Mendez v. United States of America

Filing 11

ORDER denying 1 --motion to vacate/set aside/correct sentence (2255); denying a certificate of appealability and leave to proceed on appeal in forma pauperis; directing the clerk to ENTER A JUDGMENT against Mendez and to CLOSE the case. Signed by Judge Steven D. Merryday on 5/25/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.

CASE NO. 8:12-cr-446-T-23TBM
8:14-cv-771-T-23TBM

DAVID ALBERTO MENDEZ
/

ORDER
Mendez pleaded guilty to both one count of illegal re-entry after a previous
deportation for a felony offense and one count of illegal entry at a time and place
other than as designated by immigration officers. The plea was without a plea
agreement. The district court imposed a sentence of fifty-one months, a sentence
within the advisory guidelines range.
Mendez moves under 28 U.S.C. § 2255 (Doc. 1) to vacate his sentence and
alleges three grounds of ineffective assistance of counsel. The United States disputes
each ground. (Doc. 9) Even though an earlier order (Doc. 10) instructed him to
reply, Mendez filed no reply. The motion to vacate lacks merit.
FACTS1
[I]f this case were to proceed to trial, the United States is
prepared to prove beyond a reasonable doubt the defendant,
David Alberto Mendez, is a native and citizen of El Salvador.

1

Mendez agreed to the following facts when he pleaded guilty. (Doc. 30 at 16–17).

On May 7th, 1996, the defendant was convicted of sexual
battery, armed burglary, and kidnapping in Case No. 95-31008
in Dade County, Florida, on May 7th, 1996.
The defendant was deported from the United States on July
24th, 1999. The defendant re-entered the United States after the
deportation at a time and place other than as designated by
Immigration officers.
On October 9th, 2012, the defendant was found in the
Manatee County Jail, Middle District of Florida, by law
enforcement. His fingerprints were submitted through the
integrated automated fingerprint identification system and
compared with those of David Alberto Mendez taken prior to
his removal from the U.S. and the system indicated they are the
same person.
The defendant admitted that he was an alien and citizen of
El Salvador, that he was deported in 1999, and that he reentered the United States illegally in or about 2003 on foot
without seeking permission to do so. No information exists that
the defendant either requested or received permission from any
Immigration official to re-enter the United States after his
deportation and the defendant was found to be voluntarily in
the United States without having received the consent of the
Secretary for the Department of Homeland Security to reapply
for admission to the United States.

II. GUILTY PLEA
Mendez pleaded guilty and accepted the above factual basis. Tollett v.
Henderson, 411 U.S. 258, 267 (1973), holds that a guilty plea waives a nonjurisdictional defect:
[A] guilty plea represents a break in the chain of events which
has preceded it in the criminal process. When a criminal
defendant has solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he may not
thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty
plea.

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See also United States v. Broce, 488 U.S. 563, 569 (1989) (“[W]hen the judgment of
conviction upon a guilty plea has become final and the offender seeks to reopen the
proceeding, the inquiry is ordinarily confined to whether the underlying plea was
both counseled and voluntary.” A guilty plea waives a claim based on a pre-plea
event, including a claim of ineffective assistance of counsel. Wilson v. United States,
962 F.2d 996, 997 (11th Cir. 1992). However, because counsel’s alleged deficient
performance occurred after the plea, specifically, at sentencing, Mendez’s claims of
ineffective assistance of counsel are not barred by the guilty plea.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Mendez asserts claims of ineffective assistance of counsel, a difficult claim
to sustain. “[T]he cases in which habeas petitioners can properly prevail on the
ground of ineffective assistance of counsel are few and far between.” Waters v.
Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d
384, 386 (11th Cir. 1994)). Strickland v. Washington, 466 U.S. 668 (1984), governs an
ineffective assistance of counsel claim, as Sims v. Singletary, 155 F.3d 1297, 1305
(11th Cir. 1998), explains:
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
Supreme Court set forth a two-part test for analyzing ineffective
assistance of counsel claims. According to Strickland, first, the
defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
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serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

Strickland requires proof of both deficient performance and consequent
prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an
ineffective assistance claim . . . to address both components of the inquiry if the
defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305
(“When applying Strickland, we are free to dispose of ineffectiveness claims on
either of its two grounds.”). “[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Strickland, 466 U.S. at 690. “[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.”
466 U.S. at 690. Strickland requires that “in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally competent
assistance.” 466 U.S. at 690.
Mendez must demonstrate that counsel’s alleged error prejudiced the
defense because “[a]n error by counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of a criminal proceeding if the error had no
effect on the judgment.” 466 U.S. at 691S92. To meet this burden, Mendez must
show “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694.

