Hernandez v. USA

Filing 6

MEMORANDUM DECISION AND ORDER Petitioner's § 2255 Motion to Vacate, Set Aside, or Correct Sentence (CV Dkt. 1 ) (CR Dkt. 28) is DENIED and the civil case is DISMISSED IN ITS ENTIRETY. Certificate of Appealability is DENIED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ANTONIO ROSALES HERNANDEZ,
Case No. 4:16-CV-00227-EJL
4:13-CR-00082-EJL

Petitioner,
v.

MEMORANDUM DECISION
AND ORDER

UNITED STATES OF AMERICA,
Respondent.

INTRODUCTION
Pending before the Court in the above-entitled matter is Petitioner’s § 2255
Motion to vacate, set aside, or correct sentence. (CV Dkt. 1) (CR Dkt. 28.) The
Government filed a response. (CV Dkt. 5). Petitioner failed to file a reply. The matter is
ripe for the Court’s consideration.
FACTUAL AND PROCEDURAL BACKGROUND
The Indictment in this case charged the Petitioner Antonio Rosales Hernandez
with Deported Alien Found in the United States. Hernandez entered a plea of agreement
and pled guilty to the charge. The Plea Agreement provided Hernandez could receive a
departure under the Fast Track program if his criminal history was not too high and did
not include a prior crime of violence or a prior controlled substances offense. It is
undisputed Hernandez had a criminal history of V and convictions for assault as well as
one controlled substances conviction.
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On November 26, 2013, Hernandez was sentenced by the Court. The Court
granted Hernandez’s two level departure based on cultural assimilation and sentenced
him at the low end of the applicable Sentencing Guideline range to 57 months
imprisonment with no supervised release based on Defendant’s likelihood of being
deported after completing his term of imprisonment. The Presentence Investigation
Report (which Hernandez should be able to review via his Bureau of Prisons case
manager) indicates in ¶ 17 that Hernandez received a 16 point specific offense
characteristic enhancement under § 2L1.2(b)(1)(A)(ii) based upon “the felony crime of
violence offense Assault By State Prisoner, CR2001-1193061.” Petitioner did not file an
appeal.
Due to this crime of violence enhancement, Petitioner argues based on the
Supreme Court ruling in Johnson v. United States, 135 S.Ct. 2251 (2015) that by analogy
his crime of violence under the Sentencing Guidelines should also be determined to be
unconstitutional based on the similar residual clause defining a crime of violence
contained in § 4B1.2. Petitioner also argues his illegal reentry conviction is not a crime of
violence and prior deportations should not be used as aggravated felonies to increase his
sentence.
The Government responds that the motion is untimely and barred by the waiver of
the right to file a habeas petition contained in the Plea Agreement. In addition, the
Government argues it has not been determined whether the Johnson reasoning applies to
the Guidelines, but the Court need not reach that issue since there is another way for the
Court to lawfully enhance the Petitioner’s Guidelines calculation by using his prior
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controlled substances conviction. Therefore the sentence would be the same. Moreover,
the Government argues there was no enhancement for prior deportations and prior
deportations were not considered aggravated felonies by the Court.

STANDARD OF REVIEW
Section 2255 permits a federal prisoner in custody under sentence to move the
court that imposed the sentence to vacate, set aside, or correct the sentence on the
grounds that:
the sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack ....
§ 2255(a); see also Hill v. United States, 368 U.S. 424, 426-27 (1962) (articulating the
four grounds upon which § 2255 relief can be claimed).
There is a distinction between constitutional and jurisdictional errors and errors of
law or fact. Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
593 (2d ed. 1982). If the alleged error is one of law or fact, then § 2255 does not provide
a basis for collateral attack “unless the claimed error constituted ‘a fundamental defect
which inherently results in a complete miscarriage of justice.’” United States v.
Addonizio, 442 U.S. 178, 185 (1979) (citing Hill, 368 U.S. at 428). Section 2255 is not a
substitute for appeal. Id. at 184. If the matter has been decided adversely to the defendant
on direct appeal, the matter cannot be relitigated on collateral attack. Clayton v. United

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States, 447 F.2d 476, 477 (9th Cir. 1971); Feldman v. Henman, 815 F.2d 1318 (9th Cir.
1987).
ANALYSIS
The § 2255 Motion in this case raises claims of ineffective assistance of counsel
by both counsel in failing to raise certain arguments and the application of a new rule of
law under Johnson. The Government asserts the § 2255 Motion should be denied without
a hearing.
1.

