Garcia-Soto v. USA

Filing 14

MEMORANDUM DECISION AND ORDER - NOW THEREFORE IT IS HEREBY ORDERED that Garcia-Sotos Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 (Dkt. 1 ) is DENIED AND DISMISSED in its entirety. 2. IT IS FURTHER HEREBY ORDERED that no certificate of appealability shall issue. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

NELSON GARCIA-SOTO,
Case No. 1:15-cv-00074-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
UNITED STATES OF AMERICA,
Defendant.

INTRODUCTION
Pending before the Court is Nelson Garcia-Soto’s Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence. (Dkt. 1). Having reviewed the motion, the
government’s response (Dkt. 8), Garcia-Soto’s Reply (Dkt. 12) and underlying record,
the Court will dismiss the motion.
BACKGROUND
Garcia-Soto pled guilty to possession with intent to distribute methamphetamine
pursuant to a written plea agreement. Rule 11 Plea Agreement, Crim. Dkt. 151. 1 On May
24, 2013, this Court imposed a below-guidelines sentence of 148 months and judgment
was entered on May 29, 2013. Crim. Dkt. 300. Following sentencing, Garcia-Soto
appealed his conviction to the Ninth Circuit. The Ninth Circuit dismissed his appeal on

1

Citations to “Crim. Dkt.” are to the docket in the underlying criminal case, United States v. Garcia-Soto,
Case No. 1:12-cr-21-BLW (D. Idaho).

MEMORANDUM DECISION AND ORDER- 1

December 20, 2013. On March 5, 2015, Garcia-Soto filed the pending § 2255 motion.
STANDARD OF LAW
Title 28 U.S.C. § 2255 provides four grounds under which a federal court may
grant relief to a federal prisoner who challenges the imposition or length of his or her
incarceration: (1) "that the sentence was imposed in violation of the Constitution or laws
of the United States;" (2) "that the court was without jurisdiction to impose such
sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and
(4) that the sentence is otherwise "subject to collateral attack." 28 U.S.C. § 2255(a).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a federal
district court judge may summarily dismiss a § 2255 motion "[i]f it plainly appears from
the motion, any attached exhibits, and the record of prior proceedings that the moving
party is not entitled to relief." "Under this standard, a district court may summarily
dismiss a § 2255 motion only if the allegations in the motion, when viewed against the
record, do not give rise to a claim for relief or are 'palpably incredible or patently
frivolous.'" United States v. Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011) (citation
omitted).
If the Court does not dismiss pursuant to Rule 4(b), the Court shall order the
Government "to file an answer, motion, or other response within a fixed time, or to take
other action the judge may order."
The Court may dismiss a § 2255 motion at other stages of the proceeding such as
pursuant to a motion by respondent, after consideration of the answer and motion, or after
consideration of the pleadings and an expanded record. See Advisory Committee Notes
MEMORANDUM DECISION AND ORDER- 2

following Rule 8 of the Rules Governing Section 2254 Proceedings incorporated by
reference into the Advisory Committee Notes following Rule 8 of the Rules Governing
Section 2255 Proceedings.
If the Court does not dismiss the proceeding, the Court then determines under Rule
8 whether an evidentiary hearing is required. The Court need not hold an evidentiary
hearing if the issues can be conclusively decided on the basis of the evidence in the
record. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994).
ANALYSIS
Garcia-Soto raises three issues in this motion. First, he says the government
lacked “standing” to prosecute him, or otherwise engaged in misconduct in deciding to
charge him. Second, he says polygraph evidence establishes his actual innocence. Third,
he claims that his counsel was ineffective.
1. Alleged Prosecutorial Misconduct
Garcia-Soto’s claim that the government lacked “standing” to charge him fails on
two grounds. First, Garcia-Soto waived his ability to challenge the government’s decision
to prosecute him. Second, the Government has wide discretion in charging defendants.
A. Waiver
Garcia-Soto’s plea agreement includes a waiver, precluding him from bringing a
habeas petition on grounds other than ineffective assistance of counsel. See Crim. Dkt.
151. A waiver is enforceable if it is knowing and voluntary and the language covers the
grounds raised on appeal. United States v. Bibler, 495 F.3d 621, 623-24 (9th Cir. 2007)

