Estrella v. United States of America
Filing
25
OPINION AND ORDER denying without prejudice 5 motion for discovery and expansion of record; granting 6 Motion for Evidentiary Hearing; taking under advisement 1 Motion to vacate/set aside/correct sentence (2255) pending a hearing; denying 19 Motion to vacate/set aside/correct sentence (2255) on the merits. The entry of judgment is deferred pending a hearing. The Clerk shall appoint the next available CJA counsel to represent petitioner. The Marshal shall transport defendant from FCI Ray Brook and secure his presence in Fort Myers by October 19, 2017, and the hearing is set for October 26, 2017. A separate notice will issue. Signed by Judge John E. Steele on 9/22/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EDDY LUIS JOSE ESTRELLA,
Petitioner,
v.
Case No: 2:14-cv-583-FtM-29CM
Case No. 2:11-cr-40-FTM-29CM
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter comes before the Court on petitioner’s Motion
Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc.
#164), 1 Memorandum of Facts & Law in Support (Cv. Doc. #2), and
Affidavit (Cv. Doc. #4), all filed on October 7, 2014.
government
filed
a
Response
in
Opposition
(Cv.
Doc.
#14)
The
on
December 19, 2014, and petitioner filed a Reply (Cv. Doc. #16) on
February 19, 2015.
The original motion raises only one ground for
relief.
On March 21, 2016, petitioner filed an (amended) Motion Under
28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by
1The
Court will make references to the docket of the civil habeas
case as “Cv. Doc.”, and will refer to the docket of the underlying
criminal case as “Cr. Doc.”
a Person in Federal Custody (Cv. Doc. #19) and Memorandum of Law
Seeking Relief (Cv. Doc. #20).
The government sought to strike
this second motion as a successive petition, or for failure to
seek leave to amend.
The motion to strike was denied, petitioner
was granted leave to amend, and the Court accepted the amended
filing.
(Cv. Doc. #23.)
The government filed a Supplemental
Response (Cv. Doc. #24) on June 14, 2016.
This amended filing
raises only one additional ground for relief.
I.
On March 30, 2011, a federal grand jury in Fort Myers, Florida
returned a ten-count Indictment (Cr. Doc. #1) against defendant
Eddy Luis Jose Estrella (Estrella or petitioner) and Miguel Angel
Martinez 1.
Petitioner was charged with two counts of distributing
Oxycodone within 1000 feet of a playground (Counts One and Four)
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 860, and 18
U.S.C. § 2; knowingly carrying a firearm during and in relation to
the drug trafficking crime in Count One, and possessing said
firearm in furtherance of said drug trafficking crime (Count Two)
in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2; two counts of
being a convicted felon in possession of a firearm in and affecting
commerce (Counts Three and Ten) in violation of 18 U.S.C. §§
This co-defendant pled guilty without the benefit of a plea
agreement on July 14, 2011. (Cr. Doc. #42.) Only Miguel Angel
Martinez is named in Count Nine of the Indictment.
1
- 2 -
922(g)(1), 924(a)(2), and 2; with conspiracy to obstruct, delay,
and affect commerce by robbery (Count Five) in violation of 18
U.S.C.
§
1951(a);
for
obstructing,
delaying,
and
affecting
commerce by taking and attempting to take Oxycodone and cash for
the purchase of a firearm by force, violence, and fear of injury
from an undercover detective (Count Six) in violation of 18 U.S.C.
§§ 1951(a) and 2; with conspiracy to use and carry a firearm during
and in relation to a crime of violence , and to possess the firearm
in furtherance of the interference with commerce by robbery alleged
in Count Six (Count Seven) in violation of 18 U.S.C. § 924(o); and
for using and carrying a firearm during and in relation to a crime
of
violence,
and
possessing
the
firearm
in
further
of
the
interference with commerce by robbery charged in Count Six (Count
Eight)
in
violation
924(c)(1)(C)(i), and 2.
of
18
U.S.C.
§§
924(c)(1)(A)(ii),
On October 17, 2011, the Court issued an
Opinion and Order (Cr. Doc. #82) denying petitioner’s motion to
suppress.
A redacted Indictment (Cr. Doc. #101) was filed on
November 3, 2011, to remove the reference to Count Five within
Count Eight.
Petitioner proceeded to trial, and on November 10, 2011, a
jury returned a verdict of guilty on all counts charged.
Doc. #122.)
(Cr.
