Meraz v. United States of America

Filing 9

MEMORANDUM OPINION. Signed by Judge Karon O Bowdre on 6/14/2012. (FNC)

FILED
2012 Jun-14 AM 11:18
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
DANIEL ORTIZ MERAZ,
Movant/Defendant,
v.
THE UNITED STATES OF AMERICA,
Respondent.

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7:09-cr-00064-KOB-JEO
7:10-cv-08041-KOB-JEO

MEMORANDUM OPINION
The cases referenced above are before the court on the motions of defendant Daniel Ortiz
Meraz for production of documents (9-64, doc. 33) and to vacate, set aside, or correct his
conviction and sentence under 28 U.S.C. § 2255 (09-64, doc. 35, doc. 1).1 In the § 2255 motion,
Meraz particularly challenges the validity of his guilty plea and resulting sentence. Upon
consideration, the court finds no need for an evidentiary hearing and that the motions are due to
be denied.
I. FACTS AND PROCEDURAL HISTORY
On February 26, 2009, the Grand Jury for the Northern District of Alabama issued an
indictment against Meraz, charging him with three courts of distribution of a mixture and
substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(c). (9-64, Doc. 7). Approximately two months later, April 20, 2009, the
Grand Jury issued a superseding indictment, charging Meraz with the initial three counts and an

1

References to“9-64, Doc. ___” are to the document numbers assigned by the Clerk of the Court in Meraz’s original
criminal case (United States v. Daniel Ortiz Meraz, 7:09-cr-00064-KOB-JEO). References to “Doc. ___” are to the
document numbers assigned by the Clerk of the Court in Meraz’s collateral matter (Daviel Ortiz Meraz v. United States,
7:10-cv-08041-KOB-JEO).

additional count for distribution of 50 grams or more of methamphetamine in violation of §
841(a)(1) and (b)(1)(A). (9-64, Doc. 15).
This court determined that Meraz could not afford to retain an attorney and, therefore,
appointed attorney Joseph A. Ingram to represent Meraz. (9-64, Doc. 5). On February 2, 2009,
the court conducted a detention hearing at which Mr. Ingram represented Meraz. (09-64, Doc.
6). At the conclusion of the hearing, the court ordered Meraz detained without bond pending
trial. (Id.) Ultimately, Meraz and the United States reached a plea agreement in which Meraz
agreed to plead guilty to Count Four of the Indictment (possession with intent to distribute 50
grams or more of methamphetamine), and the United States agreed to dismiss Counts One, Two,
and Three at the sentencing hearing. (9-64, Doc. 24). Relevant to the present petition, the plea
agreement stated in part:
In consideration of the recommended disposition of this case, I, Daniel Ortiz
Meraz, hereby waive and give up my right to appeal my conviction in this case, as
well as any fines, restitution, and/or sentence the court might impose on me.
Further, I waive and give up the right to challenge any conviction or sentence
imposed or the manner in which the sentence was determine in any collateral
attack, including, but not limited to, a motion brought under 28 U.S.C. § 2255,
subject to the following limitations:
The defendant reserves the right to contest in an appeal or post-conviction
proceeding any or all of the following:
(a)

Any sentence imposed in excess of the applicable statutory
maximum sentence(s); and

(b)

Any sentence that constitutes an upward departure from the
advisory guideline sentencing range calculated by the court at the
time sentence is imposed.

The defendant acknowledges that before giving up these rights, he
discussed the Federal Sentencing Guidelines and their application to his case with
his attorney, who explained them to his satisfaction. The defendant further
acknowledges and understands that the government retains its right to appeal
where authorized by statute.
2

I, Daniel Ortiz Meraz, hereby place my signature on the line directly below
to signify that I fully understand the foregoing paragraphs, and that I am
knowingly and voluntarily entering into this waiver.
s/_____________________
Daniel Ortiz Meraz
(Id. at 8-9) (emphasis added).
Consistent with the plea agreement, Meraz pleaded guilty to Count Four and the United
States moved to dismiss Counts One, Two, and Three at the sentencing hearing. (9-64, Doc. 37).
On April 29, 2009, Meraz executed a Guilty Plea Advice of Rights Certification Bilingual
(English/Spanish) Version with Mr. Ingram and an official court interpreter. (Doc. 23). Then on
May 11, 2009, Meraz pleaded guilty to Court Four. (9-64, Doc. 37). The plea hearing included
the following exchange:
THE COURT:

Mr. Meraz, the plea agreement that you have entered contains
language waiving or giving up some or all of your rights to appeal
the sentence or to challenge the conviction. Under certain
conditions, you can waive or give up those rights to appeal, and
such a waiver may be enforceable against you. However, if for
some reason you believe that the waiver is not enforceable, then
you can appeal and present that theory to the appellate court.
At the time that you signed this agreement, however, did you
understand that you were waiving or giving up some or all of your
rights to appeal?

THE DEFENDANT: Yes.
(9-64, Doc. 37 at 9-10). This court concluded that Meraz’s “plea of guilty [was] freely,
voluntarily, knowingly, and understandingly offered by him and that the requisite factual basis
for the plea does exist” and, therefore, accepted the plea. (Id. at 23).
The United States Probation Office prepared a Presentence Investigation Report (“PSR”),
and, in response, Mr. Ingram filed a sentencing memorandum on behalf of Meraz, (09-64, Docs.

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27 & 40). In the sentencing memorandum, Mr. Ingram requested that this court impose a
sentence outside the advisory Guideline range pursuant to 18 U.S.C. § 3553(a), “[g]iven Meraz’s
history and characteristics, and the nature and circumstances of the offense.” (Doc. 27 at 1). In
support, Mr. Ingram noted that Meraz was raised by a single parent, came to the United States as
a teenager to attend school and live with his aunts, and sold drugs to make money to live. (Id. at
6). Mr. Ingram also submitted two letters from individuals Meraz knew in California, asking the
court for leniency due to Meraz’s strong work ethic and reliability. (Docs. 27-1 & 27-2). On
September 2, 2009, this court held a sentencing hearing and subsequently sentenced Meraz to the
statutory mandatory minimum for Count Four – 120-months imprisonment under § 841(a)(1) and
(b)(1)(A) and 60-months of supervised release. (Doc. 31). Meraz did not appeal his conviction
or sentence.
On September 16, 2010, Meraz filed the instant pro se § 2255 motion, supporting brief,
and his own affidavit in support of the motion. (Docs. 1, 2 & 3). In the motion, Meraz asserts
that Mr. Ingram rendered ineffective assistance of counsel by
1.
permitting Meraz to waive his appeal and post-conviction rights
while knowing that he did not fully understand the terms of the waiver;
2.
failing to properly advise Meraz of the collateral immigration
consequences that result from a guilty plea; and
3.
failing to investigate the factual and legal basis for downward
departures and sentence departures.
The United States moved to dismiss the motion based on his waiver of habeas relief in the plea
agreement, and, in the alternative, responded to the motion. (Doc. 7). In support, the United
States submitted an affidavit from Mr. Ingram. (Doc. 7-1). Meraz replied to the response of the
United States. (Doc. 8).

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II. DISCUSSION
A.

Motion for Production of Documents
In the underlying criminal case, 7:09-cr-00064-KOB-JEO, Meraz filed a Motion for

