Hernandez v. United States of America

Filing 7

ORDER denying Hernandez's 1 motion to vacate, set aside, or correct his sentence. A certificate of appealability and leave to appeal in forma pauperis are DENIED. The Clerk is DIRECTED to enter judgment against Hernandez, docket a copy of this Order in the criminal action, and CLOSE this case. Signed by Judge Mary S. Scriven on 5/9/2022. (JT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOSE GREGORIO HERNANDEZ,
Movant,

Case No. 8:21-cv-1856-MSS-AAS

v.

Crim. Case No. 8:19-cr-396-MSS-AAS

UNITED STATES OF AMERICA,
Respondent.
________________________________/
ORDER
Hernandez moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255
(Doc. 1), the United States responds (Doc. 5), and Hernandez replies. (Doc. 6) After
reviewing these documents and the record in the criminal action, the Court DENIES
Hernandez’s motion.
PROCEDURAL HISTORY
A grand jury indicted Hernandez with conspiracy to distribute and to possess with
intent to distribute five kilograms or more of cocaine while upon the high seas on board a
vessel subject to the jurisdiction of the United States, and aiding and abetting the possession
with intent to distribute five kilograms or more of cocaine while upon the high seas on board
a vessel subject to the jurisdiction of the United States. (Crim. Doc. 16) Hernandez pleaded
guilty to the drug conspiracy count pursuant to an agreement with the United States. (Crim.
Doc. 208) The United States agreed to dismiss the aiding and abetting count, to recommend
a downward adjustment for acceptance of responsibility, and to not oppose Hernandez’s
request for a sentence at the low end of the sentencing guideline range. (Crim. Doc. 208 at

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3–5) This Court departed downward and sentenced Hernandez to ninety-six months in prison
and five years of supervised release. (Crim. Doc. 450) Hernandez did not appeal.
The parties stipulated to the following factual basis (Doc. 5-1 at 36–38):
[Prosecutor:]

On August 27, 2019, a Venezuelan flagged
fishing vessel, was interdicted by a Dutch
— Netherlands Majesty’s Ship Groningen,
with a detachment of United States Coast
Guard law enforcement on board in
international waters of the Caribbean Sea,
approximately 42 nautical miles north of
Puerto Cabello, Venezuela. There were 14
mariners on board.
As the HNLMS Groningen launched their
over-the-horizon vessels with the Coast
Guard detachment onboard to make
contact with the fishing vessel and conduct
a right of approach questioning, the law
enforcement vessel observed the fishing
vessel Maria Purisima jettisoning packages
off the vessel.
The HNLMS Groningen briefed Coast
Guard District 7, about the claimed
registry for the vessel, the Maria Purisima
as being flagged in Venezuela, the
government of Venezuela was contacted
and confirmed that the vessel was in fact
flagged — registered in the government —
with the government of Venezuela.
The Groningen over-the-horizon vessel
recovered 12 of the jettisoned packages and
narcotics identification kit tests were
conducted on those substances and
resulted in positive hits of cocaine with an
at-sea weight of 390 kilograms.
Fourteen crew members were identified as
being onboard the fishing vessel Maria
Purisima. They were Jose Gregorio
Hernandez Vasquez, Kelvin Alejandro
Gonzalez Noriega, Emeterio Ramon

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Marcano, Rogelio Ramon Narvaez,
Nelson Jose Fermin Marcano, Anderson
Jose Ardarcia Pino, Steven Jhoan Aguilera
Level, Ruben Rafael Vasquez Vasquez,
Luis Ramon Narvaez, Daniel Vasquez,
Jose Romero, Oliver Marin, Ruben Marin,
and Diosser Irlander Gaona Murillo,
would be the 14 individuals.
On August 29, 2019, the Government of
Venezuela waived jurisdiction of the
vessel, crew, and contraband and the
detainees were brought to the Middle
District of Florida.
In his Section 2255 motion (Doc. 1 at 4–6), Hernandez asserts that trial counsel was
ineffective for not objecting to the venue of the criminal prosecution (Ground One) and for
not objecting to the subject matter jurisdiction of this Court. (Ground Two) Hernandez further
asserts that his guilty plea was unknowing and involuntary because trial counsel did not advise
him that the venue of the criminal prosecution was improper. (Ground Three). (Doc. 1 at
7–8) The United States concedes that the motion is timely but asserts that the claims are
meritless. (Doc. 5)
Hernandez attaches to his Section 2255 motion an affidavit. (Doc. 1-1) In the affidavit,
he swears that the U.S. Coast Guard transported him to Puerto Rico, transferred him to
Miami for questioning, and transferred him to Tampa to face prosecution. (Doc. 1-1 at 1–2)
He contends that he told his court-appointed attorney that Dutch authorities interdicted him
while he was in a Venezuelan economic zone. (Doc. 1-1 at 2) He asked his attorney how the
United States could prosecute him, and his attorney responded that the United States could
“do whatever they want.” (Doc. 1-1 at 2) He learned that “there lies a possibility that the
United States did not have jurisdiction over the vessel as the vessel was not stateless.” (Doc.
1-1 at 2) Also, he learned that “Congress amended the venue law in 2017 stating that one

