Estrella v. United States of America
Filing
38
OPINION AND ORDER denying 1 Motion to vacate/set aside/correct sentence (2255). The Clerk shall enter judgment accordingly and as previously set forth in the 25 Opinion and Order as to Ground Two, place a copy of the judgment in the corresponding criminal case (Case No. 2:11-cr-40-FTM-29SPC), and close the civil file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 10/9/2018. (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-29SPC
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter comes before the Court on petitioner's Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by
a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #164) and
petitioner’s Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc.
#19).
In an Opinion and Order (Cv. Doc. #25) filed on September
22, 2017, the Court denied the motion as to Ground Two, found that
an evidentiary hearing was needed as to Ground One, and appointed
counsel as to Ground One.
The Court adopts and incorporates its
findings and conclusions from that Opinion and Order.
The Court held an evidentiary hearing on May 8, 2018, hearing
testimony from petitioner Eddy Luis Jose Estrella and his former
attorney, Assistant Federal Public Defender Russell Rosenthal.
(Cv. Doc. #35.)
The Court also admitted, as Court’s Exhibit 1,
the contemporaneous Memo prepared by Mr. Rosenthal of his plea
discussions with his client and the government attorneys.
The
government subsequently caused the transcript of the arraignment
to be filed. 1
The
(Cr. Doc. #200; Cv. Doc. #36.)
single
issue
presently
before
the
Court
is
whether
petitioner received effective assistance of counsel in the plea
negotiations which preceded his jury trial.
After considering the
testimony and evidence presented, the Court finds that petitioner
did
receive
the
effective
assistance
of
counsel
in
the
plea
negotiations with the government.
I.
Petitioner testified at the evidentiary hearing that he had
multiple conversations with his attorney while detained in jail.
Petitioner stated that while he understood the potential sentence
for the charges was severe, he did not comprehend the degree of
severity.
Petitioner
conceded
that
the
penalties
had
been
explained to him in court, and that he knew the maximum penalty
for several counts was life imprisonment.
Petitioner testified,
however, that he was generally unfamiliar with the federal system
and did not fully understand the consecutive “stacking” involved
1 The government indicated that it would file the transcript
for the initial appearance and the arraignment, however only the
transcript from the arraignment was filed.
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in the case.
Petitioner stated he and his attorney did not discuss
the maximum exposure he faced, or the consecutive mandatory minimum
sentences
required
by
some
of
the
counts
of
the
Indictment.
Petitioner further testified that there came a time when his
attorney told him the government had made a plea offer to him which
would limit his sentence to 15 to 20 years imprisonment and require
his
testimony
discussed
against
in-depth,
the
and
co-defendant.
no
further
counsel, according to petitioner.
ever provided.
The
details
offer
were
was
provided
not
by
No written plea agreement was
Petitioner stated that, based on conversations
with counsel and his review of discovery material, he believed he
could beat some of the counts at trial, but not all of them.
Petitioner’s co-defendant then pled guilty, and petitioner
believed the plea deal was therefore no longer available, although
he did not discuss this with his attorney.
conversation,
petitioner
had
no
further
attorney about the government’s plea offer.
for the trial.
Other than the one
discussions
with
his
Rather, they prepared
Petitioner testified that if he would have known
about the mandatory minimum sentences, he would have accepted the
government’s plea offer, including testifying against the codefendant.
Mr. Rosenthal testified that he has been involved in criminal
cases since 1981, first as an Assistant State Attorney, then in
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private practice as a criminal defense attorney, and currently for
the last sixteen years as an Assistant Federal Public Defender.
Mr. Rosenthal was subpoenaed to the evidentiary hearing by the
government, and had declined to speak with the government about
this case prior to the hearing.
Mr. Rosenthal testified he was
with petitioner at the arraignment, at which the charges were
summarized and the maximum penalties were explained.
various
conversations
with
his
client,
Mr.
Based upon
Rosenthal
knew
petitioner fully understood the penalties, including the mandatory
minimum consecutive penalties of some of the counts.
Mr.