On February 13, 2012, the Court sentenced petitioner
to 78 months of imprisonment on Counts One, Three, Four, Five,
- 3 -
Six, Seven and Ten to be served concurrently, 5 years as to Count
Two to be served consecutively to Counts One, Three, Four, Five,
Six, Seven, Eight and Ten, and 25 years as to Count Eight to be
served consecutively to the term as to Counts One, Two, Three,
Four,
Five,
Six,
Seven
supervised release.
and
Ten,
all
(Cr. Doc. #129.)
was filed on February 14, 2012.
followed
by
a
term
of
Judgment (Cr. Doc. #131)
Petitioner filed a Notice of
Appeal (Cr. Doc. #133) on April 27, 2012.
On appeal, petitioner argued that that the district court
erred by denying his motion to suppress, abused its discretion by
admitting evidence of a prior robbery, and erred by denying the
motion for judgment of acquittal on Counts Two, and Five through
Eight.
Petitioner also argued that his sentence was substantively
unreasonable and unconstitutional.
The Eleventh Circuit found no
merit to any of the challenges and affirmed the convictions and
sentences, and remanded for the correction of a clerical error in
the judgment.
(Cr. Doc. #161); United States v. Estrella, 518 F.
App’x 822 (11th Cir. 2013).
The Amended Judgment (Cr. Doc. #163)
was issued on June 20, 2013.
Petitioner filed for a writ of
certiorari, which was denied on October 7, 2013.
Estrella v.
United States, 134 S. Ct. 337 (2013).
The
government
agrees
motion was timely filed.
that
petitioner’s
(Cv. Doc. #14, p. 7.)
- 4 -
original
§
2255
II.
Petitioner asserts one ground for relief in the original
motion, and one ground for relief in the amended motion.
grounds raised are as follows:
The two
(1) that he received ineffective
assistance of counsel during the plea bargaining process (Ground
One); and (2) that under Johnson v. United States, 135 S. Ct. 2251
(2015), the conspiracy to commit a Hobbs Act robbery and commission
of a Hobbs Act robbery no longer qualify as crimes of violence,
and therefore his conviction and sentence as to Count 8 must be
vacated.
A. Evidentiary Hearing Standard
A district court shall hold an evidentiary hearing on a habeas
corpus petition “unless the motion and the files and records of
the case conclusively show that the prisoner is entitled to no
relief. . . .”
28 U.S.C. § 2255(b).
“[I]f the petitioner alleges
facts that, if true, would entitle him to relief, then the district
court should order an evidentiary hearing and rule on the merits
of his claim.”
Aron v. United States, 291 F.3d 708, 714-15 (11th
Cir. 2002) (citation omitted).
However, a district court is not
required to hold an evidentiary hearing where the petitioner’s
allegations
are
patently
frivolous,
based
upon
unsupported
generalizations, or affirmatively contradicted by the record.
at 715.
Id.
See also Gordon v. United States, 518 F.3d 1291, 1301
- 5 -
(11th Cir. 2008) (a hearing is not necessarily required whenever
ineffective assistance of counsel is asserted).
To establish
entitlement to an evidentiary hearing, petitioner must “allege
facts that would prove both that his counsel performed deficiently
and that he was prejudiced by his counsel’s deficient performance.”
Hernandez v. United States, 778 F.3d 1230, 1232-33 (11th Cir.
2015).
Viewing the facts alleged in the light most favorable to
petitioner, the Court finds that an evidentiary hearing as to
Ground One only.
B. Ineffective Assistance of Counsel Standard
The legal standard for ineffective assistance of counsel
claims in a habeas proceeding is well established.
To prevail on
a claim of ineffective assistance of counsel, a habeas petitioner
must demonstrate both that (1) counsel's performance was deficient
because it fell below an objective standard of reasonableness, and
(2) prejudice resulted because there is a reasonable probability
that,
but
for
the
deficient
performance,
proceeding would have been different.
___,
134
S.
Ct.
1081,
1087-88
the
result
of
the
Hinton v. Alabama, ___ U.S.
(2014)
(citing
Strickland
v.
Washington, 466 U.S. 668, 687, 694 (1984) and Padilla v. Kentucky,
559 U.S. 356, 366 (2010)).
“Because a petitioner's failure to
show either deficient performance or prejudice is fatal to a
Strickland claim, a court need not address both Strickland prongs
- 6 -
if the petitioner fails to satisfy either of them.”