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should be prosecuted in the district in which they arrived or the District of Columbia.” (Doc.
1-1 at 2–3)
STANDARD OF REVIEW
Hernandez asserts ineffective assistance of counsel — a difficult claim to sustain.
Strickland v. Washington, 466 U.S. 668, 687 (1984) explains:
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.
“There is no reason for a court . . . to address both components of the inquiry if the defendant
makes an insufficient showing on one.” Strickland, 466 U.S. at 697. “[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.” Strickland, 466 U.S. at 690.
“An 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.”
Strickland, 466 U.S. at 691. To demonstrate prejudice, the defendant must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 691. A reasonable probability
is a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694. Strickland cautions that “strategic choices made after thorough investigation of law and

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facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at
690–91. A defendant cannot meet his burden by showing that the avenue chosen by counsel
was unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992).
“Where . . . a defendant is represented by counsel during the plea process and enters
his plea upon the advice of counsel, the voluntariness of the plea depends on whether
counsel’s advice ‘was within the range of competence demanded of attorneys in criminal
cases.’” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting McMann v. Richardson, 397 U.S.
759, 771 (1970)). “[W]hen a defendant claims that his counsel’s deficient performance
deprived him of a trial by causing him to accept a plea, the defendant can show prejudice
by demonstrating a ‘reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.’” Lee v. United States, 137 S. Ct.
1958, 1965 (2017) (quoting Hill, 474 U.S. at 59).
MERITS
Ground One
Hernandez asserts that trial counsel deficiently performed by not objecting to venue.
(Doc. 1 at 4) He contends that he entered the United States in Miami, Florida and was
transferred to Tampa to face prosecution. (Doc. 1 at 4) He claims that 46 U.S.C.
§ 70504(b)(1) required the United States to prosecute him in the district where he entered the
United States or in the District of Columbia. (Doc. 1 at 4) The United States correctly
responds that Congress amended Section 70504(b) to permit prosecution in any district. (Doc.
5 at 6–7)
The indictment charged Hernandez with two counts. (Crim. Doc. 16 at 1–3) The
conspiracy count charged Hernandez with violating 21 U.S.C. § 960(b)(1)(B)(ii) and

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46 U.S.C. §§ 70503(a) and 70506(a) and (b). (Crim. Doc. 16 at 1–2) The aiding and abetting
count charged Hernandez with violating 18 U.S.C. § 2, 21 U.S.C. § 960(b)(1)(B)(ii), and
46 U.S.C. §§ 70503(a) and 70506(a). (Crim. Doc. 16 at 2–3) Both counts charged Hernandez
with committing the offenses on August 27, 2019, while upon the high seas. (Crim. Doc. 16
at 1–3)
In 2017, Congress amended 46 U.S.C. § 70504(b) as follows:
A person violating section 70503 or 70508 —
(1)

shall be tried in the district in which such offense
was committed; or

(2)

if the offense was begun or committed upon the
high seas, or elsewhere outside the jurisdiction of
any particular State or district, may be tried in any
district.

