Noriega-Millan v. United States of America
Filing
13
OPINION, MEMORANDUM AND ORDER re: 1 : ORDERED that the Motion to Vacate, Set aside or Correct Sentence, [Doc. 1], is DENIED. FURTHER ORDERED that this Court will not issue Certificates of Appealability as Movant has not made a substantial showing of the denial of a federal constitutional right. A separate judgment is entered this same date.. Signed by District Judge Henry E. Autrey on 1/24/14. (CEL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NILO NORIEGA-MILLAN,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
)
)
)
)
)
)
)
)
)
No. 4:11CV113 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Movant’s Motions under 28 U.S.C. §
2255 by a Person in Federal Custody, [Doc. No. 1 in each case], to Vacate, Set
Aside or Correct Sentence. Pursuant to this Court’s Order, the government has
responded to the motion to vacate. For the reasons set forth below, the motion is
denied without hearing.
Movant’s Claims
Movant makes the following claims in his Motion:
Ground One: Department of Homeland Security and Immigration and Customs
Enforcement’s failure to properly remove the Petitioner.
Ground Two: “The Petitioner having presented proper documentation as to place
of birth and citizenship, the government elected to remove the petitioner to a
country that had not formally accepted the petitioner by approving traveling
documents, an action that has subjected the Petitioner to cruel and unusual
punishment by exposing the Petitioner to physical injury sustained in a foreign
country by a capricious act on the part of the government.
Ground Three: Ineffective assistance of counsel.
Facts and Background
Movant was indicted on one count of being illegally in the United States.
Movant plead guilty, to this count on December 7, 2009.
A presentence investigation report was prepared, as ordered by the Court.
The Court held a sentencing hearing at which counsel raise the issue of
Movant’s removal to Mexico. Petitioner stated that his deportation to Mexico was
“terrible for [him] because his family was waiting for [him] in Peru, and that was
not [his] fault because [he] was placed in a country that was not [his] country, and
that is why [he] was where [he was]. . .” Trial counsel asked the Court to include
in the judgment that Movant is from Peru. Movant admitted that removing him to
Mexico did not make his return to the United States legal, but only facilitated and
in a sense necessitated Movant’s return to the United States.
Movant appealed. Movant raised two appeal grounds: counsel was
ineffective for failing to argue that the Government “improperly” removed him by
deporting him to Mexico instead of to Peru. Secondly, Movant argued that this
-2-
Court failed to adequately consider mitigating circumstances. The Appellate
Court affirmed Movant’s conviction, declined to consider his ineffective
assistance of counsel claim and held that this Court committed no procedural
error.
Standards for Relief Under 28 U.S.C. 2255
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief from a
sentence imposed against him on the ground that “the sentence was imposed in
violation of the Constitution or law 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.” 28
U.S.C. § 2255. Claims brought under § 2255 may also be limited by procedural
default. A Movant “cannot raise a nonconstitutional or nonjurisdictional issue in a
§ 2255 motion if the issue could have been raised on direct appeal but was not.”
Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v.
United States, 975 F.2d 310, 313 (7th Cir. 1992)). Furthermore, even
constitutional or jurisdictional claims not raised on direct appeal cannot be raised
collaterally in a § 2255 motion “unless a petitioner can demonstrate (1) cause for
the default and actual prejudice or (2) actual innocence.” United States v. Moss,
252 F.3d 993, 1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614,
-3-
622 (1998)). Claims based on a federal statute or rule, rather than on a specific
constitutional guarantee, “can be raised on collateral review only if the alleged
error constituted a ‘fundamental defect which inherently results in a complete
miscarriage of justice.’” Reed v. Farley, 512 U.S. 339, 354 (1994)(quoting Hill v.
United States, 368 U.S. 424, 477 n. 10 (1962)).
The Court must hold an evidentiary hearing to consider claims in a § 2255
motion “unless the motion, files and records of the case conclusively show that the
prisoner is entitled to no relief.” Shaw v. United States, 24 F.3d 1040, 1043 (8th
Cir. 1994)(citing 28 U.S.C. § 2255). Thus, a “[movant] is entitled to an
evidentiary hearing ‘when the facts alleged, if true, would entitle [movant] to
relief.’” Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996)(quoting Wade v.
