Alvarez-Zarzgoza v. United States of America
Filing
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ORDER denying the remaining grounds -- grounds two and three -- re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255). The clerk must (1) enter a judgment against Alvarez-Zarzgoza in the civil case and CLOSE the civil case and (2) ente r a copy of this order in the criminal case and deny the motion to vacate (Doc. 40) that pends in the criminal case. A certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Signed by Judge Steven D. Merryday on 9/18/2023. (RO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA,
v.
CASE NO. 8:17-cv-623-T-23SPF
8:16-cr-184-T-23SPF
BERNARDO ALVAREZ-ZARZGOZA
____________________________________/
ORDER
Alvarez-Zarzgoza moves under 28 U.S.C. § 2255 (Doc. 1) to vacate and
challenges the validity of his convictions both for conspiring to possess with the intent
to distribute cocaine, in violation of 21 U.S.C. § 841, and for possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g), for which convictions AlvarezZarzgoza was sentenced to imprisonment for 180 months as an armed career criminal. 1
The conviction and sentence accord with Alvarez-Zarzgoza’s plea agreement.
The motion to vacate alleges four grounds for relief. In addition to two other
grounds, Alvarez-Zarzgoza alleges (1) that trial counsel rendered ineffective assistance
by not appealing (ground one) and (2) that his sentence as an armed career criminal is
unlawful (ground four). An earlier order (Doc. 10) denies those two grounds and
directs the United States to respond to the remaining two grounds, which allege that
Alvarez-Zarzgoza’s sentence was later reduced under Rule 35(b), Federal Rules of Criminal
Procedure, to 135 months’ imprisonment. (Doc. 53 in 16-cr-184)
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trial counsel rendered ineffective assistance (1) by allowing him to proceed at both
his change of plea and his sentencing despite his mental condition (ground two) and
(2) by inadequately investigating his competency (ground three). In the supplemental
response the United States admits that the motion to vacate is timely (Doc. 11 at 2) and
argues that the remaining two grounds lack merit. Alvarez-Zarzgoza filed no reply to
the supplemental response.
FACTS 2
Early in the morning on March 7, 2016, a Tampa police officer saw a gold Ford
SUV stopped in the street at an intersection on a major highway in Tampa, Florida. As
he drove past the SUV, the officer noticed that the front driver-side door was open and
that the driver was slumped over. The officer pulled behind the vehicle, which was
slowly rolling into traffic. As a result, the officer used his hand to press the brake pedal
and shift the vehicle into park.
After the officer shifted the vehicle into park, Alvarez-Zarzgoza (who was the
owner, driver, and sole occupant) awakened confused and unaware of his
surroundings. The officer smelled alcohol coming from the driver. The officer asked
Alvarez-Zarzgoza if he was injured, and Alvarez-Zarzgoza responded by reaching for
the cellular phone in his pocket. As Alvarez-Zarzgoza reached for his phone, the
officer noticed a clear plastic bag in Alvarez-Zarzgoza’s front shirt pocket. When
asked, Alvarez-Zarzgoza confirmed that the bag contained marijuana. The officer
This summary of the facts derives from Alvarez-Zarzgoza’s plea agreement. (Doc. 19 at 19–21
in 16-cr-183)
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asked Alvarez-Zarzgoza to exit the SUV, and the officer searched him. During the
search, the officer found a small clear plastic bag containing a white powder, which
later tested positive for cocaine and weighed thirteen grams. Based on his suspicion
that Alvarez-Zarzgoza was intoxicated, the officer requested DUI testing, which
Alvarez-Zarzgoza failed.
Officers conducted an inventory search of Alvarez-Zarzgoza’s vehicle. Wedged
between the driver’s seat and the center console officers found a Ruger LCP .380-caliber
pistol loaded with six rounds of .380-caliber ammunition, which Alvarez-Zarzgoza
knowingly possessed. The pistol and ammunition had traveled in or affected interstate
or foreign commerce because neither the pistol nor the ammunition was manufactured
in Florida. In addition, the pistol had been reported stolen.
In recorded jail calls placed by him after his arrest, Alvarez-Zarzgoza stated why
he was arrested and said both that he had fallen asleep on the street and that the police
took the pistol he had in his vehicle.
I.
GUILTY PLEA
Alvarez-Zarzgoza pleaded guilty and admitted to the above facts. Tollett v.
Henderson, 411 U.S. 258, 267 (1973), holds that a guilty plea 3 waives a
non-jurisdictional 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
A conviction based on a plea of nolo contendere is reviewed the same as a conviction based on a
guilty plea. Wallace v. Turner, 695 F.2d 545, 548 (11th Cir. 1982).
