VASQUEZ-SILVA v. USA
Filing
12
Entry Denying Motion for Relief Pursuant to 28 U.S.C. Sec. 2255 and Denying Certificate of Appealability - The motion of Jose Vasquez-Silva ("Vasquez- Silva") for relief pursuant to 28 U.S.C. Sec. 2255 must be denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue. (See Entry.) Copy to petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 4/28/2014.(RSF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JOSE VASQUEZ-SILVA,
Petitioner,
vs.
UNITED STATES OF AMERICA.
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Case No. 2:13-cv-99-JMS-WGH
Case No. 2:10-cr-0026-JMS-CMM-1
Entry Denying Motion for Relief Pursuant to
28 U.S.C. ' 2255 and Denying Certificate of Appealability
For the reasons explained in this Entry, the motion of Jose Vasquez-Silva (“VasquezSilva”) for relief pursuant to 28 U.S.C. ' 2255 must be denied and the action dismissed with
prejudice. In addition, the Court finds that a certificate of appealability should not issue.
I. The ' 2255 Motion
Background
On August 25, 2011, a Second Superseding Indictment was filed charging Vasquez-Silva
and others with multiple counts. Count 1 charged Vasquez-Silva with conspiracy to distribute
500 grams or more of a mixture of methamphetamine and marijuana, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. Counts 2 and 3 charged Vasquez-Silva with conspiracy to launder
monetary instruments, in violation of 18 U.S.C. § 1956(h). Count 7 charged Vasquez-Silva with
robbery, in violation of 18 U.S.C. § 1951. Count 8 charged Vasquez-Silva with possession of a
firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). Count 10
charged Vasquez-Silva with illegally reentering the United States after being removed, in
violation of 8 U.S.C. § 1326(a), (b)(2). On September 22, 2011, Count 10 was dismissed without
prejudice. On December 19, 2011, the government filed an information pursuant to 21 U.S.C. §
851(a)(1), charging that Vasquez-Silva had a prior felony narcotics conviction.
On December 21, 2011, pursuant to Fed. R. Crim. P. 11(c)(1)(C), the parties submitted a
written plea agreement. On that same day, the Court rejected the proposed plea agreement
because certain statements made by Vasquez-Silva undermined the factual basis for one of the
counts. A second change of plea hearing was held on December 22, 2011. At that hearing, the
Court advised Vasquez-Silva of his rights and the penalties he faced if convicted and heard the
factual basis for Vasquez-Silva’s plea. The Court found that Vasquez-Silva was fully competent
and able to enter an informed plea; that Vasquez-Silva’s plea was made knowingly and
voluntarily; and that an independent factual basis to support the plea was established. The Court
then accepted Vasquez-Silva’s plea agreement and adjudged him guilty as charged as to Counts
1, 2, and 3 of the Second Superseding Indictment.
On April 23, 2012, the Court sentenced Vasquez-Silva to 300 months’ imprisonment, to
be followed by ten years of supervised release. Vasquez-Silva was also assessed the mandatory
assessment of $300. Judgment was entered on May 3, 2012. On May 8, 2012, Counts 7 and 8 of
the Second Superseding Indictment were dismissed pursuant to the plea agreement.
Vasquez-Silva filed a notice of appeal on April 24, 2012. On December 28, 2012, the
Seventh Circuit granted the government’s motion to dismiss the appeal on the basis that
Vasquez-Silva had waived his right to appeal as part of his plea agreement. The mandate
dismissing the appeal was issued on January 23, 2013. On March 18, 2013, Vasquez-Silva filed
his motion to vacate pursuant to 28 U.S.C. § 2255.
Discussion
Claims
A motion pursuant to 28 U.S.C. ' 2255 is the presumptive means by which a federal
prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343
(1974). Vasquez-Silva contends that his counsel was ineffective in negotiating his plea
agreement, among other deficiencies.
The United States responds that a) Vasquez-Silva’s ' 2255 motion is barred by the
waiver of post-conviction relief rights in the plea agreement, and b) he was provided effective
assistance of counsel.
Terms of Plea Agreement
In the Plea Agreement, Vasquez-Silva agreed to plead guilty to Counts 1, 2 and 3 of the
Second Superseding Indictment. Plea Agreement, ¶ 1. In exchange for the government’s
agreement to withhold from filing an Information pursuant to 21 U.S.C. § 851 alleging that
Vasquez-Silva committed a second prior felony drug conviction, Vasquez-Silva agreed to enter
into a binding plea agreement for a sentence of 300 months’ imprisonment and “expressly
waive[d] his right to appeal the conviction and any sentence imposed on any ground, . . . [and
also] expressly agree[d] not to contest, or seek to modify, his conviction or his sentence or the
manner in which it was determined in any proceeding, including, but not limited to, an action
brought under 28 U.S.C. § 2255.” Plea Agreement, ¶ 12.