MEMORANDUM DECISION AND ORDER- 3

(emphasis added). Knowing and voluntary waivers of appellate rights in criminal cases
are regularly enforced. United States v. Anglin, 215 F.3d 1064, 1066 (9th Cir. 2000).
Garcia Soto does not expressly claim that his waiver was unknowing or
involuntary. Rather, he briefly mentions that he entered into the Agreement based on his
counsel’s incorrect statements regarding his charges and sentencing guideline terms. §
2225 Mem. at 4. Even so, the record indicates that Garcia-Soto entered his plea
agreement knowingly and voluntarily.
Sworn statements made in open court at the time of a plea hearing carry a strong
presumption of verity and are entitled to great weight. Chizen v. Hunter, 809 F.2d 560,
562 (9th Cir. 1986) (citing Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)); see
also United States v. Kazcynski, 239 F.3d 1108, 1114-15 (9th Cir. 2001) ("substantial
weight" must be given to in-court statements). While that presumption is not necessarily
an insurmountable barrier to an evidentiary hearing, contentions that in the face of the
record are "wholly incredible" are subject to summary dismissal. Blackledge v.
Allison, 431 U.S. 63, 74 (1977); See also United States v. Moore, 599 F.2d 310, 313-14
(9th Cir. 1979).
Even if Garcia-Soto’s counsel did not adequately inform him regarding the
charges and sentencing guidelines, the plea colloquy indicates that Garcia-Soto did
knowingly and voluntarily enter into a plea agreement. During the change of plea
hearing, the Court asked Garcia-Soto the following:

MEMORANDUM DECISION AND ORDER- 4

Court:

Are you telling me that you understand and knowing
and voluntarily agree to all terms in the plea
agreement?

Garcia Soto: Yes.
Plea Tr., Crim. Dkt. 327, at 23-24.
With the help of an interpreter, Judge Dale verified that Garcia-Soto understood he
was pleading guilty to a count that had a possible penalty of 10 years to life imprisonment
and that the mandatory minimum was ten years. Id. at 8. Garcia-Soto agreed with the
factual basis of the Plea Agreement as summarized by the Government. Id. at 11-12. He
also denied that anyone threatened or forced him to plead guilty and testified that he went
over every provision of the Plea Agreement with counsel before signing it. Id. at 13, 5.
Further, Garcia-Soto acknowledged that the sentencing judge was not a party to the plea
agreement and was not bound by any of the recommendations and stipulations contained
therein. Id. at 21.
On this record, Garcia-Soto cannot argue that his decision to enter into his
plea agreement was anything but knowing and voluntary.
The waiver contained in the plea agreement is also enforceable because the
language in the plea agreement covers the grounds raised on appeal.
If defendants intend to preserve a larger subset of their appellate
rights, this must be bargained for in the plea agreement. . . . But absent
such a bargained-for term, or the applicability of an exception, a
knowing and voluntary waiver of appellate rights will preclude
substantive appellate review in this court.
Bibler, 495 F.3d at 624.
Here, Garcia-Soto did not preserve his right to challenge the government’s alleged
MEMORANDUM DECISION AND ORDER- 5

misconduct in deciding to prosecute him. In regard to his 28 U.S.C. § 2255 rights,
Garcia-Soto’s plea agreement states,
In exchange for this Agreement, and except as provided in
subparagraph B, the defendant waives any right to appeal or to
collaterally attack the conviction, entry of judgment, and sentence….
Notwithstanding subparagraph A, the defendant may file one habeas
petition (motion under 28 U.S.C. § 2255) for ineffective assistance of
counsel only if: (1) the motion is based solely on information not
known to the defendant at the time the District Court imposed
sentence; and (2) in the exercise of reasonable diligence, the
information could not have been known by the defendant at that time.
Plea Agreement, at 7-8 (emphasis added).
Here, Garcia-Soto has not reserved the right to challenge the Government’s
prosecutorial standing. Where he has not shown that he entered his plea agreement
unknowingly and involuntarily, the waiver will be enforced.
B. Prosecutorial Discretion
Even if Garcia-Soto had preserved his right to challenge the underlying
prosecution, his claim that the government “lacked standing” to prosecute him would fail.
The Government has “broad discretion as to whom to prosecute” as long as a charge is
supported by probable cause that a person has committed an offense as defined by statute.
Wayte v. United States, 470 U.S. 598, 607 (1985). Further a claim of duress does not
create a bar to prosecution, but rather provides for an affirmative defense. See Dixon v.
United States, 548 U.S. 1, 6-7 (2006).
In this case, a grand jury found sufficient probable cause to indict Garcia-Soto
with possession with intent to distribute 50 grams or more of methamphetamine. (Crim.
MEMORANDUM DECISION AND ORDER- 6

