waived his right to challenge his conviction and sentence
on appeal as well as in any postconviction proceeding, including a motion under § 2255. (Cr.
Doc. # 17 at 14-15). Those exceptions reserved Herrera’s right to challenge (1) a prison sentence
exceeding the statutory maximum sentence for his crime; (2) a prison sentence exceeding the
guideline sentencing range determined by the court; and (3) ineffective assistance of counsel.
(Id.). Only the third exception is at issue in this case.
Notwithstanding this waiver, Herrera chose to appeal his conviction and sentence. (Cr.
Doc. # 36). The court appointed Kathy Luker to represent Herrera on appeal. (Cr. Docs. # 40,
41). After explaining to Herrera that he had no arguable issues of merit he could raise on appeal
(Civil Doc. # 6 at 27-28), Luker moved to withdraw from further representation of Herrera and
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). (Cr. Doc. # 47 at 2-3). The
Eleventh Circuit granted Luker’s motion to withdraw and affirmed Herrera’s conviction and
sentence. (Id.).
In April 2013, Herrera filed the instant motion to vacate his sentence pursuant to 28
U.S.C. § 2255. (Civil Doc. # 1). In his motion, Herrera contends that his guilty plea was obtained
in violation of Due Process and that he received ineffective assistance of counsel in the trial court
and on appeal. (Id. at 4-9).
II.
Legal Standard
A prisoner who files a § 2255 motion is generally entitled to an evidentiary hearing “if he
alleges facts that, if true, would entitled him to relief.” Winthrop-Redin v. United States, 767
F.3d 1210, 1216 (11th Cir. 2014) (internal quotation marks omitted). But no evidentiary hearing
is required if “the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Moreover, “a district court need not hold a
2
hearing if the allegations are ‘patently frivolous,’ ‘based upon unsupported generalizations,’ or
‘affirmatively contradicted by the record.’” Winthrop-Redin, 767 F.3d at 1216.
When collaterally attacking a sentence imposed on the basis of his guilty plea, a prisoner
bears an especially heavy burden. Id. Because dispositions by guilty plea must be “accorded a
great measure of finality,” “the representations of the defendant, his lawyer, and the prosecutor at
a plea hearing, as well as any findings made by the judge accepting the plea, constitute a
formidable barrier in any subsequent collateral proceedings.” Id. (internal quotation marks and
brackets omitted). Where the “the record reflects the procedures of plea negotiation and includes
a verbatim transcript of the plea colloquy, a petitioner challenging his plea will be entitled to an
evidentiary hearing only in the most extraordinary circumstances.” Id. (internal quotation marks
omitted). A prisoner may not successfully challenge his guilty plea through “[t]he subsequent
presentation of . . . contentions that in the face of the record are wholly incredible.” Id. (internal
quotation marks omitted). Indeed, such challenges are “subject to summary dismissal” without
an evidentiary hearing. Id.
III.
Analysis
Herrera makes two constitutional claims in his § 2255 motion. First, he claims his guilty
plea was obtained in violation of the Fifth Amendment’s Due Process Clause. (Civil Doc. # 1 at
4-5). Second, Herrera claims he received ineffective assistance of counsel in the trial court and
on appeal, in violation of his Sixth Amendment right to counsel, see Strickland v. Washington,
466 U.S. 668 (1984). Herrera is not entitled to relief on either claim.
Herrera’s first claim is foreclosed by his plea agreement, in which he knowingly and
voluntarily waived the right to collaterally attack his sentence on Due Process grounds. And his
Strickland claims, though not waived, are entirely without merit. Herrera’s § 2255 motion is
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therefore due to be denied without an evidentiary hearing.
A.
Herrera Waived His Right to Collaterally Attack His Sentence on Due
Process Grounds
Section 2255 generally allows a federal prisoner to collaterally attack his sentence on
grounds that it was imposed in violation of the Constitution or laws of the United States. 28
U.S.C. § 2255(a). However, a prisoner may waive his right to collaterally attack his sentence by
plea agreement. Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005). Such
collateral-attack waivers are valid if the prisoner agrees to the waiver knowingly and voluntarily.
