Jose Antonio Simental v. United States of America

Filing 13

ORDER by Judge Christina A. Snyder: The Court DENIES Defendant/Petitioner Jose Antonio Simental's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. Section 2255 1 . (Made JS-6. Case Terminated.) (gk)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA

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Plaintiff,
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JOSE ANTONIO SIMENTAL

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Defendant.

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I.

) Case Nos. 2:15-CR-00002-CAS
2:16-CV-03784-CAS
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) ORDER
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INTRODUCTION
Defendant Jose Antonio Simental is a Mexican citizen with no legal status within

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the United States. See Cr. Dkt. 7 (“Plea Agreement”) ¶ 10.1 During the period when

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petitioner illegally resided within the United States, he committed several crimes

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resulting in deportation which are relevant to the instant motion. Cv. Dkt. 9 (“Opp’n”) at

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Simental’s criminal case was assigned case number 15-cr-0002. Simental’s

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criminal docket is cited herein as “Cr. Dkt. [X].” Simental’s civil case number is 16-cv-

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3784, generated upon Simental’s filing of the instant motion. Simental’s civil docket is

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cited herein as “Cv. Dkt. [X].”

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2–4. Simental’s prior convictions include aggravated felonies, most recently in 2003 for

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possession for sale of a narcotic controlled substance. Plea Agreement ¶ 10. After

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Simental’s imprisonment for the 2003 aggravated felony, Simental was deported to

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Mexico in 2006. Opp’n at 4. Petitioner returned to the United States almost

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immediately. Id. In 2008, the government charged Simental with illegal reentry under

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8 U.S.C. § 1326(a), (b)(2). See United States v. Jose Antonio Simental, No. 08-cr-145-

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CAS (C.D. Cal), dkt. 1 (“2008 Illegal Reentry Case”). Prior to sentencing in the 2008

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Illegal Reentry Case, Simental executed a “fast track” plea agreement. Opp’n at 4. As

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set forth in the plea agreement in the 2008 Illegal Reentry Case, Simental was sentenced

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to a low-end term of 51 months imprisonment, followed by a three-year term of

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supervised release, which included conditions that petitioner must not illegally reenter the

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United States or commit any new crimes. Id. at 5. Upon completing the prison term,

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Simental was again deported to Mexico. Id. Again, Simental illegally returned to the

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United States. Id.

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Simental violated multiple terms of his federal supervised release. Id. In addition

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to illegally returning to the United States, Simental was arrested for receiving stolen

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property in April 2014. Id. In June 2014, petitioner was taken into federal custody to

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answer the alleged supervised release violations. Id.

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On January 6, 2015, the government filed an information charging Simental with

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illegal reentry pursuant to Section 1326, along with a plea agreement signed by Simental

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and his counsel. See Cr. Dkt. 1; Plea Agreement. The 2015 plea agreement sought to

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resolve liability for (a) Simental’s supervised release violations and (b) Simental’s second

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Section 1326 illegal reentry charge. Plea Agreement ¶¶ 3–4. As part of the plea

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agreement, the U.S. Attorney’s Office (“USAO”) agreed to recommend (i) no additional

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prison time for violations of Simental’s 2008 supervised release and (ii) the termination

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of that term of supervision. Id. ¶ 4. For the 2015 illegal reentry charge, the parties

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stipulated that Simental would be sentenced to a term of imprisonment at the mid-point of

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the applicable Sentencing Guidelines range. Id. ¶ 13. The applicable Sentencing

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Guidelines range would be determined by Simental’s Total Offense Level. Id. In the

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plea agreement, Simental and the USAO calculated the Total Offense Level at 17, but

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stipulated that if Simental’s Calculated Criminal History Category was assessed at

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Category VI, instead of a lower category, then Simental’s Early Disposition Program

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Departure would be worth only two credits instead of four, bringing the Total Offense

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Level to 19. Id. ¶ 12. On May 7, 2015, the USAO filed a brief on Simental’s sentencing,

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noting that his Criminal History Category was correctly calculated at VI, bringing

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Simental’s Total Offense Level to 19 in accordance with paragraph twelve of the plea

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agreement. Cr. Dkt. 23 at 1, n.1. Therefore, the USAO recommended a sentence of

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seventy months (the mid-point of the applicable Guidelines range), followed by a new

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three-year term of supervised release, and a special assessment of $100. Id. at 1.