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independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea.
This waiver of rights precludes most challenges to the conviction. “[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.” United States v. Broce, 488 U.S. 563, 569
(1989). See also United States v. Patti, 337 F.3d 1217, 1320 (11th Cir. 2003) (“Generally,
a voluntary, unconditional guilty plea waives all non-jurisdictional defects in the
proceedings.”), and Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) (“A
defendant who enters a plea of guilty waives all non-jurisdictional challenges to the
constitutionality of the conviction, and only an attack on the voluntary and knowing
nature of the plea can be sustained.”). A guilty plea waives a claim based on a pre-plea
event, including ineffective assistance of counsel. Wilson, 962 F.2d at 997.
Consequently, the entry of a guilty plea waives a claim based on an event that occurred
before acceptance of the plea, including both a substantive claim and a purported failing
of counsel (but not a jurisdictional challenge or a voluntariness challenge to the plea).
Alvarez-Zarzgoza asserts a claim of ineffective assistance of counsel that
challenges the voluntariness of his plea (ground two) and another claim that challenges
a post-plea event –– sentencing (ground three). Consequently, neither ground is barred
by the guilty plea.
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II.
STANDARD OF REVIEW
Section 2255 allows a federal prisoner to “bring a collateral challenge by moving
the sentencing court to vacate, set aside, or correct the sentence.” Winthrop-Redin v.
United States, 767 F.3d 1210, 1215–16 (11th Cir. 2014). However, “[o]nce the
defendant’s chance to appeal has been waived or exhausted, [a court is] entitled to
presume he stands fairly and finally convicted, especially when . . . he already has had
a fair opportunity to present his federal claims to a federal forum.” United States v.
Frady, 456 U.S. 152, 164 (1982). “[A] collateral challenge, such as a § 2255 motion,
may not be a surrogate for a direct appeal.” Lynn v. United States, 365 F.3d 1225, 1232
(11th Cir. 2004) (per curiam) (citing Frady, 456 U.S. at 165). Because collateral review
is not a substitute for direct appeal, a defendant must raise on direct appeal all available
claims. Relief under Section 2255 is reserved “for transgressions of constitutional rights
and for that narrow compass of other injury that could not have been raised on direct
appeal and would, if condoned, result in a complete miscarriage of justice.’” Richards
v. United States, 837 F.2d 965, 966 (11th Cir. 1988) (quoting United States v. Capua,
656 F.2d 1033, 1037 (5th Cir. Unit A Sep. 1981)).
A claim of ineffective assistance of counsel is an example of a claim that
“should usually be raised in a motion under 28 U.S.C. § 2255.” United States v. Curbelo,
726 F.3d 1260, 1267 (11th Cir. 2013).
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III.
INEFFECTIVE ASSISTANCE OF COUNSEL
Alvarez-Zarzgoza claims 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)). As Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains, Strickland
v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:
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 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
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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.
Alvarez-Zarzgoza 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 691–92. To meet this burden, Alvarez-Zarzgoza 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.
Strickland cautions that “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on investigation.”
466 U.S. at 690–91. Alvarez-Zarzgoza cannot meet his burden merely by showing that
the avenue chosen by counsel proved unsuccessful, as White v. Singletary, 972 F.2d
1218, 1220–21 (11th Cir. 1992), explains:
The test 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 . . . . We are not interested in grading lawyers’ performances;
we are interested in whether the adversarial process at trial, in fact,
worked adequately.
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IV.
GROUNDS FOR RELIEF
The two remaining grounds allege that trial counsel rendered ineffective
assistance (1) by allowing him to proceed at both his change of plea and his sentencing
despite his mental condition (ground two) and (2) by inadequately investigating his
competency (ground three). The grounds are discussed together because of their factual
and legal inter-relationship.
In ground two Alvarez-Zarzgoza contends (1) that his counsel knew (a) that,
while detained awaiting trial, he was suffering from several mental and psychological
conditions, including having delusional thoughts and (b) that he had been prescribed
nearly a dozen medications and (2) that, despite knowing about his mental condition,
his counsel allowed him to plead guilty. In ground three Alvarez-Zarzgoza contends
(1) that his plea was not entered knowingly, intelligently, and voluntarily because
counsel misrepresented Alvarez-Zarzgoza’s mental condition when he pleaded guilty
and (2) that he “was not lucid at his change of plea hearing” because the jail had denied
him his prescribed medications.
At the change of plea hearing, Magistrate Judge Elizabeth A. Jenkins canvassed
Alvarez-Zarzgoza about his psychological issues and treatment (Doc. 41 at 7–10 in 16
cr 183): 4
The Court: Have you ever been declared mentally incompetent?