Id. Here, Herrera’s plea agreement contained a collateral-attack waiver by which he waived the
right to challenge his conviction or sentence in a § 2255 motion except on three specified
grounds: (1) a sentence in excess of the statutory maximum; (2) a sentence in excess of the
guideline range; and (3) ineffective assistance of counsel. (Cr. Doc. # 17 at 14-15). Because the
court finds that Herrera agreed to this waiver knowingly and voluntarily, it concludes that
Herrera may not now collaterally attack his sentence on Due Process grounds.
The record in Herrera’s criminal case, including the plea colloquy that the undersigned
conducted with Herrera, conclusively establishes that his plea (including the collateral-attack
waiver) was knowing and voluntary. Herrera’s “conclusory and incredible allegations” to the
contrary are insufficient to warrant an evidentiary hearing or § 2255 relief. Winthrop-Redin, 767
F.3d at 1216.
On November 22, 2013, Herrera filed a Guilty Plea Advice of Rights Certification with
the court. (Cr. Doc. # 16). By signing the Certification, Herrera indicated that he understood
(among other things) the following:
That he would be placed under oath at his plea hearing;
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That he would be subject to penalties for perjury if he willfully made a false statement
at his plea hearing;
That he would be required at his plea hearing to inform the court if anything was said
or done that he didn’t understand;
That he would be asked if his plea was voluntary, or if anyone coerced or threatened
him to plead guilty; and
That he would be asked if he had time to discuss the content of his plea agreement with
his attorney and if he personally understood the content of the plea agreement.
(Id. at 1-4). By signing the Certification, Herrera acknowledged that his attorney, Rick Burgess,
had “explained to [him] in detail each of the matters set out” in the Certification. (Id. at 4).
After Herrera signed the Certification, on January 8, 2014, the court held a plea hearing at
which Herrera changed his plea to guilty. (Cr. Doc. # 17). At his plea hearing, Herrera confirmed
that he could read; that he and Burgess, had read, completed, and signed the Guilty Plea Advice
of Rights Certification; and that he understood all the information in the Certification. (Cr. Doc.
# 43 at 6-7). He also confirmed he could understand everything the court was saying and that he
was able to communicate with his lawyer. (Id. at 7). The court explained that if there was
anything Herrera did not fully understand, or if he needed to talk to his lawyer, he should let the
court know. (Id. at 6).
The court then proceeded to ascertain whether Herrera was knowingly and voluntarily
entering into his proposed plea agreement with the United States. (Id. at 13-31). The court asked
Burgess whether he had a sufficient opportunity to discuss the plea agreement with Herrera
before Herrera signed it, and Burgess responded that he had. (Id. at 16). The court then had the
5
following exchange with Herrera:
THE COURT: Mr. Herrera, a few questions for you. At each place where your
signature purports to appear in the Plea Agreement, is that actually your signature
that you yourself placed upon the document?
THE DEFENDANT: Yes, sir.
....
THE COURT: And at each place where your initials appear in the Plea
Agreement, are those your initials that you yourself placed upon the document?
THE DEFENDANT: Yes, sir.
THE COURT: And did you only sign the agreement and initial each page after
you were satisfied that you fully understood the contents of the agreement and its
operation and effect on you?
THE DEFENDANT: Yes, sir.
THE COURT: Did you have any questions concerning the meaning of the
agreement or its operation or effect on you that your lawyer didn’t answer to your
satisfaction?
THE DEFENDANT: No, sir.
THE COURT: Any such questions that you failed to ask your lawyer for some
reason?
THE DEFENDANT: No, sir.
THE COURT: All right. What I want to do is cover with you some specific
provisions in the agreement. First, there’s a section on Page 3 called “factual basis
for plea.” It carries over to Page 8 about a third of the way down the page where
your signature appears. Do you see the section I’m referring to there?
THE DEFENDANT: Yes, sir.
THE COURT: What I want to make sure you understand is that by signing the
agreement . . . you’re admitting that the facts contained in that section are true and
correct to the best of your knowledge; you are admitting them and stipulating to
their accuracy for purposes of my accepting your guilty plea today and for
purposes of sentencing in this case; and finally you’re waiving your right to have
a jury determine those facts to be true beyond a reasonable doubt. Do you
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understand all those things?
THE DEFENDANT: Yes.
...
THE COURT: All right. And there’s another section on Page 14 which indicates
that you are waiving your right to appea[l] and file a later lawsuit challenging
your conviction and sentence in this case unless one of the exceptions provided
for on Pages 14 and 15 come into play. Do you see that section I’m referring to?
