Trevino v. United States of America
Filing
16
OPINION AND ORDER. 1. Petitioner's motion to vacate, set aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255 1 is DENIED. 2. Petitioner is DENIED a Certificate of Appealability. 3. The Clerk of the Court is direct ed to terminate any pending motions, enter judgment accordingly, and close this case. 4. The Clerk of the Court is also directed to file a copy of this Order in criminal case number 2:11-cr-52-FtM-36DNF and to terminate the motion to vacate, set aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255 (Cr. Doc. 98) pending in that case. Signed by Judge Charlene Edwards Honeywell on 11/3/2015. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT TREVINO,
Petitioner,
v.
Case No: 2:14-cv-30-FtM-36MRM
UNITED STATES OF AMERICA,
Respondent.
/
OPINION AND ORDER
This cause is before the Court pursuant to Petitioner Robert Trevino’s (“Petitioner's”) 28
U.S.C. § 2255 motion to vacate, set aside, or correct a sentence (Doc. 1, filed January 21, 2014).
Petitioner also filed a memorandum and numerous exhibits in support of his petition (Doc. 2). In
response to this Court’s order to show cause (Doc. 9), the Government filed a response (Doc. 10).
Petitioner filed a reply (Doc. 14).
Petitioner asserts that: (1) trial counsel’s ineffective assistance rendered his guilty plea
involuntary; (2) trial counsel was ineffective for failing to submit written objections to the
presentence report at his sentencing hearing; and (3) the trial court erred by relying on incorrect
information to support a four level enhancement to his guidelines sentencing range (Doc. 2 at 725). Upon review of the pleadings and record, the Court concludes that Petitioner's § 2255 motion
must be denied. Because each of the claims raised in the petition was waived by the plea agreement
or is affirmatively contradicted in the record, an evidentiary hearing is not required. See Holmes v.
United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (“A hearing is not required on patently
frivolous claims or those which are based upon unsupported generalizations. Nor is a hearing
required where the petitioner's allegations are affirmatively contradicted by the record.”).
I.
Background and Procedural History
On May 25, 2011, Petitioner was indicted for conspiracy to possess with intent to distribute
and to distribute, fifty or more grams of a mixture or substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(vii) and with three
substantive distribution counts in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(vii) and 18
U.S.C. § 2 (Cr. Doc. 15). Pursuant to a written plea agreement, Petitioner pleaded guilty to the
conspiracy count, and the other charges against him were dismissed (Cr. Doc. 64; Cr. Doc. 67;
Doc. 10-1).1
At his sentencing hearing (Cr. Doc. 84), Petitioner made no objections to the factual
allegations in his presentence investigation report (“PSR”). Id. at 3. The Court adopted the
undisputed factual statements and guideline applications as contained in the PSR. Id. at 10. It was
determined that Petitioner scored a total offense level of 31 and a criminal history category of IV
under the sentencing guidelines. Id. at 8. He was sentenced to 151 months in prison which was
the bottom of the guidelines range of 151-188 months. Id. at 10.
Petitioner filed a direct appeal challenging the district court’s leadership-role enhancement
and raising claims of ineffective assistance of counsel (Cr. Doc. 76; Cr. Doc. 90). On December
7, 2012, the Eleventh Circuit dismissed the appeal because the appeal waiver in his plea agreement
barred his challenge to the district court’s leadership-role sentence enhancement and because any
claim of ineffective assistance of counsel must be raised in a 28 U.S.C. § 2255 proceeding (Cr.
Doc. 90); United States v. Trevino, 500 F. App’x 872 (11th Cir. 2012).
1
The Court will make references to the dockets in the instant action and in the related criminal
case throughout this Opinion and Order. The Court will refer to the docket of the civil habeas case
as “Doc.” and will refer to the docket of the underlying criminal case (MDFL Case No. 2:11-cr52-FtM-36DNF) as “Cr. Doc.”
2
Petitioner filed the instant § 2255 petition on January 21, 2014 (Doc. 1).
II.
Legal Standards
A.
Standard of Review
Title 28 U.S.C. § 2255 provides federal prisoners with an avenue for relief under limited
circumstances:
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to attack, may move the
court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a) (2015). If a court finds a claim under § 2255 to be valid, 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. at § 2255(b). To obtain this relief
on collateral review, a petitioner must clear a significantly higher hurdle than would exist on direct
appeal. See United States v. Frady, 456 U.S. 152, 166 (1982) (rejecting the plain error standard
as not sufficiently deferential to a final judgment).
