Magana-Sanchez v. USA

Filing 13

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that Adan Magana- Sanchez's amended petition under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 10 is DENIED. Petitioner 9;s Motion is DISMISSED, with prejudice. IT IS FURTHER ORDERED that Petitioner's petition to consider possible submission of a § 2255 motion [ECF No. 1 is DENIED as moot. IT IS FURTHER ORDERED that the Court shall not issue a certificate of appealability as to any claim raised in Petitioner's 2255 Motion. Signed by District Judge E. Richard Webber on 3/27/17. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ADAN MAGANA-SANCHEZ,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:16CV001052 ERW

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Adan Magana-Sanchez’s amended petition
under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence [ECF No. 10].
I.

BACKGROUND
On September 19, 2013, Petitioner was indicted for conspiring to distribute

methamphetamine (Count I), and conspiring to commit money laundering (Count II).1 With
regard to Count I--conspiring to distribute methamphetamine--the indictment stated “the quantity
of methamphetamine involved in the offense was fifty grams or more, punishable under Title 21,
United States Code, Section 841(a)(1)(A)(viii).”
On October 14, 2014, Petitioner pled guilty to both Counts. During the plea hearing, the
indictment was read to Petitioner, and he was advised Count I was punishable under §
841(b)(1)(A) as it involved more than fifty grams of methamphetamine. When asked if he
understood the charges against him, Petitioner replied he did. In addition, the plea agreement
stated, as to Count I, Petitioner “admits there is a factual basis for the plea,” and an element of
the crime was satisfied as he “entered into an agreement or understanding to distribute in excess
of fifty grams of methamphetamine . . . [.]”
1

See United States v. Adan Magana-Sanchez, No. 4:13CR375 ERW.
1

The plea agreement further asserted the parties stipulated and agreed to the following
facts: Petitioner entered into an agreement with Juan Sanchez-Hernandez ("Sanchez"), Ismael
Miranda-Zarco ("Miranda") and others to distribute methamphetamine in the Eastern District of
Missouri and elsewhere. Large quantities of methamphetamine were provided to Petitioner and
Sanchez by Miguel Ceja-Pedrizco and Marco Ceja. Miranda obtained the methamphetamine
from Petitioner and Sanchez, and arranged for the transportation of the methamphetamine to
Missouri. Miranda sold the methamphetamine to distributors in Missouri who paid for the
methamphetamine after distributing it to other individuals. Significant proceeds were generated
from the sale of large quantities of methamphetamine by members of the conspiracy. Petitioner
instructed Miranda how to return the proceeds from the methamphetamine sales to Petitioner and
other members of the conspiracy. Miranda then directed the distributors to deposit cash from
banks in Missouri to bank accounts in Texas and Washington.
On September 28, 2012, Sanchez was stopped in Montana with “974 grams of
methamphetamine (actual).” Sanchez was transporting the methamphetamine at the direction of
Petitioner from Washington to Minnesota. During October, 2012, Petitioner contacted Pedrizco
in order to get him to ship the methamphetamine faster. Pedrizco arranged for methamphetamine
to be delivered from Mexico to a stash house in California. Sanchez was to pick up the
methamphetamine at Petitioner's direction and to deliver it to other individuals. On November
17, 2012, Maria Munoz-Ramirez was stopped at a border check-point with “3.1 kilograms of
methamphetamine (actual).” The methamphetamine was going to be delivered to Petitioner and
Sanchez. With respect to Petitioner, the amount involved in the conspiracy attributable to him as
a result of his own conduct, and the conduct of other conspirators reasonably foreseeable to him,
was “more than 1.5 kilograms of methamphetamine (actual).”

2

In exchange for Petitioner’s voluntary plea of guilty to Counts I and II, the government
made certain concessions in the plea agreement. Specifically, the government agreed no further
federal prosecution would be brought in the district relative to Petitioner’s distribution of
methamphetamine and conspiracy to commit money laundering between November, 2011 and
September, 2013. The government also agreed not to file an information regarding Petitioner’s
prior conviction, which would have resulted in a mandatory minimum sentence of 20 years’
imprisonment for Count I.
At the plea hearing, Petitioner acknowledged, under oath, he had the opportunity to read
the plea agreement in its entirety before signing it. Also during the hearing, the government
recited the same factual basis for Petitioner’s plea just outlined above. Petitioner confirmed
under oath he had no disagreement with any of the facts.
A presentence report was prepared and Petitioner’s guideline range was 210 to 262
months imprisonment. On January 9, 2015, Petitioner was sentenced to 190 months
imprisonment. On March 11, 2015, Petitioner appealed his judgment and sentence. The United
States Eighth Circuit Court of Appeals issued a per curiam opinion affirming the District Court’s
judgment.
Petitioner filed a motion for post-conviction relief, styled “petition to consider possible
submission of a § 2255 motion” [ECF No. 1], on June 24, 2016, pursuant to 28 U.S.C. § 2255.
In that motion, Petitioner claimed he was entitled to relief under Johnson v. United States, 135
S.Ct. 2551 (2015).2 On July 5, 2016, this Court entered an order giving the Public Defender’s
2