Kokal v.
Sec'y, Dep't of Corr., 623 F.3d 1331, 1344 (11th Cir. 2010)
(citations omitted).
The
proper
measure
of
attorney
performance
is
simply
reasonableness under prevailing professional norms considering all
the
circumstances.
omitted).
Hinton,
134
S.
Ct.
at
1088
(citations
“A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight,
to
reconstruct
the
circumstances
of
counsel's
challenged conduct, and to evaluate the conduct from counsel's
perspective at the time.”
Strickland, 466 U.S. at 689.
See also
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (the Court looks to
facts at the time of counsel’s conduct).
This judicial scrutiny
is
adheres
highly
deferential,
and
the
Court
to
a
strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.
90.
Strickland, 466 U.S. at 689-
To be objectively unreasonable, the performance must be such
that no competent counsel would have taken the action.
Rose v.
McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011); Hall v. Thomas, 611
F.3d 1259, 1290 (11th Cir. 2010).
Additionally, an attorney is
not ineffective for failing to raise or preserve a meritless issue.
United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992);
Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir. 1989).
- 7 -
III.
A. Ground One: Ineffective Assistance In Plea Discussions
Petitioner argues that there was at least one plea offer
extended and verbally relayed to him by counsel providing for a
sentence
exposure
of
only
15
to
20
years
of
imprisonment.
Petitioner states that counsel was deficient for failing to convey
the entire plea offer, and advising and explaining its terms to
petitioner.
Petitioner states that no hard copy of a plea offer
was provided, but it was “not expected” that the government or
counsel would contradict that the plea offer was indeed extended.
Petitioner states that he would have pled guilty but for the
ineffective assistance of counsel, and that plea terms would have
been accepted by the Court.
Petitioner argues that the government
should be required to re-offer the alleged plea proposal, and that
he should be permitted to take the proposed plea offer and enter
a plea of guilty.
Petitioner filed an Affidavit (Cv. Doc. #4) stating that Mr.
Rosenthal informed him that the government had extended a plea
offer with a sentencing exposure of 15 to 20 years, but that no
hard copy was provided and the entire offer was not conveyed or
explained.
Petitioner states that he exercised his right to
proceed before a jury based on Mr. Rosenthal’s representations
that: (1) his sentencing exposure could not exceed 20 years, (2)
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he could not be convicted of Count 2 because there were not enough
pills involved and no intent to facilitate the transaction with
the firearm, and (3) he could not be convicted of Counts 5, 6, 7,
and 8 because only $400 was involved and the government would not
be able to establish a “substantial effect on interstate commerce.”
The government concedes only that informal discussions took
place with counsel.
Count Eight carried a minimum mandatory
consecutive term of incarceration of 25 years to any sentence
imposed for Counts Five and Six, and Count Two carried a minimum
mandatory consecutive term of 5 years to any sentence imposed for
Count One.
year.
Counts One and Four had minimum mandatory terms of one
In the government’s view, based on these minimum mandatory
terms, petitioner was facing a total minimum mandatory of at least
32 years.
Counsel for petitioner sought to have Counts Two or
Eight dismissed so as to remove petitioner’s exposure to the
consecutive 25 year sentence, however this was not an option the
government was willing to exercise as it would result in too low
of a sentence.
Also, both the government and counsel recognized
that a fixed term of imprisonment would not be acceptable to the
Court.
Therefore,
the
“informal
plea
discussions
never
materialized in an offer by the United States as neither party was
willing to compromise on the charges within the indictment. . . .”
(Civ. Doc. #14, p. 5.)
Consequently, “no plea offer was made,
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either orally or in writing, by the United States.”
(Id., p. 6.)
In reply, petitioner points out that the government failed to
attach
an
affidavit
as
to
the
events
surrounding
the
plea
bargaining process, and the government acknowledges that it was
not privy to the conversations between petitioner and his counsel.
A defendant in a criminal case is entitled to effective
assistance of counsel during plea negotiations.
566 U.S. 156, 162 (2012).
Lafler v. Cooper,
For a claim that a plea would have been
accepted but for counsel’s ineffectiveness, “a defendant must show
that
but
reasonable
presented
for
the
ineffective
probability
to
the
court
that
advice
the
(i.e.,
of
plea
that
counsel
offer
the
there
would
defendant
is
a
have
been
would
have
accepted the plea and the prosecution would not have withdrawn it
in light of intervening circumstances), that the court would have
accepted its terms, and that the conviction or sentence, or both,
under the offer’s terms would have been less severe than under the
judgment and sentence that in fact were imposed.”