THE DEFENDANT: Yes, sir.
THE COURT: And it’s entitled “waiver of right to appeal and post-conviction
relief.” And you signed at the end of that section on Page 15; is that correct?
THE DEFENDANT: Correct, yes, sir.
THE COURT: What I want to make sure you understand again is that this waiver
is generally enforceable, and unless one of these exceptions provided for in the
agreement comes into play, you will most likely have waived your right to appeal
your conviction and sentence in this case and file a later lawsuit challenging your
conviction and sentence in this case. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And your lawyer can give you advice about what he thinks you
ought to do in that respect, but he can’t make the decision for you nor can anyone
else. It’s got to be your decision about whether to enter into that waiver with the
government. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And have you concluded it’s in your best interest to enter into that
waiver with the government?
THE DEFENDANT: Yes, sir.
(Id. at 16-19).
The court also had the following exchange with Herrera:
THE COURT: Now, we’ve gone over the Plea Agreement in some detail. Other
than the Plea Agreement, has anyone made any promise or assurance to you to
cause you to plead guilty in this case?
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THE DEFENDANT: No, sir.
THE COURT: Has anyone threatened you or coerced you in any way to cause
you to plead guilty in this case?
THE DEFENDANT: No, sir.
THE COURT: Are you pleading guilty because you’re in fact guilty of this charge
made in the Information?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Mr. Borton and Mr. Burgess, are both of you satisfied
the Defendant fully understands the charge against him, the consequences of him
entering a guilty plea and that he’s knowingly and voluntarily doing so?
MR. BURGESS: Yes, Your Honor.
MR. BORTON: Yes, Your Honor.
(Id. at 26).
Finally, the court confirmed once again with Herrera, his counsel, and counsel for the
United States that Herrera was knowingly and voluntarily entering into the plea agreement, that
he was truly guilty of the charged offense, and that he would not be able to subsequently change
his plea back to “not guilty.” (Id. at 28-31). The court then found, based on Herrera’s live
testimony, that “the Defendant is fully competent and capable of entering an informed plea; he is
aware of the nature of the charge and the consequences of his plea; and that the plea of guilty is a
knowing and voluntary plea supported by an independent basis in fact which contains each of the
essential elements of the offense.” (Id. at 31).
In his § 2255 motion, Herrera claims for the first time (nearly two years after pleading
guilty) that his guilty plea was coerced. He makes the conclusory and fantastic allegation that he
was coerced into pleading guilty through a conspiracy between the FBI and state authorities:
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This Petitioner was COERCED to Plea Guilty under the FALSE pretences [sic]
that the F.B.I. had the authority to deprive the Petitioner of his children for life if
he did not admit guilt. After FORCED ENTRY of the house, belonging to his
father, the Petitioner and others were assaulted by more than ten (10) HEAVILY
ARMED MEN. Once BOUND and DETAINED, the Petitioner was informed that
the F.B.I. ORDERED State Authorities to take his CHILDREN INTO
CUSTODY. Subsequently, ALL the Petitioner’s children were systematically
taken into custody.
(Civil Doc. # 1 at 5; see also id. at 14). As explained below, these conclusory and fantastic
allegations provide no basis to question the record evidence demonstrating that Herrera
knowingly and voluntarily pleaded guilty to his crime and waived his right to collaterally attack
his conviction or sentence. For that reason, Herrera is not entitled to an evidentiary hearing or
§ 2255 relief.
In Winthrop-Redin, the Eleventh Circuit held that a district court may properly reject a
prisoner’s claim that his guilty plea was coerced without a hearing where the prisoner offers
“only implausible and conclusory allegations” in support of his claim. 767 F.3d at 1212. The
prisoner in that case, Wilson Daniel Winthrop-Redin, pleaded guilty to a federal drug charge
arising from his role as a boat crew member in an international drug-smuggling operation. Id.
Two years after pleading guilty, he sought relief under § 2255 on the ground that his plea was
coerced by death threats from the boat’s captain. Id. Like Herrera, Winthrop-Redin underwent a
lengthy plea colloquy to ensure that he understood the terms of his plea agreement and that his
plea was knowing and voluntary. Id. at 1213-14. And also like the Herrera, Winthrop-Redin
testified under oath that no one had threatened or coerced him into pleading guilty. Id.