Rosenthal
testified
that
there
came
a
point
in
the
pretrial proceedings where, after speaking with petitioner, it was
agreed petitioner would make a plea offer to the government.
Mr.
Rosenthal conveyed the following offer to the government attorney:
Petitioner would plead guilty to all counts in the Indictment
except for the second § 924(c) count, and the government would be
allowed to argue at sentencing for a sentence above the Sentencing
Guidelines calculation.
discussed
with
Mr. Rosenthal testified that, as he had
petitioner,
Mr.
Rosenthal
projected
that
the
combination of the one § 924(c) count and the other counts would
lead
to
a
Sentencing
imprisonment.
§
924(c)
Guidelines
range
of
about
eleven
years
Petitioner was aware of and understood that the two
counts
had
an
effective
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thirty-two
year
mandatory
sentence, and understood that the statutory maximum was life
imprisonment.
Mr. Rosenthal met with Assistant United States Attorneys
(AUSA) Jeffrey Michelland and Jesus Casas on the morning of May
23,
2011,
and
conveyed
petitioner’s
offer.
Mr.
Rosenthal
testified that the AUSAs immediately rejected this proposal, but
made a tentative counter-offer:
Petitioner would plead guilty to
all counts, cooperate with the government, and, if approved by
their superiors, the government would recommend a sentence not to
exceed twenty years imprisonment.
This sentence was only possible
if petitioner cooperated and the government filed a § 5K1.1 motion
under the Sentencing Guidelines allowing the Court to impose a
sentence below the mandatory statutory minimums.
Mr. Rosenthal conveyed this offer to petitioner, who rejected
it because the sentence was too long and cooperation was “a
concern.”
Petitioner told Mr. Rosenthal that petitioner did not
want to pursue the plea, and instead get ready for the then-pending
trial.
Mr. Rosenthal testified that there was no 15-20 year
proposal from the government; that he did not tell petitioner the
maximum
sentence
after
trial
could
not
exceed
20
years
imprisonment; did not tell petitioner there were not enough pills
for him to be convicted of Count Two; and did not tell petitioner
- 5 -
that he could not be convicted because there was a lack of a
substantial impact on commerce.
The strategy for trial was to argue that the government could
not establish the fact that petitioner was acting in concert with
co-defendant Mr. Martinez, which would address the robbery counts
and the second 924(c) count.
The second part of the strategy was
to argue that that petitioner should not be convicted of the first
924(c) count because petitioner handed the loaded gun to the
undercover agent and so it was not being used to protect the drugs
or for self-protection.
Mr. Rosenthal testified that he did not
concede guilt on either 924(c) count, but may have conceded the
sale count on January 20, 2011, and the possession of a firearm by
a convicted felon on January 27, 2011, in closing arguments.
Mr.
Rosenthal testified that petitioner was in agreement with the
strategy that was proposed, and counsel informed petitioner of the
consequences of the strategy, including the sentence if it failed.
Mr. Rosenthal agreed that he would have explained to petitioner
that there are no guarantees, with the exception of statutory
minimum mandatory sentences.
Petitioner never indicated to Mr.
Rosenthal that he was willing to enter a plea of guilty without a
plea agreement.
On
April
6,
2011,
petitioner
and
his
co-defendant
were
arraigned with counsel before a district judge on the charges in
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the Indictment.
Among other things, the charges were summarized
for defendants, and the penalties were set forth.
Petitioner was
told that Counts 1 through 4 carried a mandatory minimum term of
one year to forty years imprisonment; Count Two carried a mandatory
minimum term of seven years to life imprisonment consecutive to
other terms of imprisonment imposed; Count Three carried a term of
up to ten years imprisonment; Counts Five through Seven carried
terms of up to twenty years imprisonment; Count Eight carried a
mandatory minimum term of twenty-five years to life consecutive to
any other term of imprisonment imposed; and Count Ten carried
term of up to ten years imprisonment.
a
(Cr. Doc. #200, pp. 8-9.)
Petitioner told the district judge that he understood the charges
in the Indictment and understood the possible penalties.
(Id. at
10.)