Dismissal of the Petition without a Hearing
Under § 2255, “a district court must grant a hearing to determine the validity of a

petition brought under that section, ‘[u]nless the motions and the files and records of the
case conclusively show that the prisoner is entitled to no relief.’” United States v.
Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (alteration in original) (quoting 28 U.S.C. §
2255(b)). In determining whether a § 2255 motion requires a hearing, “[t]he standard
essentially is whether the movant has made specific factual allegations that, if true, state a
claim on which relief could be granted.” United States v. Withers, 638 F.3d 1055, 1062
(9th Cir. 2010).
A district court may dismiss a § 2255 motion based on a facial review of the
record “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.” Id. at 1062–63
(citation omitted). That is to say, the court may deny a hearing if the movant's allegations,
viewed against the record, fail to state a claim for relief or “are so palpably incredible or
patently frivolous as to warrant summary dismissal.” United States v. McMullen, 98 F.3d
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1155, 1159 (9th Cir. 1996) (internal quotation marks omitted). Where it is clear the
petitioner has failed to state a claim, or has “no more than conclusory allegations,
unsupported by facts and refuted by the record,” a district court may deny a § 2255
motion without an evidentiary hearing. United States v. Quan, 789 F.2d 711, 715 (9th
Cir. 1986). To warrant a hearing, therefore, the movant must make specific factual
allegations which, if true, would entitle him to relief. McMullen, 98 F.3d at 1159 (citation
omitted). Mere conclusory assertions in a § 2255 motion are insufficient, without more,
to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).
Because it is clear the § 2255 Motion in this case fails to state a claim and has
asserted “no more than conclusory allegations, unsupported by facts and refuted by the
record,” this Court denies the § 2255 Motion without an evidentiary hearing for the
reasons stated herein. Quan, 789 F.2d at 715.

2. Waiver and Timeliness
The Johnson decision was held to be retroactive to § 2255 motions in Welch v.
United States, 136 S. Ct. 1257 (2016). If Johnson is held to also apply to the Sentencing
Guidelines when the Supreme Court takes up the case Beckles v. United States, F. App’x
415 (11th Cir. 2015), cert. granted, 2015 WL 1029080 (US. June 27, 2016) (No. 158544), then the waiver in the Plea Agreement would not control as a waiver will not
apply to a sentence that violates the law. United States v. Bibler, 495 F.3d 621, 624 (9th

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Cir. 2007).

Moreover, the one-year statute of limitations exception of 28 U.S.C.

§ 2255(f)(3) would apply to make Petitioner’s June 6, 2016 § 2255 motion timely filed.
Based on the rule of lenity and because the Court finds the motion should be
denied on its merits due to Petitioner’s prior controlled substances conviction which is
not impaced by the Johnson decision, the Court will deny the Government’s waiver and
timeliness arguments in this particular case.

3. Johnson Analysis
The Court agrees with Petitioner that there is an argument to be made that the
Johnson analysis should extended to similar language in the Guidelines. However, the
Court will leave that to the Supreme Court to do when it rules on the pending appeal in
Beckles. The problem in this particular case for Petitioner is even if Johnson is extended
to the residual clause language in § 4B1.2(a)(2) defining crime of violence (as a crime
that “otherwise involves conduct that presents a serious potential risk of physical injury
to another”) and neither of his two assault convictions can be considered as crimes of
violence under the “force” clause of § 4B1.2(a)(1) (crime “has as an element the use,
attempted use, or threatened use of physical force against the person of another”),
Petitioner would still receive the same 16 point enhancement for his prior conviction of a
controlled substance. This is because § 2L1.2 (which was cited in ¶ 17 of the Presentence
Investigation Report) requires a 16 point enhancement if the defendant was previously
deported after a conviction that is a drug trafficking offense for which a sentence imposed
exceeded 13 months OR a “crime of violence” or any of the other listed crimes.
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It is undisputed in ¶ 35 of the Presentence Investigation Report, Petitioner was
convicted of delivery of a controlled substance – marijuana in the Seventh Judicial
District Court, Idaho Falls, ID, Case No. CR2010-16739-FE and was sentenced on May
2, 2013 to up to 5 years imprisonment with one year fixed. Therefore, even if the Court
did not use the assault convictions as crimes of violence, the sentence imposed would
have been the exact same sentence based on the prior drug conviction and the Court’s
application of § 2L1.2(b)(1)(A)(i) instead of (ii) of the Guidelines. The fact the
Presentence Investigation Report only sets forth one basis for the enhancement instead of
potentially three (two prior assault convictions and one prior drug conviction) is not
determinative since the Court must apply the facts of record to any sentencing.
Finally, it was Defendant’s criminal history points and his prior drug conviction
that also support the inapplicability of the Fast Track departure in this case.