In addition to the waiver of appellate rights, because Vasquez-Silva pled guilty pursuant
to Fed. R. Crim P. 11(c)(1)(C), and because his sentence did not exceed that which was set forth
in the agreement, he had no statutory right to appeal. See 18 U.S.C. § 3742(c)(“[i]n the case of a
plea agreement that includes a specific sentence under rule 11(e)(1)(C) [now Rule 11(c)(1)(C)]
of the Federal Rules of Criminal Procedure - (1) a defendant may not file a notice of appeal . . .
unless the sentence imposed is greater than the sentence set forth in such agreement . . . .”).
Legal Standard
The right to effective assistance of counsel is violated when the performance of counsel
falls below an objective standard of reasonable professional conduct and prejudices the defense.
Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). For Vasquez-Silva to establish that his “counsel’s assistance was so defective as to
require reversal” of his conviction, he must make two showings: (1) deficient performance that
(2) prejudiced his defense. Strickland, 466 U.S. at 687.
With respect to the first prong, “‘the proper measure of attorney performance remains
simply reasonableness under prevailing professional norms.’” Wiggins v. Smith, 539 U.S. 510,
521 (2003) (quoting Strickland, 466 U.S. at 688). In addition, the performance of counsel under
Strickland should be evaluated from counsel’s perspective at that time, making every effort to
“‘eliminate the distorting effects of hindsight.’” Id. at 523 (quoting Strickland, 466 U.S. at 689).
With respect to the prejudice requirement, the petitioner “must show that there is 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.” Strickland, 466 U.S. at 694. It is not enough for a petitioner to show
that “the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693.
The Seventh Circuit has recognized the validity of waivers such as that included in the
plea agreement in this case. “A defendant may validly waive both his right to a direct appeal and
his right to collateral review under § 2255 as part of his plea agreement.” Keller v. United States,
657 F.3d 675, 681 (7th Cir. 2011). Such waivers are upheld and enforced with limited exceptions
in cases in which 1) the plea agreement was involuntary, 2) the district court relied on a
constitutionally impermissible factor such as race, 3) the sentence exceeded the statutory
maximum, or 4) the defendant claims ineffective assistance of counsel in relation to the
negotiation of the plea agreement. Id.; see also Hurlow v. United States, 726 F.3d 958, 964 (7th
Cir. 2013) (“appellate and collateral review waivers cannot be invoked against claims that
counsel was ineffective in the negotiation of the plea agreement”); Mason v. United States, 211
F.3d 1065, 1069 (7th Cir. 2000) (because the ineffective assistance of counsel challenge relating
to sentencing had nothing to do with the issue of a deficient negotiation of the waiver, the
petitioner waived his right to seek post-conviction relief); Jones v. United States, 167 F.3d 1142,
1145 (7th Cir. 1999) (“waivers are enforceable as a general rule; the right to mount a collateral
attack pursuant to ' 2255 survives only with respect to those discrete claims which relate directly
to the negotiation of the waiver.@).
To overcome a waiver provision in a plea agreement, a petitioner must establish that the
plea agreement was not knowing and voluntary because it was “the product of ineffective
assistance of counsel” or was “tainted by ineffective assistance of counsel.” Hurlow, 726 F.3d at
967 (internal quotations omitted). In Mason, the court stated that the following analysis should
be considered in determining whether a claim has been waived: “[C]an the petitioner establish
that the waiver was not knowingly or voluntarily made, and/or can he demonstrate ineffective
assistance of counsel with respect to the negotiation of the waiver?” Mason, 211 F.3d at 1069.
As noted, to prevail in an ineffective assistance of counsel claim as to a guilty plea, a movant
must demonstrate through objective evidence that counsel’s advice regarding the plea was
objectively unreasonable and that there is a reasonable probability that but for counsel’s error, he
would not have pled guilty and would have insisted on going to trial. Mulero v. Thompson, 668
F.3d 529, 537 (7th Cir. 2012); Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011).
Analysis
Vasquez-Silva first argues that the government and the Court worked his criminal case
around the Super Bowl and the Court’s dental issues. He contends that this constituted
misconduct and a denial of his due process rights. He further alleges that counsel was ineffective
for failing to raise this issue on appeal. This claim does not have any bearing on the voluntariness
of his plea agreement nor on the negotiation of the plea waiver.1 Therefore, it is barred by the
waiver provision in the plea agreement.