Production of Documents on May 7, 2010, in preparation of his § 2255 motion. (9-64, Doc. 33).
He specifically requested that the court provide him with copies of the docket sheet, transcripts
from the change of plea hearing and the sentencing hearing, indictments, motions, memoranda,
and the plea agreement. (Id. at 2). The motion is due to be denied because Meraz has no
absolute right to these documents from the court, and he has not demonstrated that production of
these documents at public expense is justified. As an initial matter, the transcripts of the plea
hearing and then sentencing hearing were not available until October 1, 2010 (9-64, Docs. 37 &
38). Moreover, as an exhibit to his § 2255 motion, Meraz included a letter dated May 27, 2010,
from Mr. Ingram, stating “Enclosed please find the following documents related to your case: 1.
Docket Sheet ... 6. Indictment ... 12. Superseding Indictment ... 15. Plea Agreement.” (10-8041,
Doc. 3, at 13-14). Therefore, Meraz had received the documents that then existed from counsel.
First, Meraz’s request for the transcripts was premature because he filed the request
before filing his § 2255 motion and before the transcripts were available. See, e.g., United States
v. Horvath, 157 F.3d 131, 133 (2nd Cir. 1998) (“We hold that a motion seeking transcripts
pursuant to § 753(f) in relation to a contemplated § 2255 motion is not ripe until the § 2255
motion has been filed”); Chapman v. United States, 55 F.3d 390 (8th Cir. 1995) (“any request for
a free transcript prior to the filing of a section 2255 complaint is premature,” and defendant is
“not entitled to copies of transcripts at government expense in advance of filing suit”) (citation
omitted); Walker v. United States, 424 F.2d 278, 279 (5th Cir. 1970) (“A federal prisoner is not
entitled to obtain copies of court records at Government expense for the purpose of searching the
5

record for possible error.”). Indeed, 28 U.S.C. § 753(f) provides that “[f]ees for transcripts
furnished in other proceedings to persons permitted to appeal in forma pauperis shall also be
paid by the United States if the trial judge or a circuit judge certifies that the appeal is not
frivolous (but presents a substantial question).” (emphasis added). Without a § 2255 motion to
consult, Meraz’s request for the documents was premature. Additionally, for the reasons
discussed in section B.2, the subsequently filed § 2255 motion is frivolous and, therefore, does
not require production of the transcripts.
As to the remaining documents—indictments, the plea agreement, motions,
memorandums, and the docket sheet—as noted, the record evidence indicates that Mr. Ingram
provided these documents to Meraz more than three months before Meraz filed the § 2255
motion. (Doc. 3 at 13-14). Nevertheless, Meraz has not demonstrated that production of the
documents by the court at public expense is justified or necessary, and this court’s review of the
§ 2255 motion demonstrates that production of the documents is unnecessary. For all these
reasons, Meraz’s Motion for Production of Documents (9-64, doc. 33) is due to be denied.
B.

Motion to Vacate, Set Aside, or Correct pursuant to 28 U.S.C. § 2255
The court now turns to Meraz’s motion to vacate, set aside, or correct his conviction and

sentence pursuant to 28 U.S.C. § 2255. (Doc. 1). Section 2255 provides that a prisoner in
federal custody may move the court that imposed sentence to vacate, set aside or correct the
sentence if it was imposed in violation of federal constitutional or statutory law, was imposed
without proper jurisdiction, is in excess of the maximum authorized by law, or is otherwise
subject to collateral attack. If a court finds a claim under § 2255 to be valid, then the court “shall
vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a
new trial or correct the sentence as may appear appropriate.” Id. To obtain this relief on
6

collateral review, however, a petitioner must “clear a significantly higher hurdle than would exist
on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982) (rejecting the plain error
standard as not sufficiently deferential to a final judgment).
Unless “the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief,” the court shall “grant a prompt hearing thereon, determine the
issues and make findings of fact and conclusions of law with respect thereto.” § 2255. The
Eleventh Circuit Court of Appeals has explained, “[a] habeas corpus petitioner is entitled to an
evidentiary hearing on his claim ‘if he alleges facts which, if proven, would entitle him to
relief.’” Smith v. Singletary, 170 F.3d 1051, 1053 (11th Cir. 1999) (quoting Futch v. Dugger,
874 F.2d 1483, 1485 (11th Cir. 1989)). However, “if the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district court is not required to hold an
evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
1.