Id. at 164.
The government does not provide any affidavits to dispute
petitioner’s
affidavit,
and
the
record
conclusion that no plea was offered.
does
not
support
a
Therefore, the Court finds
a hearing is appropriate as to Ground One and petitioner is
entitled to an appointment of counsel for the hearing.
Governing Section 2255 Proceedings, Rule 8.
- 10 -
See Rules
B. Ground Two:
Johnson Claim
Petitioner argues that a conspiracy to commit a Hobbs Act
robbery and commission of a Hobbs Act robbery no longer qualify as
crimes of violence based on the decision in Johnson v. United
States, 135 S. Ct. 2551 (2015), made retroactively applicable on
collateral review by Welch v. United States, 136 S. Ct. 1257
(2016).
In Johnson, the United States Supreme Court held that the
“residual clause”, 18 U.S.C. § 924(e)(2)(B)(ii), of the Armed
Career Criminal Act (ACCA) was unconstitutionally vague and a
violation
of
Constitution.
the
2
Due
The
924(e)(2)(B)(i),
was
Process
Clause
not
called
the
United
clause”,
“elements
of
see
18
into
question.
States
U.S.C.
§
Petitioner’s
sentence in this case was not increased by the ACCA, but petitioner
seeks to apply the reasoning in Johnson to the residual clause
under 18 U.S.C. § 924(c).
Although the language is similar, the
Eleventh Circuit has not yet decided if Johnson applies to Section
924(c)(3)(B).
In re Pinder, 824 F.3d 977, 978 (11th Cir. 2016).
Under Section 924(c), “any person who, during and in relation
to any crime of violence or drug trafficking crime . . . uses or
carries a firearm, or who, in furtherance of any such crime,
The ACCA defines the term “violent felony” “is burglary, arson,
or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury
to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
2
- 11 -
possesses a firearm, shall” be subject to certain minimum mandatory
terms of imprisonment.
18 U.S.C. § 924(c)(1)(A).
A “crime of
violence” is defined as a felony that:
(A) has as an element the use, attempted use,
or threatened use of physical force against
the person or property of another, or
(B) that by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course
of committing the offense.
18 U.S.C. § 924(c)(3).
Petitioner was charged in Count Eight of
the Indictment as follows:
On or about January 27, 2011, in Lee
County, in the Middle District of Florida,
EDDY LUIS
MARTINEZ,
JOSE
ESTRELLA,
and
MIGUEL
ANGEL
defendants herein, aiding and abetting one
another, did knowingly use and carry a
firearm, namely a Sig Sauer, 9mm semiautomatic pistol, model P6, serial number
M443126, and an American Arms, Inc., 22
caliber semi-automatic pistol, model PX22,
serial number 043325, during and in relation
to a crime of violence for which they may be
prosecuted in a court of the United States,
and did knowingly possess said firearm in
furtherance of said crime of violence, namely,
Interference with Commerce by Robbery, in
violation of Title 18, United States Code,
Section 1951 (a), as charged in Count Six of
this Indictment, which is incorporated by
reference as though fully set forth herein.
In violation of Title 18, United States
Code,
Section
924(c)(1)(A)(ii),
Section
(c)(1)(C)(i), and Section 2.
- 12 -
(Cr. Doc. #101, pp. 4-5.)
Because this was a second or subsequent
conviction, petitioner was subject to a term of not less than 25
years under Count Eight.
See 18 U.S.C. § 923(c)(1)(C)(i).
In
Count Six, petitioner was charged as follows:
On or about January 27, 2011, in Lee
County, in the Middle District of Florida,
EDDY LUIS
MARTINEZ,
JOSE
ESTRELLA,
and
MIGUEL
ANGEL
defendants
herein,
did
knowingly
and
unlawfully obstruct, delay, and affect, and
attempt to obstruct, delay, and affect
commerce, as that term is defined in Title 18,
United States Code Section 1951 (b)(3), and
the movement of articles and commodities in
such commerce, by robbery as that term is
defined in Title 18, United States Code,
Section 1951 (b)(1), in that the defendants
did unlawfully take and attempt to take and
obtain
personal
property
consisting
of
Oxycodone and cash to be used for the purchase
of a firearm from D.L., an undercover Lee
County Sheriff's Office detective, against
said detective's will by means of actual and
threatened force, violence, and fear of
injury, immediate and future.