Vasquez-Silva’s second claim is that he was pressured, intimidated, and forced to plead
guilty by his attorney, the prosecuting attorney, and the Court. Vasquez-Silva’s supplemental
claim, filed on July 3, 2013, is that the Court improperly participated in the plea negotiations.
The theme of both of these claims is that his plea was not voluntary.
In support of these claims, Vasquez-Silva alleges his request to have more than 72 hours
to review the proposed plea agreement and his request for a different attorney were both
improperly denied. Vasquez-Silva’s contention that he was not given sufficient time to review
the plea agreement is meritless. He was, in fact, given additional time during and after the
1
The references to the Super Bowl and to the Court’s dental appointment occurred during the final
pretrial hearing and plea hearing on December 21, 2011. (Dec. 21, 2011, Final Pretrial Conference
Transcript (“Dec. 21 Transcript”), docket 881, pp. 35-36). The discussion of the Super Bowl was held in
the context of trying to schedule a lengthy trial so that it could be completed before the Super Bowl was
played in Indianapolis on February 4, 2012, to ensure parking for the jurors. Id. That discussion ended up
having no bearing on the criminal proceedings, however, because Vasquez-Silva insisted that he wanted
to plead guilty rather than go to trial. The reference to a dental appointment occurred when the Court
concluded the December 21, 2011, conference at 3:10 p.m. so she could go to the dentist to treat a broken
tooth. (Dec 21 Transcript, pp. 44-45). The conference was reconvened at 8:00 a.m. the following
morning. This last minute dental problem resulted in no prejudice to Vasquez-Silva. In fact, it provided
him additional time to consider his options with respect to the plea offer. There was no misconduct or
ineffective assistance in relation to these circumstances. Even if this claim were not barred by the plea
waiver, it would be dismissed as frivolous.
December 21, 2011, hearing to review the plea agreement. The Court took a recess from the
hearing and allowed Vasquez-Silva’s attorney to review the plea agreement with Vasquez-Silva
and the translator. In addition, the plea was not accepted until the following day, so VasquezSilva had an additional evening to consider the plea agreement. With respect to his request for a
different attorney, the Court discussed at length Vasquez-Silva’s concerns, but Vasquez-Silva
was not able to identify any basis on which the Court should change attorneys. (Dec. 21
Transcript, pp.2-8). Vasquez-Silva has not alleged any factual basis for his contention that
counsel pressured him to plead guilty.
Vasquez-Silva’s claim that his plea was not voluntary and therefore not barred by the
plea waiver provisions are negated by the record. As pointed out by the government, on
numerous occasions during the final pretrial conference Vasquez-Silva proclaimed that he was
guilty and did not want to go to trial. (Dec. 21 Transcript, pp. 4, 10-11, 18, 25); (Dec. 21
Transcript, p. 14) (“I’ve said that I’m guilty the whole time. I’ve never said that I was
innocent.”). During the change of plea hearing on December 22, 2011, Vasquez-Silva stated
under oath that no one had forced him to enter into the plea agreement. (Dec. 22, 2011, Plea
Hearing Transcript, (“Dec. 22 Transcript”), docket 884, p. 5). It is clear that he believed that the
government should have offered a lower sentence as part of the plea agreement, however, even if
Vasquez-Silva continues to believe that his sentence was too harsh, he chose to accept the 300
month plea agreement instead of facing a potential life sentence at trial. Vasquez-Silva signed
documents and testified under oath that he understood the possible penalties he faced and the
terms of the plea agreement, including his acceptance of the waiver of his rights to file an appeal
and an action under § 2255. (Plea Agreement, ¶ 12; Dec. 22 Transcript, pp. 7, 11-12). Vasquez-
Silva’s sentence did not exceed the statutory maximum and is lower than his advisory sentencing
guidelines range.
Vasquez-Silva’s supplemental claim that the Court participated in plea negotiations is
baseless. The written plea agreement was given to Vasquez-Silva 72 hours before the December
21, 2011, final pretrial conference. The Court was unaware of the terms of the plea offer prior to
the conference. The terms of the plea agreement were brought to the Court and were not changed
at any point during the conference. Vasquez-Silva’s allegation that the Court exerted pressure on
him to accept the plea is contradicted by the fact that the Court, in fact, rejected the plea because
during the Court’s review of the plea agreement with Vasquez-Silva, Vasquez-Silva did not
admit part of the factual basis of the plea. The Court then proceeded to prepare for trial. Near the
end of the conference, Vasquez-Silva again told his attorney that he did not want to go to trial
and he wanted to plead guilty pursuant to the plea agreement. (Dec. 21 Transcript, pp. 43-45). It
was then that the Court agreed to reconvene the final pretrial conference the following morning
to determine if the parties could agree to terms on the plea agreement. Id. The Court expressly
informed Vasquez-Silva that it could not “get involved with your negotiations with the
government.” (Dec. 21 Transcript, p.12). The Court told Vasquez-Silva that “[a]ll I can do is to
make sure you understand both what you’re charged with, what your rights are, including your
right to go to trial, [and] the potential penalties you face.” Id.