At the change of plea hearing, Hernandez stipulated that authorities interdicted the boat near
Venezuela. (Doc. 5-1 at 42–44) Even if Hernandez entered the United States in Miami,
Florida, the United States could prosecute him in any district. 46 U.S.C. § 70504(b) (2019).
Because this Court would have overruled an objection to venue, trial counsel was not
ineffective. Denson v. United States, 804 F.3d 1339, 1342 (11th Cir. 2015) (“Failing to make a
meritless objection does not constitute deficient performance.”).
In his reply (Doc. 6 at 2), Hernandez argues that a court must interpret 46 U.S.C.
§ 70504(b) “in pari materia” with 18 U.S.C. § 3238 which states:
The trial of all offenses begun or committed upon the high seas,
or elsewhere out of the jurisdiction of any particular State or
district, shall be in the district in which the offender, or any one
of two or more joint offenders, is arrested or is first brought; but
if such offender or offenders are not so arrested or brought into
any district, an indictment or information may be filed in the
district of the last known residence of the offender or of any one
of two or more joint offenders, or if no such residence is known

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the indictment or information may be filed in the District of
Columbia.
Because the indictment charged Hernandez with violating 46 U.S.C. § 70503(a) (Crim. Doc.
16 at 1–3), Section 70504 — which applies to “[a] person violating Section 70503” — governs.
Because Section 70504 unambiguously governs and permits prosecution in any district, the
Court does not rely on a canon of construction to interpret the statute. United States v. Warren,
820 F.3d 406, 408 (11th Cir. 2016) (“Courts generally apply in pari materia only when a legal
text is ambiguous.”).
Ground One is DENIED.
Ground Two
Hernandez asserts that trial counsel deficiently performed by not objecting to subject
matter jurisdiction of the prosecution. (Doc. 1 at 5) He contends that Dutch authorities
interdicted the boat in a Venezuelan economic zone, the boat flew a Venezuela flag, and he
told authorities that he was Venezuelan. (Doc. 1 at 5) He argues that, because the United
States and Venezuela have no diplomatic ties, Venezuela could only have conferred
jurisdiction on the Netherlands, the country that interdicted the boat. (Doc. 1 at 5)
At a status conference before Hernandez’s plea, the Court heard argument from
counsel for Hernandez and counsel for his co-defendants concerning subject matter
jurisdiction. (Doc. 184 at 1) In a pretrial order, the Court summarized this procedural history
and directed the United States to prove subject matter jurisdiction (Crim. Doc. 188 at 1–2)
(record citations and bolding omitted):
At the status conference held on November 15, 2019, Defendants
advised the Court of an issue with the Court’s jurisdiction under
the Maritime Drug Law Enforcement Act, 46 U.S.C. § 70501 et
seq (“MDLEA”) . . . . Thus, the Court set this matter for a date
certain trial to begin on Monday, November 18, 2019,

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conditioned on the Government’s ability to prove the Court’s
jurisdiction as required under the MDLEA. . . .
At the conclusion of the status conference, the Government filed
a State Department Certification “for the purpose of the Court
making a judicial determination that the vessels in question were
subject to the jurisdiction of the United States of America.” The
Court has not had an opportunity to thoroughly evaluate this
filing, and, until it does, it cannot ascertain jurisdiction.
Accordingly, the Court finds it necessary to continue this matter
pending a review of the State Department Certification for
purposes of ascertaining its jurisdiction over the vessel in
question. The Government is directed to disclose to Defendants
and to file under seal, on or before the close of business on
Wednesday, November 27, 2019, the August 28, 2019 and
August 29, 2019 correspondence referenced in the State
Department Certification at paragraphs d and e.
The prosecutor complied with the Court’s order and filed under seal the correspondence
referenced in the State Department Certification. (Docs. 189, 190, 191, 198)
Before Hernandez pleaded guilty, this Court reviewed the documents and a
memorandum of law submitted by the prosecutor (Crim. Doc. 194) and determined that the
United States established subject matter jurisdiction (Crim. Doc. 205 at 2–3) (record citations
omitted):
For the reasons that follow, the Court determines that it has
jurisdiction over the Defendants.
Under the MDLEA, jurisdictional issues “are preliminary
questions of law to be determined solely by the trial judge.”
46 U.S.C. § 70504. A “covered vessel” under the MDLEA is “a
vessel of the United States or a vessel subject to the jurisdiction
of the United States.” 46 U.S.C. § 70503(e)(1). A “vessel subject
to the jurisdiction of the United States” includes “a vessel
without nationality” and “a vessel registered in a foreign nation
if that nation has consented or waived objection to the
enforcement of United States law by the United States.”
46 U.S.C. § 70502(c)(1)(A), (C). Consent or waiver of objection
by a foreign nation “is proved conclusively by certification of the
Secretary of State or the Secretary’s designee.” Id. at
§ 70502(c)(2)(B).