Under § 2255(b), 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.” 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); see also Aron v. United States, 291 F.3d 708, 715
3
(11th Cir. 2002) (explaining that no evidentiary hearing is needed when a petitioner’s claims are
affirmatively contradicted by the record or patently frivolous).
B.
Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, Petitioner must show that: (1)
“counsel’s representation fell below an objective standard of reasonableness”; and (2) “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). These two
elements are commonly referred to as the performance and prejudice prongs. Reece v. United
States, 119 F.3d 1462, 1464 n.4 (11th Cir. 1997). If a petitioner fails to establish either prong, the
Court need not consider the other prong in finding that there was no ineffective assistance of
counsel. Strickland, 466 U.S. at 697.
A court must adhere to a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance. Strickland, 466 at 689–90. “Thus, a court deciding an
actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the
facts of the particular case, viewed as of the time of counsel's conduct.” Id. at 690; Gates v. Zant,
863 F.2d 1492, 1497 (11th Cir. 1989).
As observed by the Eleventh Circuit Court of Appeals:
[The test for ineffective assistance of counsel] has nothing to do with what the best
lawyers would have done. Nor is the test even what most good lawyers would have
done. We ask only whether some reasonable lawyer at the trial could have acted, in
the circumstances, as defense counsel acted at trial. Courts also should at the start
presume effectiveness and should always avoid second guessing with the benefit of
hindsight. Strickland encourages reviewing courts to allow lawyers broad
discretion to represent their clients by pursuing their own strategy. We are not
interested in grading lawyers' performances; we are interested in whether the
adversarial process at trial, in fact, worked adequately.
4
White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992) (citation omitted). Under those rules
and presumptions, “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).
The Strickland standard for evaluating claims of ineffective assistance of counsel was held
applicable to guilty pleas in Hill v. Lockhart, 474 U.S. 52, 58 (1985). It falls upon a petitioner
alleging ineffective assistance in this context to establish that counsel's performance was deficient
and that counsel's deficient performance “affected the outcome of the plea process.” Id. at 59. To
establish prejudice under the Hill test, a petitioner “must show that there is a reasonable probability
that, but for counsel's errors, he would ... have pleaded [not] guilty and would ... have insisted on
going to trial.” Id. A mere allegation by a defendant that he would have insisted on going to trial
but for counsel's errors, although required, is insufficient to establish prejudice; rather, the court
will look to the factual circumstances surrounding the plea to determine whether the defendant
would have proceeded to trial. See Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001);
United States v. Arvanitis, 902 F.2d 489, 494 (7th Cir. 1990).
III.
Analysis
A.
Claim One
Petitioner asserts that his guilty plea was involuntary and unknowing because trial counsel
failed to “adequately investigate the facts and laws pertaining to his case, in order to help him
make an informed decision whether to plead guilty or go to trial. Also, his counsel misrepresented
facts that induced him to plead guilty.” (Doc. 2 at 8). This claim appears to rest upon Petitioner's
insistence that the government did not have sufficient evidence to convict him of conspiracy
because he merely had a buyer/seller relationship with his supplier; he never organized or
5
supervised anyone within the conspiracy; and he was addicted to methamphetamines and only sold
drugs to support his addition.2 Id. at 9. Petitioner argues:
[H]ad Mr. Ostrander conducted an adequate investigation into these facts and laws
pertaining to the instant case, would have alerted him to the fact that his client was
not guilty of a conspiracy to distribute and to distribute 50 grams or more of
methamphetamine, nor was he a leader, organizer, or manager within the
conspiracy, as was alleged.
(Doc. 2 at 12).
Petitioner asserts that, because of counsel’s ineffectiveness, the Court should
vacate his sentence and resentence him without a four level enhancement for his leadership role
(Doc. 2 at 14). Any claim that Petitioner's guilty plea was unknowing and involuntary is not
supported by the record.