All in violation of Title 18,
States Code, Sections 1951(a) and 2.
(Id., pp. 3-4.)
United
The jury was instructed as to Count Six that the
element of taking by actual or threatened force or violence, or by
causing fear of harm must be proved beyond a reasonable doubt.
The jury was further instructed that Count Eight required proof
beyond a reasonable doubt that defendant committed the crime of
violence charged in Count Six, and that the firearm was used or
- 13 -
carried in relation to or possessed in furtherance of the crime of
violence.
(Cr. Doc. #121.)
As in In re Fleur 3, the Court does not have to reach the issue
of whether Johnson applies to the residual clause of Section
924(c)(3)(B) because petitioner’s conviction qualifies as a “useof-force
clause”
crime
of
violence
under
Subsection
(A).
Petitioner was found guilty in Count Six of robbery by means of
actual and threatened force, violence, and fear of injury as
defined by 18 U.S.C. § 1951(a) 4.
This was for the substantive
act of robbery, and not simply a conspiracy to commit the robbery
as charged in Count Five.
Petitioner was found guilty in Count
Eight of using and carrying a firearm during and in relation to
the crime of violence charged in Count Six 5, and possessing said
firearm in furtherance of the crime of violence in Count Six in
violation of 18 U.S.C. § 924(c)(1)(A).
As Count Six includes an
element of physical force, it qualifies as a “use-of-force clause”
3
In re Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016).
“Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in commerce,
by robbery or extortion or attempts or conspires so to do, or
commits or threatens physical violence to any person or property
in furtherance of a plan or purpose to do anything in violation of
this section shall be fined under this title or imprisoned not
more than twenty years, or both. 18 U.S.C. § 1951(a).
4
Count Five was removed as a basis by redacted Indictment (Cr.
Doc. #101).
5
- 14 -
crime of violence and the petitioner’s conviction and sentence is
“valid even if Johnson makes the § 924(c)(3)(B) residual clause
unconstitutional.”
2016).
In re Fleur, 824 F.3d 1337, 1341 (11th Cir.
See also In re Gordon, 827 F.3d 1289, 1293 (11th Cir.
2016) (collecting cases); In re Colon, 826 F.3d 1301, 1305 (11th
Cir. 2016) (finding that aiding and abetting a Hobbs Act robbery
qualifies as a crime of violence); Chatfield v. United States, No.
16-22591-CIV, 2017 WL 1066776, at *12 (S.D. Fla. Mar. 2, 2017),
report
and
recommendation
adopted,
No.
09-20870-CR,
2017
1066779 (S.D. Fla. Mar. 21, 2017) (collecting cases).
WL
Under
current precedent, Ground Two must be denied on the merits.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Petitioner’s Motion for Discovery and Expansion of the
Record (Cv. Doc. #5) is DENIED without prejudice.
2.
Petitioner’s Motion for Evidentiary Hearing (Cv. Doc.
#6) is GRANTED as to Ground One.
3.
Petitioner’s Motion Under 28 U.S.C. Section 2255 to
Vacate, Set Aside or Correct Sentence by a Person in
Federal Custody (Cv. Doc. #1; Cr. Doc. #247) as to Ground
One is taken under advisement.
4.
Petitioner’s (amended) Motion Under 28 U.S.C. Section
2255 to Vacate, Set Aside or Correct Sentence by a Person
- 15 -
in Federal Custody (Cv. Doc. #19) as to Ground Two is
denied on the merits.
The entry of judgment is deferred
pending a hearing on Ground One.
5.
The Clerk of the Court is directed to appoint the next
available CJA counsel to represent petitioner in this
matter.
6.
Appointed Counsel and defendant shall appear before the
undersigned
for
an
October 26, 2017.
7.
The
United
States
evidentiary
hearing
on
Thursday,
A separate notice will issue.
Marshal’s
Office
shall
facilitate
petitioner’s transport for the hearing from FCI Ray Brook
in
New
York
(#54500-018)
and
secure
Eddy
Luis
Jose
Estrella’s presence in Fort Myers, Florida on or before
October 19, 2017.
DONE and ORDERED at Fort Myers, Florida, this
of October, 2017.
Copies:
Petitioner
AUSA
U.S. Marshal’s Office
- 16 -
22nd
day
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