4. Ineffective Assistance of Counsel
The Sixth Amendment guarantees “the right to effective assistance of counsel.”
McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). A petitioner claiming ineffective
assistance of counsel must allege specific facts which, if proved, would demonstrate that
1) counsel’s actions were “outside the wide range of professionally competent
assistance,” and 2) “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland
v. Washington, 466 U.S. 668, 687-690 (1984). Mere conclusory allegations do not prove
that counsel was ineffective. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir.
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1989). Petitioner fails to state a claim for ineffective assistance by failing to allege facts
sufficient to meet either the “performance” or “prejudice” standard, and the district court
may summarily dismiss his claim. Stated differently, “[t]o be entitled to habeas relief due
to the ineffectiveness of defense counsel, petitioner must establish both that counsel’s
performance was deficient and that the deficiencies prejudiced the defense.” Medina v.
Barnes, 71 F.3d 636, 368 (9th Cir. 1995) (quoting Strickland, 466 U.S. at 687, 689). The
Court evaluates “counsel’s performance from [their] perspective at the time of that
performance, considered in light of all the circumstances, and we indulge a strong
presumption that counsel’s conduct fell within the ‘wide range of reasonable professional
assistance.’” Medina, 71 F.3d at 368.
Here Petitioner claims his attorney should have made the above arguments that his
assault convictions were not crimes of violence. At the time of his sentencing, the assault
crimes were considered crimes of violence under Ninth Circuit law. Additionally, counsel
was undoubtedly aware that a prior drug conviction could also cause the 16 point
enhancement. So there was no prejudice to Petitioner in the form of a longer sentence for
counsel’s alleged ineffective assistance of counsel claim. Even assuming Petitioner could
satisfy the “performance” prong with his conclusory allegations, Petitioner cannot satisfy
the “prejudice” prong and the claim for ineffective assistance of counsel must be denied.

5.

Illegal Reentries Did Not Affect Guidelines
Petitioner also argues his conviction for illegal re-entry is not a crime of violence

and his prior deportations should not be counted against him as aggravated felonies.
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Neither of these things increased Petitioner’s sentence. The Court agrees Petitioner’s
crime of deported alien found in the United States was not a crime of violence. It is not
Petitioner’s federal conviction for deported alien found in the United States or his prior
deportations that enhanced his sentence, it was his prior convictions for assault or his
controlled substances conviction that caused the enhancement to apply. Therefore, this
cannot serve as a basis to set aside or correct Petitioner’s sentence or as a basis for an
ineffective assistance of counsel claim.

6. Conclusion
Having reviewed the entire record in this matter and considering the Petitioner’s
claims, the Court finds that the Petitioner has not shown the 16 point enhancement under
§ 2L1.2 of the Guidelines was improper based on Petitioner’s prior drug conviction, he
has not shown prejudice, or any reasonable probability of prejudice, resulting from any of
his claims. The Court did not abuse its discretion at sentencing and the sentence was at
the low end of the applicable Guidelines range. Simply put, there was no legal error in the
sentence imposed in this case regardless of the Supreme Court’s future ruling in Beckles
(determining if the residual clause of the Guidelines is unconstitutional). The § 2255
Motion is denied.

5.

Certificate of Appealability
A Petitioner 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.
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App. P. 22(b). A certificate of appealability will issue only when a Petitioner 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, a Petitioner must show that reasonable jurists
would find debatable (1) whether the court was correct in its procedural ruling, and (2)
whether 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, a Petitioner must show that reasonable jurists
would find the Court's decision on the merits to be debatable or wrong. Id. The Court
finds that Petitioner has not made any showing, let alone a substantial one, of the denial
of a constitutional right. 28 U.S.C. § 2253(c)(2). The Court further finds that reasonable
jurists would not find the Court’s assessment of Petitioner’s claims debatable or wrong.
Slack, 529 U.S. at 483. Accordingly, the Court declines to issue a certificate of
appealability.

ORDER
IT IS ORDERED:
1)

Petitioner’s § 2255 Motion to Vacate, Set Aside, or Correct Sentence (CV
Dkt. 1) (CR Dkt. 28) is DENIED and the civil case is DISMISSED IN ITS
ENTIRETY.

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2)

Certificate of Appealability is DENIED.

DATED: November 1, 2016

_________________________
Edward J. Lodge
United States District Judge

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