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GROUNDS
The motion to vacate alleges three grounds of ineffective assistance of
counsel. Mendez faults counsel (1) for not objecting to a sixteen-point enhancement
under Section 2L1.2 in calculating his sentence under the guidelines, (2) for not
arguing that the pre-sentence report overstates his criminal history, and (3) for not
explaining the appeal process. As explained below, counsel’s alleged errors regarding
the determination of sentence lack merit and counsel’s alleged error regarding the
appeal process is forfeited. The last issue is addressed first.
Appeal:
In his motion to vacate Mendez faults counsel for not explaining “what an
appeal was or . . . how to appeal the sentence.” (Doc. 1 at 7) Former counsel refutes
the allegation. An earlier order directs Mendez to either “accept or reject his former
counsel’s testimony” and if he “fails to respond . . . the district court will deem the
testimony of [his] former counsel as stipulated and agreed by Mendez and review the
remaining claims in the motion to vacate.” (Doc. 10 at 2) Mendez filed no response.
As a consequence, the district court accepts former counsel’s evidence as stated in
counsel’s affidavit (Doc. 9-1 at 3–4):
I did discuss with my client his right to trial and to an appeal
although I did give him my opinion that there must be a good
faith basis for an appeal and not merely the issue of not liking
his sentence. He had no problem understanding the options
available to him including his appellate rights. It remained his
decision to enter his plea and waive his right to trial. We
discussed his options after sentencing and the only thing he and
his family were interested in was a possible lawsuit against the

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witness who refused to cooperate and failed to testify in his
behalf at sentencing.2
....
There are no notes that indicate that an appeal was desired or
requested.

In accord with the earlier order, Mendez is deemed to have agreed with
counsel’s factual representations and, as a consequence, the claim that counsel
rendered ineffective assistance lacks merit.
Sentencing:
Mendez contends that, in determining the offense level, counsel should
have objected to the sixteen-point enhancement under Section 2L1.2, United
States Sentencing Guidelines. The sixteen-point enhancement under Section
2L1.2(b)(1)(A) applies if the prior conviction was “for a felony that is . . . (ii) a
crime of violence [and] if the conviction receives criminal history points under
Chapter Four” of the guidelines. Mendez was initially sentenced to community
control and five years of probation. Affording the motion to vacate a generous
interpretation, Mendez apparently contends that Section 2L1.2 is inapplicable
because he was not originally sentenced to a term of imprisonment.
Mendez admits that during a prosecution in the State of Florida in 1995 he
pleaded guilty to sexual battery, burglary with an assault, and kidnapping. The
According to counsel’s affidavit (Doc. 9-1 at 4), Mendez expected his former
“paramour” — the victim in Mendez’s convictions for sexual battery, burglary with an assault,
and kidnapping — to testify favorably at his federal sentencing that she believed “that Mr. Mendez
should not have been prosecuted for sexual battery and that she had never been kidnapped” by him.
As discussed in the next section, Mendez hoped that his “paramour’s” testimony would favorably
influence his sentence.
2

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United States correctly argues that the consequent conviction was for a “crime of
violence.” Although not initially sentenced to a term of imprisonment, Mendez
served three months in the county jail after his probation was revoked. Mendez
received two criminal history points under Sections 4A1.1(b) and 4A1.2(k) because
(1) probation was revoked and (2) he was imprisoned for more than sixty days.
Counsel was not ineffective because counsel had no basis for challenging the sixteenpoint enhancement under Section 2L1.2.
Also, Mendez contends that counsel should have objected to Criminal History
Category II as an overstatement of his criminal history. The only criminal history
points assessed were for the sexual battery, burglary with an assault, and kidnapping.
Mendez fails to explain how Criminal History Category II overstates his criminal
history. The conclusory allegation of ineffective assistance of counsel lacks merit.
Accordingly, the motion under Section 2255 to vacate the sentence (Doc. 1)
is DENIED. The clerk must enter a judgment against Mendez and close this case.
DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Mendez is not entitled to a certificate of appealability (“COA”). A prisoner
moving under Section 2255 has no absolute entitlement to appeal a district court’s
denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must
first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant
has made a substantial showing of the denial of a constitutional right.” To merit a
certificate of appealability, Mendez must show that reasonable jurists would find
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debatable both (1) the merits of the underlying claims and (2) the procedural issues
he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478
(2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show
that reasonable jurists would debate either the merits of the claims or the procedural
issues, Mendez is entitled to neither a certificate of appealability nor an appeal in
forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Mendez must obtain permission from the circuit court to
appeal in forma pauperis.
ORDERED in Tampa, Florida, on May 25, 2017.

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