Petitioner signed a written plea agreement stating that he was pleading guilty to count one
of the indictment because he was, in fact, guilty (Doc. 64 at 14). He initialed each page of the
agreement which outlined the details surrounding Petitioner's and his stepson’s sale of
methamphetamines to a confidential source and undercover agent on three separate occasions. Id.
at 14-20. At the plea colloquy, Petitioner stated under oath that he read and understood the plea
agreement before he signed it; admitted selling drugs to a confidential informant on two or three
occasions; and admitted to meeting with a co-conspirator named Pato to discuss possible future
deals and money Petitioner owed Pato (Cr. Doc. 84 at 6-7, 16, 18). The Court inquired:
COURT:
All right. Now, were there other people that you sold the
methamphetamine to besides the CI?
PETITIONER:
Yes, sir.
COURT:
It says that the amount of methamphetamine involved in this
period of time was 50 grams or more. Do you believe that
to be true?
2
At his plea colloquy, Petitioner denied under oath ever having been addicted to drugs (Cr. Doc.
84 at 3-4).
6
PETITIONER:
Yes, sir.
COURT:
I’ve read the Government’s facts contained in the plea
agreement. I find that they establish a sufficient independent
basis for the acceptance of a plea of guilty.
Having heard this explanation of the effect of a plea of guilty
and its effect on your rights. Do you still desire to plead
guilty as to Count 1 of the indictment?
PETITIONER:
Yes, sir.
COURT:
Is there anything that you want to tell me or ask me or your
attorney that bears on your decision to plead guilty that’s not
already covered in this proceeding?
PETITIONER:
No, sir.
COURT:
How do you plead?
PETITIONER:
Guilty.
COURT:
Are you freely and voluntarily entering a plea of guilty to
Count 1 of the indictment?
PETITIONER:
Yes, sir.
(Cr. Doc. 84 at 18-19). The Court found that Petitioner’s plea was made freely and voluntarily
and was not the result of any force, threats, or promises other than those promises contained in the
plea agreement. Id. at 20.
To the extent Petitioner now asks this Court to reject the facts set forth in his signed plea
agreement and to ignore his sworn testimony at the plea colloquy in favor of his new-found claim
of innocence, “[s]olemn declarations in open court carry a strong presumption of verity” and
“constitute a formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison,
431 U.S. 63, 74 (1977): United States v. Stitzer, 785 F.2d 1506, 1514 n. 4 (11th Cir. 1986) (“[I]f
the Rule 11 plea taking procedure is careful and detailed, the defendant will not later be heard to
contend that he swore falsely.”). Given Petitioner's sworn testimony that he was in fact guilty of
conspiring with his stepson and Pato to distribute methamphetamine, counsel was not ineffective
7
for failing to further investigate the facts surrounding the charged crimes. See United States v.
Saac, 632 F.3d 1203, 1209 (11th Cir. 2011) (a guilty plea serves as an admission of all the elements
of a formal criminal charge). Moreover, Petitioner does not assert that he would not have pleaded
guilty and would have insisted on going to trial on all four charges in the indictment had counsel
properly investigated his case. Accordingly, in addition to failing on the performance prong,
Petitioner has not alleged or demonstrated prejudice under Hill, and Claim One fails to satisfy
either Strickland ineffectiveness prong.
Finally, Petitioner asks that the Court maintain his guilty plea, vacate his sentence, and
resentence him without a four-level enhancement. Petitioner expressly waived his right to appeal
his sentence “or to challenge it collaterally on any ground, including the ground that the Court
erred in determining the applicable guidelines range” unless the sentence exceeds the statutory
maximum, which Petitioner's does not (Cr. Doc. 64 at 12). The waiver was explained to Petitioner
at the plea colloquy, and Petitioner told the Court that he understood it (Cr. Doc. 84 at 11). If the
claim underlying an ineffective assistance of counsel claim is waived by a defendant's plea
agreement, then the ineffective assistance of counsel claim is also waived. See United States v.
Djelevic, 161 F.3d 104, 107 (2d Cir. 1998) (finding that although “dress[ed] up” as a Sixth
Amendment claim, defendant actually challenges his sentence under the guidelines and, therefore,
is barred by the plain language of the his plea agreement; to allow his claim would be to “render[]
meaningless” such plea agreement waivers); see also discussion infra Claim Two. In addition to
failing on the merits, Petitioner waived the sentencing issue raised in Claim One.
B.