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On May 8, 2015, Simental’s counsel filed a sentencing memorandum arguing that

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the classification of his criminal history as Category VI was inaccurate, his proper

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category was lower, and he should be permitted to enter into the plea agreement with a

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Total Offense Level of 17 rather than 19. Cr. Dkt. 24 (“Defense Memorandum”). On

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July 6, 2015, the Probation Office issued a supplemental Presentence Report affirming

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the criminal history calculation as accurate and declining to revise the report to reflect the

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Simental’s lower calculation. Cr. Dkt. 28. On September 15, 2015, in accordance with

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the plea agreement and supplemental presentence report, the Court sentenced Simental to

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seventy months imprisonment, followed by a three-year term of supervised release, and a

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special assessment of $100. Cr. Dkt. 34. Simental did not file a direct appeal.

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On May 31, 2016, Simental filed the instant pro se motion to vacate, set aside, or

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correct his sentence pursuant to 28 U.S.C. § 2255 on the grounds of ineffective assistance

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of counsel and prosecutorial misconduct. Cv. Dkt. 1. Simental submitted a

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memorandum of points and authorities in support of his motion. Cv. Dkt. 2 (“Mot.”).

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The Court ordered the government to file an opposition no later August 8, 2016.

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Cv. Dkt. 5. The government did not file an opposition until March 1, 2017, when it

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submitted a document under seal. Cv. Dkt. 9 (“Opp’n”). On March 27, 2017, Simental

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moved to unseal the government’s response. Cv. Dkt. 10. The Court denied Simental’s

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motion to unseal the government’s response and granted an extension for Simental to file

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a reply by June 26, 2017. Cv. Dkt. 12. Simental did not file a reply.

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II.

LEGAL STANDARD

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A prisoner in custody claiming the right to be released may move the court to

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vacate, set aside or correct his sentence if he can show “that the sentence was imposed in

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violation of the Constitution or laws of the United States, or that the court was without

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jurisdiction to impose such sentence, or that the sentence was in excess of the maximum

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authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a).

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III.

DISCUSSION
In the instant Section 2255 motion, Simental alleges ineffective assistance of

counsel (“IAC”) and prosecutorial misconduct. Mot. at 1.

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A.

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As a preliminary matter, the government asserts that Simental procedurally

Whether Simental’s Claims Are Barred by Procedural Default

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defaulted on his claims, with the exception of his challenge to the constitutional adequacy

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of his counsel’s representation, by not raising them before this Court or on a direct

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appeal. Opp’n at 10.

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“Habeas review is not to substitute for an appeal.” United States v. Braswell, 501

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F.3d 1147, 1150 (9th Cir. 2007). “When a party could have raised an issue in a prior

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appeal but did not, a court later hearing the same case need not consider the matter.”

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United States v. Nagra, 147 F.3d 875, 882 (9th Cir. 1998). “Section 2255 is not designed

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to provide criminal defendants repeated opportunities to overturn their convictions on

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grounds which could have been raised on direct appeal.” United States v. Dunham, 767

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F.2d 1395, 1397 (9th Cir. 1985). “A § 2255 movant procedurally defaults his claims by

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not raising them on direct appeal and not showing cause and prejudice or actual

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innocence in response to the default.” United States v. Ratigan, 351 F.3d 957, 962 (9th

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Cir. 2003) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)). A petitioner

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shows cause for procedural default where “the claim rests upon a new legal or factual

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basis that was unavailable at the time of direct appeal.” Braswell, 501 F.3d at 1150.

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Here, Simental did not raise a claim for prosecutorial misconduct during his

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proceedings before this Court or before the Ninth Circuit on a direct appeal; indeed,

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Simental did not pursue an appeal. Furthermore, Simental has not presented any

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justification for the default or attempted to demonstrate cause and prejudice.

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Accordingly, the Court concludes that Simental is procedurally barred from raising the

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issue of prosecutorial misconduct for the first time by way of a Section 2255 motion. See

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United States v. Frady, 456 U.S. 152, 168 (1982).