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The very concept of a conclusive proof entails not
only that no detail or corroboration is needed, but
also that any contrary evidence is futile. If a
document states a proposition, a party introduces
evidence that contradicts or undermines the
proposition, and a court thereby inquires whether
the proposition is true, then the court treats the
document at most as establishing a rebuttable
presumption of the proposition’s truth, but not as
conclusively proving its truth. Congress instructs
specifically that courts should treat the MDLEA
certification as conclusive of the foreign nation’s
response.
United States v. Hernandez, 864 F.3d 1292, 1300 (11th Cir. 2017).
The Eleventh Circuit has articulated that the conclusive proof
provision of the MDLEA forecloses any need for details or
corroborations and any inquiry into the certification’s veracity.
Id.
The Department of State Certification filed by the Government
in this case, certifies as follows: based on a claim of Venezuelan
registry for the vessel MARIA PURISIMA which was flying a
Venezuelan flag at the time of the interdiction in this case, the
Government requested that the Government of Venezuela
confirm whether the vessel was registered in Venezuela and, if so
registered or if Venezuela could not confirm registration but had
grounds to presume that it may be registered in Venezuela,
authorize the United States to stop, board, and search the suspect
vessel, cargo, and crew. Venezuela authorized said interdiction,
boarding, and search. On August 28, 2019, the United States
requested that Venezuela consent to United States’ jurisdiction,
and on August 29, 2019, Venezuela waived its primary right to
exercise jurisdiction over the MARIA PURISIMA, its crew, and
cargo, to the extent necessary for the enforcement of United
States law.
Based on the Department of State Certification, the Court finds
that the jurisdictional issues surrounding the vessel have been
conclusively established and that jurisdiction in this case is
proper.
Because trial counsel objected to and secured a ruling on subject matter jurisdiction
before Hernandez pleaded guilty, Hernandez fails to demonstrate deficient performance and

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prejudice under Strickland. Burt v. Titlow, 571 U.S. 12, 17 (2013) (“We have said that . . . the
burden to ‘show that counsel’s performance was deficient’ rests squarely on the defendant.”)
(quoting Strickland, 466 U.S. at 687); Wong v. Belmontes, 558 U.S. 15, 27 (2009) (“Strickland
places the burden on the defendant, not the State, to show a ‘reasonable probability’ that the
result would have been different.”) (citing Strickland, 466 U.S. at 694).
Ground Two is DENIED.
Ground Three
Hernandez asserts that his guilty plea was unknowing and involuntary because neither
trial counsel nor this Court advised him that (1) the defense could have challenged venue at
trial and (2) the Court should have determined jurisdiction. (Doc. 1 at 7) He contends that he
would have insisted on exercising his right to trial if either trial counsel or the Court had
properly advised him. (Doc. 1 at 7)
“As with resolving other important elements contained in a charge, a jury must decide
whether the venue was proper.” United States v. Snipes, 611 F.3d 855, 866 (11th Cir. 2010).
However, as explained above, because venue was proper, Hernandez cannot demonstrate
either that trial counsel deficiently advised him before his plea or that “he would not have
pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 56, 59.
Also, the record conclusively refutes Hernandez’s claim that neither trial counsel nor
this Court advised Hernandez that the Court should have determined jurisdiction. Before
Hernandez pleaded guilty, the Court determined that the United States established subject
matter jurisdiction. (Crim. Doc. 205 at 2–3)
At the change of plea hearing before Judge Amanda Sansone, Hernandez raised a
question about jurisdiction. Judge Sansone advised Hernandez that the Court had determined

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jurisdiction and that Hernandez would have to abandon his challenge to jurisdiction to plead
guilty (Doc. 5-1 at 42–44):
[Court:]

Okay. Let me turn to you Mr. Hernandez
Vasquez. Were you listening when [the
prosecutor] summarized the facts of the
case?

[Hernandez:]

Yes.

[Court:]

Do you have any disagreement with any of
the facts that [the prosecutor] said?

[Hernandez:]

With everything.