Claim Two
Petitioner asserts that counsel was ineffective for failing to submit written objections to the
PSR and for failing to contest a four-level enhancement for leadership at sentencing (Doc. 2 at
8
15).3 Specifically, he argues that there was not sufficient evidence to support the enhancement
and that he did not meet co-conspirator Pato until 2007 which would have nullified the points
given for a 1996 domestic battery conviction. Id. at 17-23. 4
These issues were raised at the sentencing hearing:
COURT:
PETITIONER:
No, ma’am.
COURT:
And do you wish to make any objections to the probation
officer’s application of the guidelines?
PETITIONER:
3
Do you have any objections as to the facts contained in the
report?
My lawyer is going to take care of that, I guess.
Paragraph 47 of the PSR added four points for Petitioner's role as an organizer or leader:
Adjustment for Role in the Offense: Pursuant to USSG § 3B1.1(a), if the defendant
was an organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive, increase the offense level by four. The
facts of this case indicate that the defendant's involvement in the conspiracy was
extensive, and that the conspiracy spanned from 2005 until the defendant's arrest in
2010, and involved Methamphetamine supplied from Mexico and Atlanta, Georgia.
The defendant organized a Methamphetamine operation by maintaining control of
five or six storage facilities that were used as drug distribution points, as well as for
securing cash, over a period of five years, and in order to avoid detection by law
enforcement. The defendant also directed the criminal activities of Anthony
Merchant and Barbara Trevino. Accordingly, four points are added.
(Doc. 10 at Ex. B).
4
In support of this claim, Petitioner asserts that many of the factual assertions in the PSR and in
his signed plea agreement are false. He provides a new, more favorable, version of the facts
surrounding his crimes in a signed “declarant” attached to his petition (Doc. 2-2). However, when
specifically asked by the sentencing court whether he had “any objections as to the facts contained
in the report,” Petitioner said that he did not (Cr. Doc. 84 at 3). Petitioner is foreclosed from now
arguing that the facts contained in the PSR were incorrect. See Simmons v. United States, 777 F.
2d 660 (11th Cir. 1985) (failure to raise objections as to PSI's inaccuracy at sentencing hearing
bars raising such objections in a § 2255 petition); United States v. McCray, 567 F. App’x 859, 860
(11th Cir. 2014) (“[A] defendant cannot challenge the accuracy of his presentencing report for the
first time in a collateral attack.”); Smith v. United States, 876 F.2d 655, 657 (8th Cir. 1989) (failure
to raise challenges to presentence investigation report at sentencing precludes raising them in a §
2255 motion).
9
COURT:
Okay, Mr. Ostrander, have you had an opportunity to review
the presentence report?
COUNSEL:
Yes, Your Honor, I have.
COURT:
And do you have any objections as to the facts contained in
the report?
COUNSEL:
Your Honor, in due, course, normally, I would file written
objections where I deemed appropriate to the written report.
In the case, in this particular case, my client had a couple of
objections he wished me to raise which I discussed with him
and I would just make a record as to why I did not object.
First of all, and I brought this to the attention of the Probation
Office earlier. In Paragraph 47 , there’s a reference to a four
level increase for manager, organizer, and under the
circumstances of this case, despite the fact that my client
didn’t believe that he was organizing or managing anyone,
the discovery that had been provided to me supports the
Government’s position.
The second position that’s taken by Probation was that in the
event there was not sufficient information to support it, that
it was a particularly complex or lengthy conspiracy. Count
1 suggests that the conspiracy began in 2005. So as a result
of that, even though it was an intermittent conspiracy, as far
as what my client has told me, I still think that the law
supports the position that the Government is taking and
though my client believes in that position and wishes to
object to it, that I could not find any legal position to support
that position.
The second objection I would have raised is in Paragraph 56
regarding a domestic battery that occurred in ’96. He
pointed out to me accurately that it’s 15 years old from
today’s date, but due to the fact that the conspiracy began in
2005, that it would take it out of the 15 year exemption, and
so as much as I would like to argue for those positions
because they do save him a lot of points and a lot of time, I
don’t believe there’s a legal position that supports that and
so I have not filed a written legal position, but I wanted it to
be on the record in the event that he could do something
appropriate with it later and to – so that he would understand.
I have discussed with him before, but I think it’s kind of
difficult when a client’s told that he’s not being charged with
a bunch of crimes but the results of the crimes still end up
10
hitting him because of the conspiracy. But other than that,
there’s no objections, Your Honor.