Dkt. 48). As discussed in the next section, Garcia-Soto makes no showing that the
government’s prosecution was improper.
C. Vindictive Prosecution
To establish that he was prosecuted vindictively or selectively, Garcia-Soto must
demonstrate that others similarly situated have not been prosecuted and that the allegedly
discriminatory prosecution…was based on an improper motive. United States v. One
1985 Mercedes, 917 F.2d 415, 420 (9th Cir. 1990).
Garcia-Soto has provided the Court with no evidence of others similarly situated
and no evidence of an improper motive. Garcia-Soto’s vindictive prosecution allegations
are unsupported by facts.
2.

Actual Innocence
Garcia-Soto next contends that he is actually innocent. § 2255 Memo at 9-10. The

standard for actual innocence claims "is demanding and permits review only in the
'extraordinary case.'" House v. Bell, 547 U.S. 518, 538 (2006). It is concerned with
factual rather than legal innocence and therefore encompasses all admissible evidence of
guilt even if not presented during a plea colloquy or at trial. Bousley v. United States, 523
U.S. 614, 623-24 (1998). A gateway claim of actual innocence requires "new reliable
evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence -- that was not presented at trial. . .." Schlup v.
Delo, 513 U.S. 298, 324 (1995). This new evidence must show that it is more likely than
not that no reasonable juror would have found petitioner guilty beyond a reasonable
doubt.” Bell, 517 U.S. at 537.
MEMORANDUM DECISION AND ORDER- 7

In Knickerbocker v. Wolfenbarger, 212 F. App'x 426, 432 (6th Cir. 2007), the
Sixth Circuit considered a similar argument. There, the defendant presented a witness’s
recanted statements and a polygraph exam indicating the defendant’s innocence was
entitled to habeas relief. The Sixth Circuit held that that the defendant was not entitled to
habeas relief, even when his polygraph was presented with more reliable evidence. Id. at
433. Similarly, Garcia-Soto is not entitled to relief where he has presented polygraph
evidence alone. As previously discussed, polygraph evidence is not considered reliable
evidence sufficient to establish actual innocence. United States v. Marshall, 526 F.2d
1349, 1360 (9th Cir. 1975).
Further, the polygraph examination only shows that Garcia-Soto acted under
duress. A duress defense evidenced by a polygraph exam is not enough to show factual
innocence. A reasonable juror could still find that Garcia-Soto was guilty beyond a
reasonable doubt. Therefore, Garcia-Soto’s actual-innocence argument is not persuasive.
3.

Ineffective Assistance of Counsel
Finally, Garcia-Soto says his counsel was ineffective. The central argument here

is that Garcia-Soto believes his counsel should have pursued a duress defense, relying
upon his polygraph exam. See, e.g., § 2255 Motion, Dkt. 1, at 5 (“trial counsel’s failure
to have the parties stipulat[e] that polygraph evidence could be admitted into evidence
constitutes ineffective assistance of counsel . . . .”). Garcia-Soto also says his counsel
should have argued that the prosecutor lacked standing to prosecute him. Neither
argument is persuasive.
To prevail on his claim of ineffective assistance of counsel, Garcia-Soto must
MEMORANDUM DECISION AND ORDER- 8