Petitioner
was
sentenced
to
a
term
of
78
months
of
imprisonment as to Counts 1, 3, 4, 5, 6, 7, and 10, each count to
be
served
concurrently,
a
consecutive
term
of
5
years
of
imprisonment as to Count 2, and a term of 25 years as to Count 8,
to be served consecutively to Counts 1, 2, 3, 4, 5, 6, 7, and 10.
(Doc. #139, p. 69.)
II.
At the May 8, 2018, evidentiary hearing, post-conviction
counsel argued that the only issue for the Court is to resolve
- 7 -
whether
petitioner
rejecting,
and
clearly
the
understood
sentencing
the
plea
consequences.
offer
As
he
was
previously
outlined by the Court,
A defendant in a criminal case is entitled to
effective assistance of counsel during plea
negotiations. Lafler v. Cooper, 566 U.S. 156,
162 (2012).
For a claim that a plea would
have
been
accepted
but
for
counsel’s
ineffectiveness, “a defendant must show that
but for the ineffective advice of counsel
there is a reasonable probability that the
plea offer would have been presented to the
court (i.e., that the defendant 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.
(Cv. Doc. #25, p. 10.)
The Court finds that the credible evidence
in the case establishes that petitioner was provided with effective
assistance of counsel prior to trial and in the communication of
plea offers with the government attorneys.
The Court accepts the testimony of Mr. Rosenthal in all of
its factual aspects, including those areas where it conflicts with
the testimony of petitioner.
The Court finds that petitioner’s
interest in the outcome of the case gave him the incentive to
testify in a manner which was not true as to certain critical
matters.
Further,
petitioner’s
responses
at
the
arraignment
regarding the potential sentences, and what was stated at the
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evidentiary hearing reflect an inconsistency.
The Court also
finds that the testimony of Mr. Rosenthal was more credible because
it was corroborated by his contemporaneous written Memo as to the
events, and the record of the court proceedings.
Specifically, the Court finds:
(1) petitioner was accurately
advised by the Court of the maximum penalties as to all counts at
the
arraignment;
arraignment
that
(2)
he
petitioner
understood
advised
these
the
Court
the
penalties;
maximum
at
(3)
petitioner received the close attention of counsel during the pretrial phase of the case; (4) defense counsel fully and accurately
discussed and explained the maximum penalties to petitioner, and
petitioner accurately understood these penalties, including the
mandatory
statutory
sentences
and
the
requirement
of
the
consecutive imposition for some of the counts; (5) defense counsel
fully
conveyed
petitioner’s
plea
offer
to
the
government
attorneys, which was rejected; (6) defense counsel fully and
accurately
conveyed
petitioner,
implications
and
of
the
fully
the
government’s
and
accurately
proposal;
(7)
tentative
conveyed
petitioner
plea
the
offer
to
sentencing
rejected
the
government’s tentative offer because the sentence would have been
too long, and he thought he could prevail on some of the counts at
trial.
- 9 -
The plea offer was presented in May 2011, and petitioner
rejected the offer.
Without a “reasonable probability” that he
would have accepted the deal, there can be no prejudice.
Reeves
v. United States, 665 F. App'x 833, 836 (11th Cir. 2016), cert.
denied, 137 S. Ct. 1447, 197 L. Ed. 2d 658 (2017).
The Court
concludes that counsel was not deficient, and further that there
was
no
prejudice
because
the
testimony
does
not
reflect
a
reasonable probability that petitioner would have accepted the
plea offer.
Accordingly, it is hereby
ORDERED:
1. Ground One of 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), previously
taken under advisement pending a hearing, is DENIED.
2. The Clerk of the Court shall enter judgment accordingly
and as stated in the September 22, 2017 Opinion and Order
(Cv. Doc. #25) as to Ground Two, and close the civil file.
The Clerk is further directed to place a copy of the civil
Judgment in the criminal file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN
FORMA PAUPERIS ARE DENIED.
A prisoner seeking a writ of habeas
- 10 -
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, 183 (2009).
“A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(B)(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)(citations omitted).
Petitioner has not made the
requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED at Fort Myers, Florida, this
October, 2018.
Copies:
Petitioner
AUSA
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9th
day of
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