(Cr. Doc. 84 at 3-5). The Court did not ignore Petitioner's concerns with Paragraph 47 of the PSR
or with the domestic battery charge. To the contrary, the Court required the government to address
both objections.
COURT:
Mr. Barclift, why don’t you respond then, for the record as
to the defendant's concern with regard to 47, Paragraph 47,
which is the adjustment for role in the offense.
BARCIFT:
Your Honor, we have historical information that is
corroborated by the undercover buys in this case. The
undercover buys were included in the plea agreement, and I
went back to see that we didn’t include any of the historical
information but it was included in the discovery that was
provided to Mr. Ostrander. But we have statements from at
least three other conspirators about this activity taking place
over an extended period of time. The organization did
involve at least five people. I don’t know – including Mr.
Trevino. I think I can say safely that he particularly managed
at least three of them. One was actually probably equal with
him or perhaps above him in the hierarchy. But I think it’s
an organization involving five or more persons. I don’t
know that he actually has to manage five to be on the hook
for the four level increase. But in any event, the activity
crossed state lines, even crossed international lines, occurred
over a significant period of time. So I think the probation
office has got it correctly scored.
COURT:
All right. Do you understand that, Mr. Trevino? Basically
you’ve heard from your attorney, you’ve heard from the
Government’s attorney, and in looking back through the
summary of the offensive conduct that’s contained in the
presentence report beginning with Paragraphs 7 through 35,
where the report discusses things that occurred during that
five year period, including information from sources of
information as well as another source, and of course, the
previous – the previous conviction and sentence of Anthony
Merchant, the Court would agree that indeed Probation was
correct in scoring the additional points for Paragraph 47, the
adjustment for role in the offense.
11
(Cr. Doc. 84 at 6-7). The Court also asked the government to respond to Petitioner's concerns
regarding the 1996 domestic battery charge (Cr. Doc. 84 at 7). The government noted that the
battery had occurred within ten years of the commencement of the alleged conspiracy, so was
properly counted. Id. at 7-8. The Court explained to Petitioner:
And that’s the reason it’s counted, which is why your attorney didn’t file a written
objection because he was aware that if you look at the commencement date of the
offense, the battery falls within that appropriate time period for counting it.
All right, there being no objections to the facts contained in the presentence report
other than the information that’s been provided for the record, and I think we’ve
clarified the concerns that the defendant had with regard to two paragraphs of the
presentence report, the Court adopts the factual findings as – factual statements as
its findings of fact[.]
Id. at 8.
Given that the Court addressed both of Petitioner's objections, he cannot demonstrate
Strickland prejudice from counsel’s failure to file written objections to the upward adjustments for
Petitioner's role in the conspiracy and his 1997 domestic battery conviction.
Moreover, based
upon the facts set forth in the PSR, reasonable counsel could conclude that Petitioner had been
involved in a long-term conspiracy to sell drugs in Zephyrhills, Marion County, and South Florida
that dated back to 2005 (Doc. 10-1 at Ex. B, ¶¶ 31, 33). Section 3B1.1(a) of the United States
Sentencing Guidelines provides for a four level enhancement “[i]f the defendant was an organizer
or leader of a criminal activity that involved five or more participants or was otherwise
extensive[.]” The PSR noted that the instant conspiracy lasted at least five years; the enterprise
involved the shipment of drugs from Atlanta and Mexico; Petitioner maintained control of four to
six storage facilities that were used as drug distribution points; Petitioner was dealing with at least
a half-pound of methamphetamine daily; Petitioner was in control of very large quantities of cash;
and Petitioner directed the activities of several other people (Doc. 10-1 at Ex. B at 5-10). Based
upon the facts set forth in the PSR, Petitioner has not shown that no reasonable counsel could have
12
determined that a written objection to the enhancement was unwarranted. See Roe v. FloresOrtega, 528 U.S. 470, 477 (2000) (recognizing that a court must “judge the reasonableness of
counsel’s conduct on the facts of the particular case, viewed as of the time of counsel’s conduct,”
applying a “highly deferential” level of scrutiny.”) (quoting Strickland, 466 U.S. at 690).5
Finally, in Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005), the Eleventh
Circuit Court of Appeals held that “a valid sentence-appeal waiver, entered into voluntarily and
knowingly, pursuant to a plea agreement, precludes the defendant from attempting to attack, in a
collateral proceeding, the sentence through a claim of ineffective assistance of counsel during
sentencing.” As noted by the Williams court, a decision otherwise would render the waiver
meaningless. Williams, 396 F.3d at 1342. To the extent Petitioner now urges that his sentence was
unfairly enhanced because the government used his criminal history to calculate his sentencing
range, he is attempting to do what Williams forbids him from doing. See also discussion supra
Claim One. In addition to failing on the merits, Petitioner waived the sentencing issue raised in
Claim Two.