Motion to Dismiss

The United States moves to dismiss the § 2255 motion on the grounds that, in the plea
agreement, Meraz waived his rights to collaterally attack his conviction and sentence. (Doc. 7).
The law is well-established that a criminal defendant who executes a plea agreement may waive
his right to collaterally challenge his conviction and sentence under § 2255 if the waiver is made
knowingly and voluntarily. See United States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir.
1993). The Eleventh Circuit has advised that the waiver is made knowingly and voluntarily if
either “(1) the district court specifically questioned the defendant concerning the sentence appeal
waiver during the [plea] colloquy, or (2) it is manifestly clear from the record that the defendant
otherwise understood the full significance of the waiver.” Williams v. United States, 396 F.3d
1340, 1341 (11th Cir. 2005) (citations and quotations omitted). However, the Eleventh Circuit
7

has also noted that a valid appeal waiver likely does not preclude § 2255 claims based on
ineffective assistance of counsel when those claims challenge the validity of the plea or the
waiver itself. See id. at 1342 n.2 (“there may be a distinction between a § 2255 claim of
ineffective assistance in entering or negotiating the plea versus a claim of ineffectiveness at
sentencing or a claim challenging the validity of the plea or agreement”); United States v. Chapa,
800 F. Supp. 2d 1216, 1220 (N.D. Ga. 2011) (“appeal waiver likely does not waive the right to
challenge the validity of the plea in which the waiver is contained or waive a claim that counsel
was ineffective in advising the defendant regarding the plea”).
Here, the court is unpersuaded by the argument of the United States that Meraz waived
his rights to collaterally challenge his conviction and sentence because Meraz is challenging the
validity of the plea itself. Meraz contends that the waiver should have no force because Mr.
Ingram did not discuss the waiver with him prior to the plea, (doc. 2 at 5), and that “while an
interpreter briefly explained a document entitled ‘Advice,’ on a separate date, no such interpreter
was present or explained the legal consequences of the plea waiver itself.” (doc. 8 at 2).
Additionally, the record is not manifestly clear in evidencing that Meraz understood the full
significance of the waiver or that this court specifically questioned Meraz concerning the
collateral-attack waiver. The plea colloquy focused on Meraz’s waiver of his right to appeal, not
his waiver of collateral proceedings:
THE COURT:

Mr. Meraz, the plea agreement that you have entered contains
language waiving or giving up some or all of your rights to appeal
the sentence or to challenge the conviction. Under certain
conditions, you can waive or give up those rights to appeal, and
such a waiver may be enforceable against you. However, if for
some reason you believe that the waiver is not enforceable, then
you can appeal and present that theory to the appellate court.
At the time that you signed this agreement, however, did you
8

understand that you were waiving or giving up some or all of your
rights to appeal?
THE DEFENDANT: Yes.
(9-64, Doc. 37 at 9-10) (emphasis added). Simply, while it is clear that the court specifically
questioned Meraz concerning the appeal waiver, the court cannot say the same about the
collateral-attack waiver. Additionally, Meraz testified in his affidavit that “[Mr. Ingram] never
explained to me the difference between filing a direct appeal and a § 2255 motion.” (Doc. 3 at
3). For these reasons, the Motion to Dismiss is due to be denied, and the court will consider the
merits of Meraz’s claims of ineffective assistance of counsel.
2.

Meraz’s Ineffective Assistance of Counsel Claims

To prevail on a claim of ineffective assistance of counsel, the movant must establish: (1)
deficient performance—that his counsel’s representation fell below an objective standard of
reasonableness; and (2) prejudice—but for the deficiency in representation, a reasonable
probability exists that the result of the proceeding would have been different. See Strickland v.
Washington, 466 U.S. 668 (1984); Chandler v. United States, 218 F.3d 1305 (11th Cir. 2000).
The burden of proving ineffective assistance remains with the movant at all times. See Chandler,
218 F.3d at 1315 n.15. A court may decline to reach the performance prong of the standard if it
is convinced that the prejudice prong cannot be satisfied. See Strickland, 466 U.S. at 697;
Waters v. Thomas, 46 F.3d 1506, 1510 (11th Cir. 1995).
The performance prong of Strickland “requires a petitioner to establish that counsel
performed outside the wide range of reasonable professional assistance and made errors so
serious that he failed to function as the kind of counsel guaranteed by the Sixth Amendment.”
Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004). The proper measure of attorney