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Similarly, Simental did not raise his IAC claim on an appeal. However,

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“constitutional claims may be raised in collateral proceedings even if the defendant failed

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to pursue them on appeal.” United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.

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1984). Indeed, “the customary procedure in this Circuit for challenging the effectiveness

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of defense counsel in a federal criminal trial is by collateral attack on the conviction

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under 28 U.S.C. § 2255.” Id. If the performance of petitioner’s counsel “fell below the

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standard of competency of counsel set forth in Strickland v. Washington, 466 U.S. 668

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(1989) . . . he has demonstrated cause for his procedural default.” United States v.

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Skurdal, 341 F.3d 921, 925 (9th Cir. 2003). If a petitioner succeeds in showing cause, the

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prejudice prong requires a showing that the errors at his trial “worked to his actual and

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substantial disadvantage, infecting his entire trial with error of constitutional

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dimensions.” Frady, 456 U.S. at 170 (emphasis in original).

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The Court will thus consider whether Simental’s IAC claim meets the Strickland

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test and thereby demonstrates cause and prejudice to excuse procedural default with

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regard to that claim.

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B.

Whether Simental Establishes Ineffective Assistance of Counsel

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The Supreme Court set forth a two-prong test for establishing ineffective assistance

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of counsel in Strickland. First, the defendant must show that counsel’s performance was

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deficient, and second, that the deficient performance prejudiced the defense. Strickland,

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466 U.S. at 687. With respect to the first prong, a deficient performance is one that falls

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“below an objective standard of reasonableness.” Id. at 688. “To this end, the defendant

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must identify the acts or omissions that are alleged not to have been the result of

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reasonable professional judgment.” United States v. Schaflander, 743 F.2d 714, 718 (9th

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Cir. 1984). “Judicial scrutiny of counsel’s performance must be highly deferential. . . .

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[A] court must indulge a strong presumption that counsel’s conduct falls within the wide

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range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Second, the

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defendant must affirmatively prove prejudice. Id. at 693. “He must show that there is a

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reasonable probability that, but for counsel’s unprofessional errors, the result of the

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proceeding would have been different. A reasonable probability is a probability

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sufficient to undermine confidence in the outcome.” Schaflander, 743 F.2d at 718.

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Simental argues that defense counsel provided ineffective assistance because his

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attorney: (a) “allowed the government to use prior illegal reentry convictions” to

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incorrectly enhance his Criminal History Score, Mot. at 3; (b) never provided Simental

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with a copy of the presentence report, id. at 4;2 (c) failed “to argue for departures such as

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cultural assimilation . . . and other mitigating factors,” id. at 3; and (d) failed to “[explain]

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the ramifications of the waivers in the plea,” id. at 3. The Court addresses these

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arguments in turn.

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First, in response to Simental’s argument regarding the accuracy of his Criminal

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History Score, the government contends that Simental fails to “present a cognizable claim

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as non-constitutional sentencing errors are not subject to review in a Section 2255

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proceeding.” Opp’n at 9. The Ninth Circuit has held that “allegations of such sentencing

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errors, when not directly appealed, are not generally reviewable by means of a §

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Simental attaches an email he sent to his attorney, dated August 13, 2015, in

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which he states, “I have never seen my indictment, nor have I seen the Sentencing

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Memorandum, that we or the government filed. The PSR and recommendation???

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Never seen anything.” Cv. Dkt. 1, Ex. A.

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2255 petition.” United States v. Schlesinger, 49 F.3d 483, 484 (9th Cir. 1994). However,

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if defense counsel failed to challenge a presentence report at or before sentencing, that

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omission may strengthen a claim of ineffective assistance. See United States v. Donn,

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661 F.2d 820, 824 (9th Cir. 1981). In Donn, the Ninth Circuit held that “a defense

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counsel’s failure to show his client the presentence report falls below the standard of

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reasonably competent representation. If the report contained materially false information

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that the trial court relied on in sentencing, the failure to show it to [the defendant] clearly

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was prejudicial.” Id; see also Jones v. United States, 783 F.2d 1477 (9th Cir. 1986)

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(explaining that the narrow holding of Donn applies only when the sentencing court has

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relied on the challenged information to impose a sentence not warranted by the testimony

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at trial).