[Court:]

You disagree with everything that [the
prosecutor] said or you agree with
everything [the prosecutor] said?

[Hernandez:]

The attorney.

[Court:]

No, [the prosecutor], the attorney for the
government,
the
gentleman
that
summarized the facts of this case, do you
— do you — were you listening when he
summarized the facts of the case?

[Hernandez:]

Yes. There’s a part that I don’t agree with,
the part about the nautical miles, about the
42 nautical miles.

[Court:]

Do you think it was — where do you think
the boat was?

[Hernandez:]

Because Venezuela also has its own
territory. We weren’t 42 nautical miles
away from Venezuela, we were close
enough that we could see the hills, the dirt
—

[Court:]

But let me stop you for one second, Mr.
Hernandez Vasquez. Do you dispute that
you were in international waters or do you
agree that you were in international
waters?

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[Hernandez:]

Well, according to U.S. laws, yes, we were.
But I want to be told about Venezuelan
territory, their jurisdiction, the territory
where one can fish.

[Court:]

But it’s — from what [counsel for a codefendant] was saying, there have been
some fights over jurisdiction and whether
the United States government had
jurisdiction, but those have already been
decided in favor of the government. Do
you understand that?

[Hernandez:]

Yeah, and here’s the jurisdiction. Why is it
that these paragraphs are blocked off?

[Court:]

I don’t know why those paragraphs are
blocked off, but what you have to decide is
if you want to plead guilty today or not,
and if you’re going to plead guilty, then
you’re admitting to the jurisdiction and so
then you can no longer contest the
jurisdiction. So the decision that was made
in favor of the government, you would
have to just let that decision stay and you
would not be able to appeal that decision.
So it’s up to you to make the decision of if
you want to plead guilty today. If so, then
you need to abandon the arguments on
jurisdiction, then you could — you could
go forward at — well, I guess you could
plead guilty in other ways where you
preserve your right to appeal the prior
decision about jurisdiction. So what is it
you want to do today?

[Hernandez:]

No, I — I’ll plead guilty.

[Court:]

So then other than the jurisdiction issue
that you had concerns about, Mr.
Hernandez Vasquez, is there anything else
in the facts that [the prosecutor]
summarized that you disagree with? [The
prosecutor], the attorney for the

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government, anything else in the facts that
he stated that you don’t agree with?
[Hernandez:]

No, it’s all right. It’s all right.

Also, trial counsel confirmed that he had researched and raised the challenge to
jurisdiction (Doc. 5-1 at 45–46):
[Court:]

Let me ask you, [trial counsel], are you
satisfied that Mr. Hernandez Vasquez is
pleading guilty knowingly and voluntarily
with a full understanding of all the
consequences of his guilty plea?

[Counsel:]

Yes.

[Court:]

Anything that you think we should have
covered that we did not cover?

[Counsel:]

I do want to address a couple of things.
Number one, we researched the issue and I
led the charge for a total of eight defense
attorneys at what we thought — what [ ]
appeared what was going to be a status
conference that turned into a two and a half
hour hearing on jurisdiction. The
jurisdiction issue is irrelevant. Once the
United States under Article II, once the
President recognized the country’s
government, that’s the end of the inquiry
and we do have case law on that that we
presented to the district court and so that is
a dead issue at this point.

Because this Court determined that the United States had established subject matter
jurisdiction and, at the change of plea hearing, both Judge Sansone and trial counsel advised
Hernandez that the Court had determined subject matter jurisdiction, Hernandez fails to
demonstrate that he unknowingly and involuntarily pleaded guilty. Hill, 474 U.S. at 56, 59.
Ground Three is DENIED.

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Accordingly, Hernandez’s Section 2255 motion to vacate (Doc. 1) is DENIED. The
Clerk is DIRECTED to enter a judgment against Hernandez, DOCKET a copy of this Order
in the criminal action, and CLOSE this case.
DENIAL OF A CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Because Hernandez neither makes a substantial showing of the denial of a
constitutional right nor shows that reasonable jurists would find debatable both the merits of
the underlying claims and the procedural issues, a certificate of appealability and leave to
appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2). Slack v. McDaniel, 529 U.S.
473, 478 (2000).
DONE AND ORDERED in Tampa, Florida on May 9, 2022.

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