But when Winthrop-Redin filed his § 2255 motion, he told a very different story. Id. at
1214-15. His motion alleged that the captain of the drug-smuggling boat and two other crew
members working as informants for the United States government “coerced me to plead guilty
9
under death threats.” Id. at 1214 (internal quotation marks and brackets omitted). The motion did
not provide details about where, when, or why he was coerced to plead guilty; instead, it only
claimed “at the highest order of abstraction” that Winthrop-Redin entered his plea out of fear. Id.
at 1214-15. The district court denied Winthrop-Redin’s § 2255 motion without a hearing because
it found that the record showed Winthrop-Redin knowingly and voluntarily entered his guilty
plea, and the Eleventh Circuit affirmed. Id. at 1212, 1215.
The Eleventh Circuit explained that “[t]he district court did not abuse its considerable
discretion in declining to hold a § 2255(b) evidentiary hearing because Winthrop-Redin’s
involuntary plea claim is based only on conclusory and incredible allegations.” Id. at 1216. The
court noted that the record contained powerful evidence showing that Winthrop-Redin’s plea was
voluntary. Id. at 1216-17. Winthrop-Redin (like Herrera) initialed and signed the plea agreement
and testified under oath that his plea had not been induced by threats or coercion. Id. The court
also observed that (again, like Herrera) Winthrop-Redin waited some two years after pleading
guilty (and filing a meritless appeal) to say anything to the district court about the alleged threats.
Id. at 1217. Finally, the court also recognized that Winthrop-Redin “did not put forward ‘specific
and detailed factual assertions’” in support of his involuntary plea claim. Id. Under these
circumstances, the court held, Winthrop-Redin could not overcome the “strong presumption of
verity” that attached to his prior sworn statements made during his plea colloquy. Id. The court
therefore affirmed the denial of Winthrop-Redin’s § 2255 motion without an evidentiary hearing.
Id. at 1218 (“The district court was not required to allow a fishing-expedition based only on
Winthrop-Redin’s incredible allegations.”).
As in Winthrop-Redin, Herrera’s allegations that he was coerced into pleading guilty and
waiving his right to collaterally attack his sentence are stale, conclusory, incredible, and flatly
10
contradicted by the record evidence and the undersigned’s own credibility determination based
on Herrera’s conduct and demeanor at his plea hearing. Herrera did not make any claim that his
plea agreement was coerced in correspondence with his appellate counsel shortly after pleading
guilty. (Civil Doc. # 6 at 19-29). Instead, he waited nearly two years after pleading guilty to
assert that his plea agreement and collateral-attack waiver were coerced. Moreover, Herrera’s
allegations are even more conclusory and implausible than the prisoner’s allegations in
Winthrop-Redin. Herrera would have the court believe that the FBI plotted with state authorities
to take his children away from him in an effort to coerce him into pleading guilty and agreeing to
a collateral-attack waiver, a plot which culminated in ten armed men assaulting Herrera and
others before taking his children into custody. (Civil Doc. # 1 at 5). These conclusory and
fantastic allegations do nothing to cast doubt upon the specific, detailed factual basis for
Herrera’s guilty plea that Herrera admitted to as part of his plea agreement. (Cr. Doc. # 17 at
3-8). As in Winthrop-Redin, conclusory, incredible allegations of this sort cannot overcome
Herrera’s prior conduct and sworn statements, all of which show that he knowingly and
voluntarily pleaded guilty and waived his right to collaterally attack his sentence.
Because the court finds that Herrera knowingly and voluntarily waived his right to
collaterally attack his sentence on Due Process grounds, Ground One of his § 2255 motion (Civil
Doc. # 1 at 4-6) is due to be denied.
B.
Herrera Has Failed to Show He Received Ineffective Assistance of Counsel
Herrera next argues he received ineffective assistance of counsel in the trial court and on
appeal, in violation of his Sixth Amendment right to counsel, see Strickland v. Washington, 466
U.S. 668 (1984). Though Herrera’s collateral-attack waiver permits him to raise ineffective
assistance claims in a § 2255 motion (Cr. Doc. # 17 at 14-15), his claims are entirely without
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merit.
An ineffective assistance of counsel claim under the Sixth Amendment has two elements.