9

performance is “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at
688. Because a wide range of performance is constitutionally acceptable, “the cases in which
habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few
and far between.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). Courts “are not interested
in grading lawyers’ performances” but, “are interested in whether the adversarial process at trial
... worked adequately.” Id. at 386. To be unreasonable, the performance must be such that “no
competent counsel would have taken the action that his counsel did take.” Grayson v.
Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001). In other words, “[e]ven if many reasonable
lawyers would not have done as defense counsel did at trial, no relief can be granted on
ineffectiveness grounds unless it is shown that no reasonable lawyer, in the circumstances, would
have done so.” Rogers, 13 F.3d at 386.
The prejudice prong of Strickland “requires a petitioner to demonstrate that seriously
deficient performance of his attorney prejudiced the defense.” Butcher, 368 F.3d at 1293. In the
guilty-plea context, a petitioner must establish “a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). Similarly, in the sentencing context, a petitioner must
establish a reasonable probability that, but for counsel’s deficient performance, the result of the
sentencing proceeding would have been different. See Glover v. United States, 531 U.S. 198,
203-04 (2001).
With the above law as a backdrop, the court finds that Meraz has failed to establish his
claims of ineffective assistance of counsel because he has failed to establish a deficient
performance by Mr. Ingram or that he was prejudiced by these alleged deficiencies of
performance.
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Claim 1: Mr. Ingram allowed Meraz to plead guilty even though Meraz did not fully
understand the terms of the appeal and collateral-attack waiver
Meraz first argues that Mr. Ingram rendered ineffective assistance of counsel by
permitting Meraz to waive his appeal and post-conviction rights while knowing that Meraz did
not fully under the terms of the waiver. (Doc. 1 at 4). Meraz contends that he would not have
pleaded guilty if he had fully understood the appeal and collateral-attack waiver. (Id.) Further,
he contends that he was prejudiced by this error because “Your Honor refused to sentence
[Meraz] under the statutory mandatory minimum sentence of 120 months imprisonment based on
findings of fact that improperly raised Meraz’s sentencing exposure with respect to the
aforementioned plea agreement and sentencing factors used to determine the proper sentence in
this matter.” (Doc. 2 at 4) (emphasis added).
The court first notes that Meraz’s prejudice argument is without merit because this court
sentenced him to the statutory mandatory minimum sentence of 120-months imprisonment.
(Doc. 38 at 9). The minimum term of imprisonment for the offense in Count Four (possession
with intent to distribute 50 grams or more of methamphetamine) is 10 years and the maximum
term of imprisonment is life. See 21 U.S.C. § 841(b)(1)(A). The court made no findings of fact
in imposing Meraz’s sentence because § 841(b)(1)(A) requires a minimum sentence of 10-years
imprisonment. Under the law, Meraz could not have received a lesser sentence. Thus, because
Meraz cannot establish a reasonable probability that, but for counsel’s deficient performance, the
result of the sentencing proceeding would have been different, Meraz cannot meet the prejudice
prong of Strickland and this claim necessarily fails.
Further, the court finds that Meraz has not established that Mr. Ingram performed outside
the wide range of reasonable professional assistance in explaining the terms of the waiver or

11

permitting Meraz to waive his appeal and post-conviction rights. Specifically, Meraz has failed
to establish any basis for the assertion that Mr. Ingram failed to explain the waiver. Instead, the
record evidence indicates that Meraz understood the terms of the plea agreement. Meraz signed a
bilingual version of the Advice of Rights Certification and initialed the section stating: “I
understand that the court must be satisfied that I completely understand the plea proceeding, and
that I accordingly have an affirmative duty to inform the court if I do not understand anything that
is said or done.” (Doc. 23 at 3 ¶ 6). Consistent with this provision, the court asked Meraz,
during the plea hearing, whether he had “any questions about [the guilty plea advice of rights
certification] that [his] attorney was not able to answer for [him],” to which Meraz responded
“no.” (Doc. 27 at 4). Additionally, the court asked Meraz whether he had “any questions
regarding the meaning of the agreement or how it might operate or what affect it might have on
you that Mr. Ingram was not able to answer to your satisfaction,” to which Meraz answered “no.”
(Id. at 9 13-18). As to any concern that Meraz did not understand the court’s questions during
the plea hearing, Meraz also verbally affirmed to the court that he would interrupt the
proceedings if he did not understand any part of the hearing, and he pleaded guilty with the
assistance of a federally certified interpreter. (Id. at 5:1-5). From Meraz’s repeated affirmations
that he understood the terms of the plea agreement and the lack of evidence supporting Meraz’s
allegations that Mr. Ingram was aware that Meraz did not fully understand the waiver, the court
finds no merit to his contention that Mr. Ingram rendered ineffective assistance of counsel as to
the waiver.
Claim 2: Mr. Ingram failed to properly advise Meraz of the collateral immigration
consequences of his guilty plea
Meraz also argues that Mr. Ingram rendered ineffective assistance of counsel by failing to