demonstrate that his attorney’s representation “fell below an objective standard of
reasonableness,” and that he suffered as a result. Strickland v. Washington, 466 U.S. 668,
688 (1984). A court considering a claim of ineffective assistance must apply a "strong
presumption" that counsel's representation was within the "wide range" of reasonable
professional assistance. Harrington v. Richter, 562 U.S. 86, 104 (2011). The challenger's
burden is to show "that counsel made errors so serious that counsel was not functioning
as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id.
With respect to prejudice, a challenger must demonstrate "a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different." Id. A reasonable probability "is a probability sufficient to undermine
confidence in the outcome." Id. It is not enough "to show that the errors had some
conceivable effect on the outcome of the proceeding." Id. Counsel's errors must be "so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.
The Supreme Court has observed that "[s]urmounting Strickland's high bar is
never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010). It is "all too
tempting" to "second-guess counsel's assistance after conviction or adverse sentence."
Richter, 562 U.S. at 105. The question is whether an attorney's representation amounted
to incompetence under "prevailing professional norms," not whether it deviated from
"best practices or most common custom." Id.
Garcia-Soto has not demonstrated that (1) his counsel’s performance fell below an
objective standard of reasonableness, and (2) he was prejudiced as result. Regarding the
duress defense, the record shows that Garcia-Soto’s counsel was aware of a duress
MEMORANDUM DECISION AND ORDER- 9

defense, as evidenced by the Motion in Limine filed on October 26, 2012. A few days
after this motion was filed, Garcia-Soto nevertheless pleaded guilty. During his plea
hearing, Garcia-Soto was informed by the Court about the risks of accepting a plea
agreement. Plea Tr. at 5-8. Garcia-Soto also said he had fully discussed the case with his
attorney and believed he had been adequately represented. Id. at 5-6.
Moreover, Garcia-Soto has not demonstrated that a reasonable attorney would
have pursued a duress defense and that, by contrast, his counsel’s actions fell below the
required standard. Rather, courts have consistently expressed an “inhospitable view
towards the admission of unstipulated polygraph evidence under the Federal Rules of
Evidence.” Brown v. Darcy, 783 F.2 1389, 1396 (9th Cir. 1986).
Finally, for the reasons discussed above, Garcia-Soto’s argument that the
prosecutor “lacked standing” to pursue charges against him is unpersuasive.
CONCLUSION
For all the foregoing reasons, the Court will dismiss Garcia-Soto’s § 2255 Motion.
CERTIFICATE OF APPEALABILITY
A § 2255 movant cannot appeal from the denial or dismissal of his § 2255 motion
unless he has first obtained a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R.
App. P. 22(b). A certificate of appealability will issue only when a movant has made "a
substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To
satisfy this standard when the court has dismissed a § 2255 motion (or claims within a §
2255 motion) on procedural grounds, the movant must show that reasonable jurists would
find debatable (1) whether the court was correct in its procedural ruling, and (2) whether
MEMORANDUM DECISION AND ORDER- 10

the motion states a valid claim of the denial of a constitutional right. Slack v. McDaniel,
529 U.S. 473, 484 (2000). When the court has denied a § 2255 motion or claims within
the motion on the merits, the movant must show that reasonable jurists would find the
court's decision on the merits to be debatable or wrong. Slack, 529 U.S. at 484; Allen v.
Ornoski, 435 F.3d 946, 951 (9th Cir. 2006).
Recently amended Rule 11 of the Rules Governing § 2255 Proceedings provides that
the district court must issue or deny a certificate of appealability at the time it enters a
final order adverse to the movant. Rule 11(a), 28 U.S.C. foll. § 2255. After carefully
considering the record and the relevant case law, the Court finds that reasonable jurists
would not find the Court's determination regarding Garcia-Soto’s claims of lack of
prosecutorial standing, vindictive prosecution, ineffective assistance of counsel, and
actual innocence to be debatable or wrong. Accordingly, a certificate of appealability will
not issue.
ORDER
1. NOW THEREFORE IT IS HEREBY ORDERED that Garcia-Soto’s Motion to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Pursuant to
28 U.S.C. § 2255 (Dkt. 1) is DENIED AND DISMISSED in its entirety.
2. IT IS FURTHER HEREBY ORDERED that no certificate of appealability shall
issue. Garcia-Soto is advised that he may still request a certificate of appealability
from the Ninth Circuit Court of Appeals, pursuant to Federal Rule of Appellate
Procedure 22(b) and Local Ninth Circuit Rule 22-1. To do so, he must file a timely
notice of appeal.
MEMORANDUM DECISION AND ORDER- 11

3. IT IS FURTHER HEREBY ORDERED that if Garcia-Soto files a timely notice
of appeal, and not until such time, the Clerk of Court shall forward a copy of the
notice of appeal, together with this Order, to the Ninth Circuit Court of Appeals.
The district court's file in this case is available for review online
at www.id.uscourts.gov.

DATED: September 12, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER- 12