Berlanga-Rodriguez v. United States of America
Filing
12
OPINION; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, sdb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RAMON BERLANGA-RODRIGUEZ,
Movant,
File No. 1:15-cv-688
v.
HON. ROBERT HOLMES BELL
UNITED STATES OF AMERICA,
Respondent.
/
OPINION
This matter comes before the Court on Movant Ramon Berlanga-Rodriguez’s motion
under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed upon him by this
Court. (ECF No. 1.) For the reasons that follow, the motion will be denied.
I.
On March 12, 2013, a grand jury indicted Movant on one count of sexual exploitation
of a child, 18 U.S.C. § 2251(a) and (e), and one count of possession of images of a minor
engaging in sexually explicit conduct, 18 U.S.C. § 2252(a)(4)(B) and (b)(2). (United States
v. Berlanga-Rodriguez, No. 1:13-cr-58, Indictment, ECF No. 12.) On May 6, 2013, Movant
pled guilty to count one of the indictment, sexual exploitation of a child, while count two of
the indictment was dismissed. (Plea Agreement, ECF No. 19.) The presentence report (PSR)
stated that “[b]ased on a total offense level of 43 and a criminal history category of II, the
guideline for imprisonment [was] life. However, the statutorily authorized maximum
sentence [was] 360 months.” (PSR, ECF No. 32, PageID.159.) On September 12, 2013,
Movant was sentenced to a within-guideline sentence at the statutory maximum of 360
months’ imprisonment and five years of supervised release. (Judgment, ECF No. 37.) The
sentence was upheld by the Sixth Circuit after Movant appealed. United States v. BerlangaRodriguez, 574 F. App’x 660 (6th Cir. 2014).
Movant now moves to vacate his sentence, arguing that his guilty plea was unknowing
and involuntary because trial counsel actively misled Movant into believing he “would
receive a far lesser sentence than the one authorized by law, and as a result, [Movant] also
received ineffective assistance of counsel.” (Berlanga-Rodriguez v. United States, No. 1:15cv-688, ECF No. 5, PageID.18.)
II.
A prisoner who moves to vacate his sentence under § 2255 must show that the
sentence was imposed in violation of the Constitution or laws of the United States, that the
court was without jurisdiction to impose such a sentence, that the sentence was in excess of
the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. To prevail on a § 2255 motion “a petitioner must demonstrate the existence of an
error of constitutional magnitude which had a substantial and injurious effect or influence
on the guilty plea or the jury’s verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th
Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).
Non-constitutional errors are generally outside the scope of § 2255 relief. United States v.
2
Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A petitioner can prevail on a § 2255 motion
alleging non-constitutional error only by establishing a “fundamental defect which inherently
results in a complete miscarriage of justice, or, an error so egregious that it amounts to a
violation of due process.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999)
(quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotations
omitted)).
As a general rule, claims not raised on direct appeal are procedurally defaulted and
may not be raised on collateral review unless the petitioner shows either (1) “cause” and
“actual prejudice” or (2) “actual innocence.” Massaro v. United States, 538 U.S. 500, 504
(2003); Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456
U.S. 152, 167-68 (1982). To satisfy the “cause” test, a petitioner must show that “some
objective factor external to the defense” kept him from raising the issue earlier. Coleman v.
Thompson, 501 U.S. 722, 753 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).
An ineffective assistance of counsel claim, however, is not subject to the procedural default
rule. Massaro, 538 U.S. at 504. An ineffective assistance of counsel claim may be raised in
a collateral proceeding under § 2255, whether or not the petitioner could have raised the
claim on direct appeal. Id.
A court is generally required to grant a hearing to determine the issues and make
findings of fact and conclusions of law on a § 2255 motion “[u]nless the motion and the files
and records of the case conclusively show that the prisoner is entitled to no relief . . . .” 28
3
U.S.C. § 2255. Section 2255 does not require a full blown evidentiary hearing in every
instance. “Rather, the hearing conducted by the court, if any, must be tailored to the specific
needs of the case, with due regard for the origin and complexity of the issues of fact and the
thoroughness of the record on which (or perhaps, against which) the section 2255 motion is
made.” Smith v. United States, 348 F.3d 545, 550-51 (6th Cir. 2003) (quoting United States
v. Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993)). No evidentiary hearing is required if the
petitioner’s allegations “cannot be accepted as true because they are contradicted by the
record, inherently incredible, or conclusions rather than statements of fact.” Valentine v.
United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Arredondo v. United States, 178
F.3d 778, 782 (6th Cir. 1999)). Where the judge considering the § 2255 motion also
conducted the trial, the judge may rely on his or her recollections of the trial. Blanton v.
United States, 94 F.3d 227, 235 (6th Cir. 1996).
III.
While unclear, Movant appears to allege first that his guilty plea was involuntary and
unknowing, and second that his trial counsel was ineffective. Both of these claims arise out
of the allegation that Movant’s attorney led him to believe that he would receive a sentence
lower than 30 years. Movant contends that he “was told [by his attorney] that his guilty plea
would subject him to a penalty of 12 to 15 years and likely that it would be the 15 years, the
minimum under the statute. That advice caused [Movant] to agree to enter into the plea . . .