12

inform him, prior to the entry of his plea, that he would face automatic deportation after
completing his sentence. (Doc. 1 at 6). To argue that Mr. Ingram’s alleged failure to advise
Meraz of the immigration consequences of his guilty plea fell below the standard of
representation guaranteed by the Sixth Amendment, Meraz relies on Padilla v. Kentucky, 130 S.
Ct. 1473 (2010). In Padilla, the Supreme Court held that the Sixth Amendment requires counsel
to advise a client of the deportation risk of a guilty plea. 130 S. Ct. at 1486. Meraz now asserts
that he would not have pleaded guilty if he had known that he was subject to automatic
deportation. (Id. at 7). Importantly, however, Padilla was not decided until March 31, 2010, i.e.,
after Meraz pleaded guilty on May 11, 2009. Thus, Meraz seeks to retroactively apply Padilla to
the present case.
In Padilla, the Supreme Court declined to consider whether the rule that counsel advise a
client of the deportation risk of a guilty plea applies retroactively. However, the Supreme Court
has advised that a newly announced constitutional rule of criminal procedure applies
retroactively if (1) it is not a new rule, but rather an old rule applied to new facts; or (2) it is a
new rule that is substantive (not procedural in nature) or a watershed rule of criminal procedure
implicating the fundamental fairness of criminal proceedings. See Teague v. Lane, 489 U.S. 288,
310 (1989). The Third Circuit, the first federal circuit court to consider the issue, ruled in June
2011, that “because Padilla followed directly from Strickland and long-established professional
norms, it is an ‘old rule’ for Teague purposes and is retroactively applicable on collateral
review.” United States v. Orocio, 645 F.3d 630, 641 (3d Cir. 2011). However, the Fifth,
Seventh, and Tenth Circuits have subsequently held that Padilla announced a new constitutional
rule of criminal procedure, and, therefore, does not apply retroactively. See United States v.
Amer, No. 11-60522, 2012 WL 1621005, *3 (5th Cir. May 9, 2012); Chaidez v. United States,
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655 F.3d 684, 687–94 (7th Cir. 2011) cert. granted, 80 U.S.L.W. 3429 (U.S. Apr. 30, 2012) (No.
11–820); United States v. Chang Hong, 671 F.3d 1147 (10th Cir. 2011). A large number of
district courts have followed the holdings of the Seventh and Tenth Circuits. See, e.g., Ufele v.
United States, No. 86-143(RCL), 2011 WL 5830608, at *1 (D.D.C. Nov. 18, 2011); United
States v. Agoro, Nos. CR 90–102 ML, CR 91-074 ML, 2011 WL 6029888, at *7 (D.R.I. Nov. 16,
2011), accepted and adopted, 2011 WL 6034478 (D.R.I. Dec. 05, 2011); United States v. Garcia,
Nos. 2:88-cr-31–FTM-29DNF, 2:89-cr-32-FTM-29, 2011 WL 5024628, at *3 (M.D. Fla. Oct.
21, 2011); Sarria v. United States, No. 11-20730-CIV, –– F. Supp. 2d –––, –––, 2011 WL
4949724, *6 (S.D. Fla. Oct. 18, 2011); Emojevwe v. United States, No. 1:10cv229–MEF, 2011
WL 5118800 (M.D. Ala. Sept. 29, 2011), accepted and adopted, 2011 WL 5118788 (M.D. Ala.
Oct. 28, 2011); United States v. Cervantes–Martinez, No. 10cr4776 JM, 2011 WL 4434861, at
*6 (S.D. Cal. Sept. 23, 2011); United States v. Abraham, No. 8:09CR126, 2011 WL 3882290, at
*2 (D. Neb. Sept. 1, 2011).
This court follows the developing consensus that Padilla announced a new rule of
constitutional law, and, therefore, does not apply retroactively. Specifically, the court is
persuaded by the Seventh Circuit’s reasoning in Chaidez that Padilla represents a departure from
precedent rather than an old rule and that the lack of unanimity of the Padilla court indicates that
the decision announced a new rule. Chaidez, 655 F.3d at 688-89 (noting that “Padilla drew a
concurrence authored by Justice Alito and joined by Chief Justice Roberts, as well as a dissenting
opinion authored by Justice Scalia and joined by Justice Thomas”). As noted by the Seventh
Circuit, the precedent prior to Padilla indicated that an attorney was not obligated to give advice
on matters collateral to the prosecution to be competent within the Sixth Amendment. See id. at
690 (“Prior to Padilla, the lower federal courts, including at least nine Courts of Appeals, had
14