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In this case, Simental’s counsel filed a sentencing memorandum that challenged

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the government’s calculation of Simental’s Criminal History Score and argued for a

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lower Total Offense Level. See Defense Memorandum. The Defense Memorandum

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states that the presentence report “accurately count[ed]” criminal history points for each

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of the offenses listed. Id. In addition, the Defense Memorandum states that “the PSR

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correctly assess[ed]” points for Simental’s prior illegal reentry conviction. Id. at 4.

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However, the Defense Memorandum reaches a lower Criminal History Score only by

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excluding, without explanation, the six offenses listed and the corresponding points

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calculated on pages 6, 8, and 10 of the presentence report. See id. at 4; Cr. Dkt. 21.

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Simental now contends that his attorney incorrectly allowed the government to add

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points from his 2008 Illegal Reentry conviction. Mot. at 5. Simental cites

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8 U.S.C. § 1325 for the proposition that improper entries are classified as petty offenses

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for which no points are to be given. Id. However, Section 1325, which assigns civil

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penalties for improper entry, does not apply in this case. Rather, Section 1326(b)(2)

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assigns criminal penalties for the reentry of certain aliens, including those previously

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removed subsequent to an aggravated felony conviction. See 8 U.S.C. § 1326. Because

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of Simental’s prior aggravated felony convictions, the government properly charged him

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under Section 1326, not Section 1325. See Cr. Dkt. 1 at 2. Accordingly, Simental’s

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argument that no points are to be given for Section 1325 offenses is incorrect. Simental

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“has not demonstrated any basis upon which a reasonable attorney would have objected

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to his presentence report . . . nor has he shown prejudice from the alleged oversight of his

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counsel.” United States v. Boubon, No. 97-15008, 1997 U.S. App. LEXIS 23681, *3

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(9th Cir. Sep. 5, 1997). “The failure to raise a meritless legal argument does not

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constitute ineffective assistance of counsel.” Baumann v. United States, 692 F.2d 565,

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572 (9th Cir. 1982).

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Second, although defense counsel may have been deficient in his failure to show

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Simental the presentence report, Simental has not shown any actual prejudice from this

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error. Simental has not made a plausible claim suggesting that the calculation of his

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Criminal History Score was false or misleading. Consequently, Simental has failed to

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show any prejudice that his lawyer could have prevented. Therefore, counsel’s

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representation “cannot be deemed ineffective” in that regard. See United States v. Lewis,

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880 F.2d 243, 246 (9th Cir. 1989) (holding counsel’s representation cannot be deemed

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ineffective where defendant had not shown that his presentencing report was inaccurate

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and thereby failed to show any prejudice).

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Third, Simental asserts that his counsel failed to request downward departures for

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cultural assimilation, “along with other sentencing factors.” Mot. at 3, 5; see U.S.S.G.

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§ 2L1.2 Application Notes at no.7. The government points out that Simental does not

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identify the “other sentencing factors” that defense counsel allegedly failed to argue.

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Opp’n at 9. Furthermore, the government asserts that “petitioner fails to establish how

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the purported error resulted in actual prejudice to him.” Id. at 10.

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Simental’s plea agreement contained a stipulation against seeking “any other

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specific offense characteristics, adjustments, departures, or variances in the sentence.”

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Cr. Dkt. 7 ¶ 15. If Simental’s attorney had breached the terms of the plea agreement to

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argue for a downward departure at sentencing, he would have raised the possibility that

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the government would seek to vacate the plea agreement, which favorably terminated

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Simental’s supervised release for his 2008 Illegal Reentry without recommending

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additional time for its violation. Considering the potential consequence for a breach of

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the plea agreement, counsel’s failure to seek a departure did not fall below an objective

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standard of reasonableness. See Escalante v. United States, No. 06-cv-280-REC, 2006

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U.S. Dist. LEXIS 21196, at *25–26 (E.D. Cal. Apr. 11, 2006) (denying defendant’s claim

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for ineffective assistance of counsel when arguing for a departure at sentencing would

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have breached the terms of the plea agreement); see also Guam v. Santos, 741 F.2d 1167,

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1169 (9th Cir. 1984) (“A tactical decision by counsel with which the defendant disagrees

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cannot form the basis of a claim of ineffective assistance of counsel.”).