. He was grossly misadvised about the direct consequences of his guilty plea. This clearly-
4
erroneous advice rendered his guilty plea unknowing and involuntary.” (ECF No. 5,
PageID.19.) Movant argues that this was ineffective assistance because the “advice was
constitutionally deficient. But for the constitutionally defective advice, [Movant] would not
have accepted a plea and would have gone to trial.” (Id. at PageID.21.)
A. Unknowing and Involuntary Plea
As stated, claims not raised on direct appeal are procedurally defaulted and may not
be raised on collateral review unless the petitioner shows either (1) “cause” and “actual
prejudice” or (2) “actual innocence.” See Massaro, 538 U.S. at 504; Bousley, 523 U.S. at
621-22; Frady, 456 U.S. at 167-68. At Movant’s plea hearing, the following exchange
occurred:
THE COURT: And above your name it says—above your signature it says
that you—it attests that you’ve carefully read this agreement and carefully
discussed every part of it with your attorney and that you understand the terms
of this agreement and you voluntarily agree to the terms. Is that correct?
DEFENDANT BERLANGA-RODRIGUEZ: Yes, Your Honor.
(United States v. Berlanga-Rodriguez, 1:13-cr-58, Plea Hr’g Tr. 4, ECF No. 39.) On appeal,
Movant did not argue that his plea was unknowing and involuntary, but rather that “his
sentence is substantively unreasonable because the district court ignored his request for a
variance and information raised in his sentencing memorandum, resulting in a sentence that
is longer than necessary to meet the goals of 18 U.S.C. § 3553(a).” United States v.
Berlanga-Rodriguez, 574 F. App’x 660, 660 (6th Cir. 2014); see also United States v.
Berlanga-Rodriguez, R. 22. Movant has not shown “cause” and “actual prejudice,” or argued
5
“actual innocence.” Accordingly, Movant has procedurally defaulted on his claim that his
plea was unknowing and involuntary.
Regardless, even if Movant had not defaulted on this claim, for the reasons stated in
the next section, the Court finds that Movant’s plea was in fact knowing and voluntary.
B. Ineffective Assistance of Counsel
Movant next argues that his counsel’s advice that Movant’s sentence would likely be
15 years, rather than the 30-year sentence Movant actually received, constitutes ineffective
assistance of counsel. To make out a claim of ineffective assistance of counsel, Movant must
show that counsel’s representation fell below an objective standard of reasonableness, and
that counsel’s deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668,
687-88 (1984). “The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Id. at 686. “Judicial scrutiny of
counsel’s performance must be highly deferential.” Id. at 689. “[A] court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. To
establish prejudice, Movant must show a reasonable probability that counsel’s errors affected
the outcome of the proceeding. Id. at 696.
6
Movant has failed to show that his counsel’s representation fell below an objective
standard of reasonableness, because the evidence indicates that counsel did not inform
Movant that his sentence would likely be 15 years rather than the 30-year sentence Movant
actually received. Thus, Movant’s argument that counsel’s advice was constitutionally
deficient and led to an unknowing and involuntary plea has no merit.
Movant’s trial counsel submitted an affidavit to this Court stating, “[a]t no time did
I tell [Movant] that he would receive the mandatory minimum sentence of 15 years. I did tell
[Movant] that I would ask the Court to sentence him to the mandatory minimum sentence of
15 years, but I never told [Movant] what sentence he would receive.” (Kaczor Aff. 2, ECF
No. 10.) Counsel clarified both that he “never told [Movant] that he would receive the
mandatory minimum of 15 years” and that he “never told [Movant] that his ‘guidelines’
sentence was between 12 and 15 years.” (Id. at 4.) Further, under penalty of perjury, the
following exchange occurred at Movant’s plea hearing:
THE COURT: Has anyone made any promises of leniency or prediction as to
what the sentence would be other than that which I have just advised you
concerning the minimum and maximum penalties?
DEFENDANT BERLANGA RODRIGUEZ: No, Your Honor.
THE COURT: Is your plea undertaken here freely and voluntarily this
morning?
DEFENDANT BERLANGA-RODRIGUEZ: Yes, Your Honor.
(Plea Hr’g Tr. 8, ECF No. 39) (emphasis added). Movant’s counsel also attached several
7
documents to his affidavit, showing that counsel informed Movant the guideline range was
360 months. (ECF Nos. 10-1, 10-2, 10-3, 10-4, 10-5.)
Because the evidence shows that Movant’s counsel did not inform Movant that his
sentence would likely be 15 years, Movant’s claim that counsel’s advice was constitutionally
deficient is meritless, as is Movant’s claim that this advice caused Movant to enter an
unknowing and involuntary guilty plea.
IV.
For the reasons stated, Movant’s motion to vacate, set aside, or correct the sentence
imposed upon him will be denied. Further, because Movant’s allegations “cannot be accepted
as true because they are contradicted by the record,” no evidentiary hearing is required. See
Valentine, 488 F.3d at 333.
A judgment will enter consistent with this Opinion.
Date: December 31, 2015
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?