uniformly held that the Sixth Amendment did not require counsel to provide advice concerning
any collateral (as opposed to direct) consequences of a guilty plea.”). Because Padilla
announced a new rule, Meraz may not rely on it to argue that Mr. Ingram provided deficient
representation by failing to provide advice about immigration consequences of a guilty plea. As
such, this claim necessarily fails.
Moreover, the court again notes that Meraz signed the Advice of Guilty Right
Certification and specifically initialed the section stating: “I understand that, upon completion of
any term of imprisonment, I may be remanded to the custody of the United States Marshal for
surrender to an authorized Bureau of Immigration and Customs Enforcement official for
deportation proceedings in accordance with the Immigration and Nationality Act.” (Doc. 23 at 8
¶ 6). Further, Mr. Ingram testified that Meraz admitted to him that he was an illegal immigrant
and that he and Meraz “discussed during the course of this criminal case that he would likely be
deported at the conclusion of the case.” (Doc. 7-1 at 2). Additionally, the Presentence Report
indicates that, after his arrest, Meraz told Drug Enforcement Agency Agent Elden Willingham
that he had been deported in 2002 and illegally re-entered the United States in April 2005, thus
indicating his familiarity with deportation proceedings.
Claim 3: Mr. Ingram failed to properly investigate a legal or factual basis for
downward departures and variances
Third, Meraz contends that Mr. Ingram rendered ineffective assistance by failing to
properly investigate the legal and factual basis for downward departures and variances for his
sentence. (Doc. 1 at 7). Meraz specifically invokes “downward departures pursuant to U.S.S.G.
§ 5C1.2, § 2D1.1(b)(11), 18 U.S.C. § 3553(f)(1-5), Safety Valve, 5K1 & § 3553(e), § 3B1.1(a-c)
Role in Offense, and § 3553(a) variance factors.” (Id.) The court construes Meraz to invoke