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Finally, Simental contends that his counsel failed to “[explain] the ramifications of

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the waivers in the plea.” Mot. at 3. In support of his motion, Simental submits several

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emails that he sent to his attorney prior to sentencing that express “great stress and

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uncertainty” regarding the plea. Cv. Dkt. 1, Ex. A. In an email dated September 9, 2015,

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Simental writes to his attorney, “I do not understand what we are doing. I am lost here.”

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Id. Simental states that he entered the plea agreement on the belief that he would be

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released after sentencing based on paragraph four’s stipulation “to recommend no

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additional prison time . . . regarding the revocation of defendant’s supervised release.”

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Mot. at 2–3. The government argues that “petitioner had extensive experience with the

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criminal justice system and the plea process, had previously entered into a near identical

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‘fast track’ plea agreement, had certified in the current agreement that he had been

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advised of and understood its terms, and had similarly affirmed this fact during his plea

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colloquy.” Opp’n at 14–15.

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“A guilty plea cannot be attacked as based on inadequate legal advice” unless

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counsel’s advice “was not within range of competence demanded of attorneys in criminal

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cases.” Strickland, 466 U.S. at 687 (quotation marks omitted). “Counsel is strongly

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presumed to have rendered adequate assistance and made all significant decisions in the

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exercise of reasonable professional judgment.” Id. at 690. “In assessing the

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voluntariness of the plea, statements made by a criminal defendant contemporaneously

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with his plea should be accorded great weight.” Chizen v. Hunter, 809 F.2d 560, 562

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(9th Cir. 1986).

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Simental does not allege that his attorney misrepresented the sentence to be

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obtained, but argues that counsel did not explain the ramifications of the plea. Mot. at 3.

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Simental apparently believed that he would be released or deported after sentencing

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based upon paragraph four of the plea agreement, which stipulates “to recommend no

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additional prison time” for Simental’s violation of his supervised release. Mot. at 2–3.

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Simental’s contention that he did not understand that he would be subject to

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imprisonment for the Section 1326 offense belies the plain language of the plea

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agreement, which contains several pages calculating the applicable Sentencing

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Guidelines range and laying out the agreed-upon sentence of imprisonment. Plea

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Agreement ¶¶ 11–16. The plea agreement expressly provides for “a term of

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imprisonment of duration equal to the mid-point of the applicable Sentencing Guidelines

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range.” Id. ¶ 13. Simental signed and certified the plea agreement, including the

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following statements: (1) “I understand the terms of this agreement, and I voluntarily

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agree to those terms” and (2) “I am satisfied with the representation of my attorney in this

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matter.” Id. at 17. Simental does not claim that he does not understand English and

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Simental’s emails to his attorney are written in English. See Cv. Dkt. 1, Ex. A.

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Accordingly, the Court finds that Simental was aware at the time he entered into the plea

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agreement, based upon clear and express statements in that agreement, that his plea could

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result in imprisonment, and he cannot sustain an allegation of ineffective assistance on

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this basis. See, e.g., United States v. Trujillo-Chavez, No. 07-cv-08069-DDP, 2011 U.S.

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Dist. LEXIS 47674, at *13 (C.D. Cal. Apr. 26, 2011) (denying an ineffective assistance

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claim where defendant agreed at the time that he entered the plea that he understood

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various collateral consequences); United States v. Edwards, No. 15-cv-07683-SJO, 2016

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U.S. Dist. LEXIS 60098, at *32 (C.D. Cal. Feb. 29, 2016) (denying an ineffective

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assistance claim for failure to properly inform petitioner of sentence length where the

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defendant’s signed plea agreement specifically contemplated a longer sentence).

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IV. CONCLUSION
In accordance with the foregoing, the Court DENIES Simental’s motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
IT IS SO ORDERED.

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DATED: July 25, 2017

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CHRISTINA A. SNYDER
UNITED STATES DISTRICT JUDGE

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