Vasquez-Silva’s claim also fails to take into account all variables that go into negotiating
plea agreements, not the least of which is what the government is willing to offer in each case.
“[T]he successful negotiation of a plea agreement involves factors beyond the control of counsel,
. . . [including] the cooperation of the prosecutor, who has no obligation to offer such an
agreement.” United States v. Hall, 212 F.3d 1016, 1022 (7th Cir. 2000). As pointed out by the
government, in light of the potential life sentence Vasquez-Silva faced if the government had
filed an information pursuant to 21 U.S.C. § 851 alleging that he had committed two prior felony
drug convictions, the agreement for a 300-month term of imprisonment obtained by VasquezSilva’s counsel was extremely favorable. The government never indicated that it would accept a
lesser sentence in any agreement. Under these circumstances, Vasquez-Silva has failed to show
how counsel could have obtained a better result. He has shown no deficient performance in the
negotiation of his plea agreement.
Vasquez-Silva’s third claim is that the government never offered any expert testimony
and evidence such a DNA, finger prints, voice exemplars, or other scientific proof that connected
him to the phone recordings. He asserts that counsel failed to raise this issue on appeal. This
claim does not fall within the narrow scope of claims that survive the waiver of appellate and
post-judgment rights provision. The claim does not challenge the voluntary nature of VasquezSilva’s plea nor does it assert any ineffective assistance of counsel with respect to the negotiation
of the waiver. Therefore, the claim is dismissed because it is barred by the plea waiver.
Vasquez-Silva’s fourth claim is that the government and Court erred by allowing the use
of non-specified phone recordings in Spanish in court and by not requiring a Spanish speaking
jury. This claim is not only barred by the plea waiver, it is dismissed as frivolous because there is
no constitutional requirement to impanel a Spanish speaking jury if the case had gone to trial.
Vasquez-Silva has failed to show any objectively unreasonable or deficient performance
on the part of his attorney. Because he has not established that counsel’s performance was
incompetent, the Court need not proceed to the “prejudice” inquiry. Koons, 639 F.3d at 351.
The terms of the plea agreement and his statements to the Court make clear that VasquezSilva understood he was waiving his rights to appeal and/or seek any collateral challenge.
“Justice would be ill-served, and the utility of the Rule 11 colloquy would be undermined, by
allowing [a defendant] to renege on his representation under oath to the district court. . . .”
Hutchings v. United States, 618 F.3d 693, 699 (7th Cir. 2010). “The presumption of verity [of a
defendant’s statements in pleading guilty] is overcome only if the defendant satisfies a heavy
burden of persuasion.” United States v. Logan, 244 F.3d 553, 558 (7th Cir. 2001) (internal
quotation omitted). Vasquez-Silva has not met that burden here.
In sum, Vasquez-Silva has failed to show that his plea agreement was not knowingly and
voluntarily made. In addition, he has not shown any ineffective assistance of counsel in relation
to the negotiation of his plea agreement. To allow Vasquez-Silva to now contradict his written
statements and his sworn testimony would defeat the very purpose of and benefits he received
from the plea agreement.
Accordingly, as to all of his claims, the waiver provision of the plea agreement is valid
and will be enforced. Vasquez-Silva’s ' 2255 challenge is barred by the waiver provision in the
plea agreement.
Conclusion
The foregoing shows that Vasquez-Silva is not entitled to relief pursuant to 28 U.S.C. '
2255. The motion for relief pursuant to ' 2255 is therefore denied. Judgment consistent with this
Entry shall now issue.
This Entry and the accompanying Judgment shall also be entered on the docket in
the underlying criminal action, Case No. 2:10-cr-0026-JMS-CMM-1.
II. Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing ' 2255 Proceedings, and 28 U.S.C. ' 2253(c), the Court finds that Vasquez-Silva has
failed to show that reasonable jurists would find “it debatable whether the petition states a valid
claim of the denial of a constitutional right” and “debatable whether [this Court] was correct in
its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore denies
a certificate of appealability.
IT IS SO ORDERED.
04/28/2014
Date: __________________
Distribution:
Jose Vasquez-Silva
62701-208
Leavenworth USP
Inmate Mail/Parcels
P. O. Box 1000
Leavenworth, KS 66048
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Electronically registered counsel
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