First, a defendant “must show that counsel’s performance was deficient.” Strickland, 466 U.S.
668, 687 (1984). Second, he must show that counsel’s deficient performance prejudiced his
defense. Id.
To establish deficient performance, a defendant “must show that counsel’s representation
fell below an objective standard of reasonableness.” Harrington, 562 U.S. at 104 (internal
quotation marks omitted). Reasonableness must be determined by reference to “prevailing
professional norms.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc)
(quoting Strickland, 466 U.S. at 688). Reviewing courts “must apply a ‘strong presumption’ that
counsel’s representation was within the ‘wide range’ of reasonable professional assistance.”
Harrington, 562 U.S. at 104. The burden is on the defendant to show “that counsel made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. (quoting Strickland, 466 U.S. at 687).
To establish prejudice, a defendant “must demonstrate ‘a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Id.
(quoting Strickland, 466 U.S. at 694). Where a defendant “challenges his guilty plea based on his
counsel’s alleged deficient performance, he can show prejudice only if ‘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.’” Winthrop-Redin, 767 F.3d at 1219 (quoting Hill v. Lockhart, 474 U.S.
52, 59 (1985)).
The court separately considers whether Herrera has shown that either his trial or appellate
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counsel was constitutionally ineffective.
1.
Trial Counsel
Herrera was represented in the trial court by Rick Burgess. Herrera alleges that Burgess
performed deficiently by: (1) failing to adequately investigate his case, including failing to
request the appointment of experts and investigators prior to advising Herrera to plead guilty; (2)
failing to inform Herrera of the essential elements of the charged offense; and (3) failing to
inform Herrera that signing his plea agreement would result in waiver of his right to appeal or
collaterally attack his sentence. (Civil Doc. # 1 at 7-9). The first allegation provides no basis for
an evidentiary hearing or § 2255 relief because Herrera has not alleged how Burgess’s alleged
failure to investigate prejudiced him. The second and third allegations likewise provide no basis
for relief because they are conclusory and are directly contradicted by the record.
Had Burgess further investigated his case, Herrera claims he would have discovered that
the FBI has been a longtime coconspirator in the child-pornography trade. (Id. at 7-8). Herrera
also asserts Burgess “would have made pertinent discoveries concerning the essential elements
of the charged offenses as they relate to fact and law.” (Id. at 8). These discoveries, Herrera
asserts, would have caused Burgess to give him different advice and resulted in Herrera choosing
to proceed to trial instead of pleading guilty. (Id. at 7-8).
Again, Herrera’s allegations are speculative, conclusory, and fantastical. He does not
allege how Burgess’s purported discovery of the FBI’s involvement in the child-pornography
trade would have caused him to change his advice to Herrera about whether Herrera should plead
guilty to knowingly possessing child pornography. And he does not specify what “pertinent
discoveries” Burgess would have made concerning the charged offense, or how those discoveries
would have changed Burgess’s advice to Herrera. Where a prisoner does not specifically allege
13
how his counsel’s supposedly deficient performance prejudiced him, he is not entitled to an
evidentiary hearing or § 2255 relief on a Strickland claim. Hill, 474 U.S. at 60; Winthrop-Redin,
767 F.3d at 1219-20.
Herrera’s second and third allegations -- that Burgess failed to inform him (1) of the
essential elements of the charged offense and (2) that his plea agreement waived his right to
appeal or collaterally attack his sentence -- are flatly contradicted by the record. In his Guilty
Plea Advice of Rights Certification, Herrera certified that he understood the following questions
would be asked of him at his plea hearing:
“I will be asked if I had enough time to discuss the case with my attorney.”
“I will be asked if my attorney has explained the elements of the charge(s) against me.”
“I, Christopher G. Herrera, hereby acknowledge that my attorney, [Rick Burgess], has
explained to me, in detail each of the matters set out above.”
“I also certify that I am satisfied with the representation my attorney has provided me,
and that I have no complaints about any aspect of his or her representation of me.”
(Cr. Doc. # 16 at 3-4). Herrera’s counsel, Rick Burgess, also made the following certifications:
“I have discussed with the defendant, in detail, each of the matters set out above;”
“I have observed the defendant today, before the plea proceeding, and I am aware of no
reason why the defendant is not competent to enter a guilty plea(s) at this time;”
“I am aware of no reason, at this time, why the defendant’s guilty plea(s) should not be
accepted by the court.”