Armontrout, 798 F.2d 304, 306 (8th Cir. 1986)). The Court may dismiss a claim
“without an evidentiary hearing if the claim is inadequate on its face or if the
record affirmatively refutes the factual assertions upon which it is based.” Shaw,
24 F.3d at 1043.
Discussion
Standard for Ineffective Assistance of Counsel
It is well-established that a petitioner’s ineffective assistance of counsel
claim is properly raised under 28 U.S.C. § 2255 rather than on direct appeal.
-4-
United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy,
560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective
assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648,
658 (1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003). To prevail
on an ineffective assistance of counsel claim, a convicted defendant must first
show counsel’s performance “fell below an objective standard of reasonableness.”
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also
establish prejudice by showing “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id., at 694.
Both parts of the Strickland test must be met in order for an ineffective
assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,
753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires
a “showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Review of
counsel’s performance by the court is “highly deferential,” and the Court
presumes “counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. The court does not “second-guess” trial strategy or
rely on the benefit of hindsight, id., and the attorney’s conduct must fall below an
-5-
objective standard of reasonableness to be found ineffective, United States v.
Ledezma-Rodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the
alleged deficient performance) would have been rejected, counsel's performance is
not deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to
“eliminate the distorting effects of hindsight” by examining counsel’s performance
from counsel’s perspective at the time of the alleged error. Id.
The second part of the Strickland test requires that the movant show that he
was prejudiced by counsel’s error, and “that ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at
694). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. When determining if
prejudice exists, the court “must consider the totality of the evidence before the
judge or jury.” Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir.
2006).
The first prong of the Strickland test, that of attorney competence, is applied
in the same manner to guilty pleas as it is to trial convictions. The prejudice
prong, however, is different in the context of guilty pleas. Instead of merely
showing that the result would be different, the defendant who has pled guilty must
-6-
establish that “there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985); Matthews v. United States, 114 F.3d 114.
As the Government correctly argues, Movant is procedurally barred from
bringing the claims that there was improper removal, capricious improper removal
and violating due process for improper removal. “Claims not made during the
district court proceedings or on direct appeal are procedurally defaulted and may
not be raised for the first time in a § 2255 motion.” United States v. Hamilton, 604
F.3d 572, 574 (8th Cir. 2010). A defendant who fails to claim in the district court
or on direct appeal that his § 1326(a) conviction is defective because his prior
deportation was “improper” cannot raise such a claim in a § 2255 petition. See
United States v. Aguilar-Ortiz, 86 Fed.Appx. 390, *391, 2004 WL 103558, at **1
(10th Cir. Jan. 23, 2004).
Ineffective Assistance of Counsel
Movant challenges the effectiveness of counsel. Movant claims that
counsel was ineffective for failing to challenge his previous removal. This ground
is without merit in that the law focuses on removal from the United States, not to a
specific place to which the Government removes the illegal alien. There is no
ineffective assistance claim which requires counsel to make a frivolous argument.
-7-
See, 8 U.S.C. § 1326(a), which requires not that the Government remove an illegal
alien to a specific country.
Moreover, Movant’s claims regarding counsel’s performance prior to,
during and at sentencing are without merit. Movant advised the Court, in open
court and under oath, that he was fully satisfied with the work his lawyer had done
for him. When asked if there was anything he wanted his lawyer to do that he
failed to do, Movant advised the Court in the negative. Likewise, when asked if
there was anything at all that Movant wanted from his lawyer, Movant denied
same. Movant’s claims now that counsel failed is a crystal clear attempt to avoid
the consequences of the crime to which Movant voluntarily entered a guilty plea.
Movant also argues that he is entitled to relief because the parties did not
provide the Court with documents establishing that he is a Peruvian. The record
again belies this argument. Both Movant and his attorney told the Court that
Movant was Peruvian. However, as detailed above, citizenship is not relevant in a
Section 1326(a) conviction. The only issue is whether Movant was in fact,
removed from the United States, not whether he was removed to a particular
country.
Conclusion
Based upon the foregoing analysis, Movant’s claims fail to afford him relief.
-8-
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). A substantial showing of the denial of a constitutional right requires
that “issues are debatable among reasonable jurists, a court could resolve the
issues differently, or the issues deserve further proceedings.” Cox v. Norris, 133
F.3d 565, 569 (8th Cir. 1997). Based on the record, and the law as discussed
herein, the Court finds that Movant has not made a substantial showing of the
denial of a constitutional right.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or
Correct Sentence, [Doc. 1], is DENIED.
IT IS FURTHER ORDERED that this Court will not issue Certificates of
Appealability as Movant has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
Dated this 24th day of January, 2014.
_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
-9-
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?