15

three types of sentence reductions: (1) the so-called safety-valve reduction pursuant to 18 U.S.C.
§ 3553(f) and U.S.S.G. §§ 5C1.2, 2D1.1(b)(11); (2) the downward departure based on substantial
assistance pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. 5K1.1; and (3) general downward
variances pursuant to 18 U.S.C. § 3553(a). Meraz also mentions U.S.S.G. § 3B1.1(a), however,
this reference appears to be in error because this section includes sentencing enhancements, and
this court did not enhance Meraz’s sentence pursuant to § 3B1.1. The United States responds
that Meraz fails to submit any evidence that he was eligible for any of these sentence reductions
and, therefore, cannot prove deficient performance by counsel or prejudice.
First, Meraz clearly was not eligible for a safety-valve reduction and, therefore, he cannot
establish a deficient performance or prejudice as to this issue. (Doc. 7 at 20). The safety-valve
provision “requires a district court to sentence a defendant in certain drug-possession cases
‘without regard to any statutory minimum sentence’ if the defendant meets five criteria.” United
States v. Brownlee, 204 F.3d 1302, 1304 (11th Cir. 2000) (emphasis added) (quoting U.S.S.G. §
5C1.2(a)). The first of the five criteria is that “the defendant does not have more than 1 criminal
history point.” § 5C1.2(a)(1). At the time of sentencing, Meraz had at least four criminal history
points and a criminal history category of III. See §§ 5C1.2(a)(1) and 2D1.1(b)(11). Additionally,
as noted by the United States, Meraz did not submit that he was actually innocent of his prior
convictions or challenge their applicability to the presentence calculations. Further, within the §
2255 motion, Meraz does not challenge his prior convictions. Because Meraz was not eligible
for a safety-valve reduction, Mr. Ingram did not render ineffective assistance in failing to
investigate the factual or legal basis for the reduction.
As to a substantial-assistance departure, Meraz has not submitted any evidence indicating
that Mr. Ingram rendered a deficient performance or that Meraz had helpful information to
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provide to the United States. Instead, the record evidence indicates that Mr. Ingram arranged for
a meeting between the Government and Meraz, and that Meraz did not provide sufficient
information to the Government. During the sentencing hearing, the court questioned the
prosecutor about the possibility of a substantial-assistance departure, and the prosecutor
responded: “We have exhausted everything we could with a couple of different people. There
was (sic) a couple of individuals that he described, females, and after investigation, those were
users that we believe he had sold to. There was conflict about that.” (Doc. 38 at 7-8).
Consistent with these statements, the court sees no merit to Meraz’s contention that Mr. Ingram
failed to seek a downward departure for Meraz. Instead, Mr. Ingram arranged for Meraz to have
an opportunity to provide the United States with substantial assistance, but Meraz failed to do so.
Lastly, as to variances under § 3553(a), Meraz has failed to allege any specific facts that
would justify any such variance, or that Mr. Ingram failed to investigate the possibility for such a
variance. (Id. at 21). Instead, Mr. Ingram provided the court with a sentencing memorandum,
detailing possible variances and grounds for a reduction in the length of the sentence as well as
two letters on Meraz’s behalf. The United States also notes that because Meraz had a criminal
history category of III, including a previous felony conviction for possession of a controlled
substance, it is highly unlikely that this court would have found any justification for a reduction
based on the factors under § 3553(a). Further, as a matter of law, the court could not consider
the factors under § 3553(a) to sentence Meraz below the statutory minimum. See United States
v. Castaing-Sosa, 530 F.3d 1358, 1361 (11th Cir. 2008) (“Reading § 3553 as a whole, § 3553(a)
plainly does not confer upon the district court the authority to sentence a defendant below the
statutory mandatory minimum based on its consideration of the § 3553(a) factors.”). Only a
government motion for a substantial assistance downward departure pursuant to § 3553(e) and
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U.S.S.G. § 5K1.1 would have allowed the court to sentence Meraz below the statutory minimum.
Additionally, the court notes that Meraz benefitted tremendously from an error by the
United States. During the sentencing hearing, the prosecutor stated that “the government did fail
in this case to recognize [Meraz’s] prior in Tuscaloosa and but for that, he would be looking at
twenty years in this case statutorily. And that was just out of my incompetence because I didn’t
see the prior convictions.” (Doc. 38 at 8:5-11). Thus, by seeking a resentencing, Meraz has
risked the possibility that the United States may include the omitted conviction and seek a longer
sentence.
In sum, this court finds that the record evidence refutes Meraz’s claims that Mr. Ingram
rendered ineffective assistance of counsel. As such, an evidentiary hearing on these claims is
unnecessary.
III. CONCLUSION
For the foregoing reasons, the Motion for Production of Documents (9-64, doc. 33) and
the Motion to Vacate, Set Aside, or Correct (9-64, doc. 35; 10-8041, doc. 1) are due to be denied.
An appropriate order will be entered.
DONE, this the 14th day of June, 2012.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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