(Id. at 5).
After Herrera signed the Certification, at his plea hearing, the court had the following
14
exchange with Herrera:
THE COURT: Mr. Burgess, have you had adequate time to investigate the charge
against your client, to consider any possible defense he may have to the charge,
and to consult with him concerning each of those matters?
[MR. BURGESS]: Yes, Your Honor.
THE COURT: And, Mr. Herrera, have you had adequate time to accomplish those
tasks with your lawyer?
THE DEFENDANT: Yes, sir.
THE COURT: And are you fully satisfied with the representation and advice that
you have received from your attorney, Mr. Burgess?
THE DEFENDANT: Yes, sir.
....
THE COURT: Now, in this case, Count 1 of the Information charges you with the
offense of violating 18 United States Code Section 2252A(a)(5)(B), which makes
it a felony offense to possess child pornography. Before you could be found guilty
of that charge, the government would be required to prove each and every element
of the charge made against you to the jury beyond a reasonable doubt. And in
order to accomplish that, the government would have to prove the following facts
to the jury beyond a reasonable doubt: First, that you knowingly possessed an
item or items of child pornography; second, that the items of child pornography
that you possessed had been transported, shipped and mailed in interstate or
foreign commerce, including by computer; and finally that when you possessed
the item, child pornography, you believed the item contained child pornography.
First, do I need to define any of these terms for you?
THE DEFENDANT: No, sir.
THE COURT: Do I need to give you any further explanation of the charge?
THE DEFENDANT: No, sir.
THE COURT: Is what I’ve just told you about what the government would have
to prove consistent with what Mr. Burgess explained to you before you came
into the courtroom today?
THE DEFENDANT: Yes, sir.
15
THE COURT: Do you understand the charge made against you in the
Information based upon my instructions to you?
THE DEFENDANT: Yes, sir.
(Cr. Doc. # 43 at 8, 11-12) (emphasis added).
Thus, the record conclusively establishes that Burgess informed Herrera of the essential
elements of the charged offense. Herrera’s conclusory allegation to the contrary cannot
overcome the presumption of verity that attaches to his sworn statements at and prior to his plea
hearing. See Winthrop-Redin, 767 F.3d at 1216-17. Additionally, the testimony referenced above
(in Section III.A of this opinion) conclusively establishes that Herrera understood the contents of
his plea agreement, including the collateral-attack waiver, that he had discussed the contents of the
agreement with his attorney to his satisfaction, and that Herrera knowingly and voluntarily agreed
to the collateral-attack waiver because he believed it to be in his best interest. (Cr. Docs. # 16 at
1-4; 17 at 22-23; 43 at 13-31). His conclusory allegation that Burgess failed to discuss and explain
the collateral-attack waiver to him is refuted by the record and therefore provides no basis for
relief. And in any event, Herrera could not show prejudice from any failure by counsel to explain
the collateral-attack waiver to him because the court explained the collateral attack waiver to
Herrera at his plea hearing and ensured that Herrera understood its terms and was knowingly and
voluntarily agreeing to the waiver because he believed it to be in his best interest. (Cr. Doc. # 43 at
18-20).
For all these reasons, Herrera’s claim that he received ineffective assistance of counsel in
the trial court is due to be denied.
2.
Appellate Counsel
Herrera was represented on direct appeal by Kathy Luker. Herrera alleges that Luker
performed deficiently by filing an Anders brief and moving to withdraw instead of arguing for
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the reversal of Herrera’s conviction and sentence. (Civil Doc. # 1 at 9). Because there are no
arguable issues of merit Luker could have raised on appeal, her decision to file an Anders brief
was not deficient. And because Herrera has failed to specifically allege what issues Luker could
have raised on appeal that would have created a reasonable probability of appellate relief, he has
also failed to show prejudice. Herrera’s claim that he received ineffective assistance of counsel
on direct appeal is therefore due to be denied.
IV.
Conclusion
For the reasons explained above, Herrera is not entitled to either an evidentiary hearing or
postconviction relief on his § 2255 motion. The motion is accordingly due to be denied. A
separate order consistent with this memorandum opinion will be entered.
DONE and ORDERED this May 20, 2019.
_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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