C.
Claim Three
Petitioner asserts that the district court violated his “due process rights by relying on
materially incorrect information that lacked extrinsic corroborating evidence to support its four
level upward departure.” (Doc. 2 at 24). Specifically, Petitioner now disavows most of the factual
5
Equally unavailing is Petitioner's argument, raised for the first time in his reply, that his Sixth
Amendment Confrontation Clause rights were violated by the Court’s reliance on the PSR (Doc.
14) (citing Crawford v. Washington, 541 U.S. 36 (2004)). The Eleventh Circuit has determined
that the right to confrontation is not a sentencing right. United States v. Cantellano, 430 F.3d 1142,
1146 (11th Cir. 2005) (“Crawford dealt with trial rights and we see no reason to extend Crawford
to sentencing proceedings.”).
13
statements made in the plea agreement and in the presentence report and offers different facts that
would lead to a more favorable sentencing determination.
As explained previously, because he did not object to the PSR facts at the sentencing
hearing, Petitioner is foreclosed from now arguing that the facts contained in the report were
incorrect. See discussion supra note 4. Moreover, Petitioner's sentence-appeal waiver expressly
waived any type of collateral attack on his sentence. Therefore, because of the waiver, the Court
cannot consider Petitioner's argument that he was sentenced on the basis of materially false
information. As the Eleventh Circuit has stated, a valid sentence-appeal waiver includes “a waiver
of the right to appeal difficult or debatable legal issues - indeed, it includes a waiver of the right to
appeal blatant error.” United States v. Rubbo, 396 F.3d 1330, 1331 (11th Cir. 2005) (citing United
States v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999)); United States v. Porter, 591 F. App’x 724,
726 (11th Cir. 2014) (“[B]cause Porter knowingly and voluntarily entered into his sentence-appeal
waiver, and that sentence-appeal waiver bars his [sentencing] claim, we must dismiss his appeal
of his sentence.”). Petitioner raised this issue on direct appeal where it has already been rejected
by the Eleventh Circuit due to the waiver. Trevino, 500 F. App’x at 873 (“the appeal waiver bars
Mr. Trevino’s argument concerning the district court’s leadership-role sentence enhancement[.]”).
Claim Three is dismissed.
Any of Petitioner's allegations not specifically addressed herein have been found to be
without merit.
IV.
Certificate of Appealability
A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district
court's denial of his petition. 28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180 (2009). “A
[COA] may issue . . . only if the applicant has made a substantial showing of the denial of a
14
constitutional right.” 28 U.S.C. § 2253(c)(2).
To make such a showing, petitioner must
demonstrate that “reasonable jurists would find the district court's assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) or, that “the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Miller–El v. Cockrell,
537 U.S. 322, 336 (2003) (citation omitted). Petitioner has not made the requisite showing in these
circumstances.
Because Petitioner is not entitled to a certificate of appealability, he is not entitled to
proceed in forma pauperis on appeal.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
Petitioner's motion to vacate, set aside, or correct an illegal sentence pursuant to 28
U.S.C. § 2255 (Doc. 1) is DENIED.
2.
Petitioner is DENIED a Certificate of Appealability
3.
The Clerk of the Court is directed to terminate any pending motions, enter
judgment accordingly, and close this case.
4. The Clerk of the Court is also directed to file a copy of this Order in criminal case
number 2:11-cr-52-FtM-36DNF and to terminate the motion to vacate, set aside, or correct an
illegal sentence pursuant to 28 U.S.C. § 2255 (Cr. Doc. 98) pending in that case.
DONE and ORDERED in Tampa, Florida on November 3, 2015.
SA: OrlP-4 11/3/15
Copies: Robert Trevino
Counsel of Record
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