Defendant Alvarez-Zarzgoza: No.
4
at 5)
Alvarez-Zarzgoza had the benefit of an interpreter during the change of plea hearing. (Doc. 41
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The Court: Have you ever been treated for addiction to drugs or
addiction to alcohol?
Defendant Alvarez-Zarzgoza: No.
The Court: Have you ever been treated for any mental illness of
any kind?
Defendant Alvarez-Zarzgoza: Yes.
The Court: Was that while you’ve been in custody in this case?
Defendant Alvarez-Zarzgoza: No.
The Court: All right. What kind of mental illness have you been
treated for in the past?
Defendant Alvarez-Zarzgoza: Schizophrenia, paranoia.
The Court: Have you taken any medicine since you’ve been in jail
on this charge?
Defendant Alvarez-Zarzgoza: No.
The Court: Have you ever been treated for addiction to drugs or
alcohol?
Defendant Alvarez-Zarzgoza: No.
The Court: Have you ever had any mental treatment beyond the
paranoid schizophrenia treatment?
Defendant Alvarez-Zarzgoza: No.
The Court: Have you ever been put in a hospital before because of
any mental condition?
Defendant Alvarez-Zarzgoza: No.
The Court: Within the past 24 hours, have you had any
medication?
Defendant Alvarez-Zarzgoza: Yes.
The Court: Okay. For what?
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Defendant Alvarez-Zarzgoza: Blood pressure.
The Court: Blood pressure. Okay. Have you had any medication
for any other condition within the past 24 hours?
Defendant Alvarez-Zarzgoza: Vitamin B-12 and vitamin D.
The Court: All right. Anything else?
Defendant Alvarez-Zarzgoza: No.
The Court: Have you had any alcohol or drugs?
Defendant Alvarez-Zarzgoza: No.
The Court: How are you feeling today?
Defendant Alvarez-Zarzgoza: Well.
The Court: Any competency concerns on the part of your client,
Ms. Gray?
Ms. Gray: No, Your Honor. I was a little concerned when I heard
of his diagnosis of paranoid schizophrenia, but I did sit down and
specifically make sure he understood the charges against him, the
Information, my role, the Court’s role, the prosecutor’s and also
the proceedings, and he has been able to assist me in his defense.
The Court: Okay. And you’ve met with him on more than one
occasion?
Ms. Gray: Yes, Your Honor.
The Court: All right. Very well. Thank you. And do you have any
concerns as to competency, Mr. George? 5
Mr. George: No, Your Honor. Thank you.
Magistrate Judge Jenkins found Alvarez-Zarzgoza competent to proceed with the
change of plea (Doc. 41 at 11 in 16-cr-183) and the district court accepted the plea.
(Doc. 25 in in 16-cr-183) The final presentence report addresses Alvarez-Zarzgoza’s
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Assistant United States Attorney Daniel George.
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“Mental and Emotional Health” and “Substance Abuse.” (Doc. 30 at 25–26 in
16-cr-183) In the sentencing memorandum (Doc. 32), defense counsel argued that
Alvarez-Zarzgoza’s substance abuse and mental illness, as supported by medical
records, justify the district court imposing the mandatory minimum sentence, which is
the sentence imposed.
Alvarez-Zarzgoza’s psychological and substance abuse issues were fully
disclosed and thoroughly discussed at both the change of plea and the sentencing.
Alvarez-Zarzgoza complains that his counsel should have done more, but he identifies
no significant fact or issue that was omitted from the earlier proceedings. Chandler v.
United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial
lawyers, in every case, could have done something more or something different. So,
omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent or
appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting Burger v.
Kemp, 483 U.S. 776, 794 (1987)). Because his assertions of ineffective assistance of
counsel are unsupported, Alvarez-Zarzgoza is entitled to relief under neither ground
two nor ground three.
The remaining grounds in the motion to vacate (Doc. 1) –– grounds two and
three –– are DENIED. The clerk must (1) enter a judgment against Alvarez-Zarzgoza
in the civil case and CLOSE the civil case and (2) enter a copy of this order in the
criminal case and deny the motion to vacate (Doc. 40) that pends in the criminal case.
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DENIAL OF BOTH
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Alvarez-Zarzgoza 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, Alvarez-Zarzgoza must show that reasonable jurists would
find 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, Alvarez-Zarzgoza is entitled to neither a certificate of appealability nor an
appeal in forma pauperis.
A certificate of appealability is DENIED. Leave to appeal in forma pauperis is
DENIED. Alvarez-Zarzgoza must obtain permission from the circuit court to appeal in
forma pauperis.
ORDERED in Tampa, Florida, on September 18, 2023.
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