In Johnson, the Supreme Court held the residual clause of the Armed Career Criminal Act’s
“violent felony” definition is void for vagueness. The residual clause defines “violent felony” to
include an offense that “involves conduct that presents a serious potential risk of physical injury
to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Petitioner, however, was not classified as an Armed
Career Criminal. As the “residual clause” was not implicated in any way, Johnson provides
petitioner no avenue for relief.
3

Office forty-five days to file an amended motion to vacate under § 2255. On August 23, 2016,
Petitioner filed a “First Supplement” to his motion for post-conviction relief, which abandoned
the Johnson claim. The Public Defender’s Office subsequently filed a notice to the Court that
counsel had determined there was nothing in the record that would support any relief for
Petitioner pursuant to Johnson.
On December 13, 2016, Petitioner filed an amended petition for post-conviction relief
under 28 U.S.C. § 2255 [ECF No. 10].3

The petition alleged his trial counsel provided

constitutionally ineffective assistance by 1) failing to challenge the purity and weight of the
methamphetamine for which he was sentenced, and 2) failing to challenge the jurisdiction of the
Eastern District of Missouri for improper venue.
II.

LEGAL STANDARD
A federal prisoner who seeks relief from a sentence on grounds “that the sentence was

imposed in violation of the Constitution or the 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, may move the court which
imposed the sentence to vacate, set aside, or correct the sentence.” 28 U.S.C. § 2255(a). To
obtain relief under § 2255, the movant must establish a violation constituting “a fundamental
defect which inherently results in the miscarriage of justice.” U.S. v. Gomez, 326 F.3d 971, 974
(8th Cir. 2003) (quoting U.S. v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)).
Claims brought under § 2255 may 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. U.S., 25 F.3d 704, 706 (8th Cir. 1994)
3

As Petitioner abandoned the Johnson claim referenced in his first request for habeas relief filed on June 24, 2016,
[ECF No. 1], and he subsequently filed an amended petition under § 2255 [ECF No. 10], his original petition will be
denied as moot.
4

(citing Bedford v. U.S., 975 F.2d 301, 313 (7th Cir. 1992)). Claims, including those concerning
constitutional or jurisdictional issues, unraised on direct appeal cannot be subsequently raised in
a § 2255 motion, unless the movant can establish “(1) cause for the default and actual prejudice
or (2) actual innocence.” U.S. v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (citing Bousley v.
U.S., 523 U.S. 614, 621 (1998)).
However, ineffective assistance of counsel claims may be raised for the first time in a §
2255 motion, even if they could have been raised on direct appeal. Massaro v. United States, 538
U.S. 500, 504 (2003). This exception is in place to prevent petitioners from being forced “to raise
the issue before there has been an opportunity fully to develop the factual predicate for the
claim.” Id. Additionally, a petitioner=s attorney may serve as counsel for both the trial and
appellate case, and it is unlikely that the attorney would raise a claim of his own ineffective
assistance on appeal. See United States v. Rashad, 331 F.3d 908, 911 (D.C. Cir. 2003).
If a movant is not procedurally barred from bringing a § 2255 motion, the Court must
hold an evidentiary hearing to consider claims made therein “[u]nless the motion and the files
and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. §
2255(b); see also Shaw v. U.S., 24 F.3d 1040, 1043 (8th Cir. 1994). Thus, a movant is entitled to
an evidentiary hearing as long as “the facts alleged, if true, would entitle [the movant] to relief.”
Payne v. U.S., 78 F.3d 343, 347 (8th Cir. 1996) (quoting Wade v. Armontrout, 798 F.2d 304, 306
(8th Cir. 1986)). A court may dismiss a claim without an evidentiary hearing, in contrast, “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 (citing Larson v. U.S., 905 F.2d 218, 220–21 (8th Cir.
1990)).
III.

DISCUSSION

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Petitioner asserts two grounds for relief in his amended petition. In his first ground, he
asserts his counsel was ineffective related to the purity level and weight of methamphetamine.
Specifically, Petitioner claims there was no laboratory analysis to support the quantity of
methamphetamine stated in the indictment. Petitioner argues his counsel’s erroneous failure to
challenge the purity of the alleged methamphetamine resulted in Petitioner being sentenced
under 21 U.S.C. § 841(b)(1)(A) without sufficient evidence. Petitioner maintains he made no
admissions that the conspiracy involved a quantity of methamphetamine that would implicate
sentencing under § 841(b)(1)(A).4
To establish a claim for ineffective assistance of counsel, a defendant must show the
counsel’s performance was deficient and counsel’s deficiency prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). Prejudice requires the defendant to show he was
deprived of a fair trial because of the deficiency. Id. Under the first prong, the measure of an
attorney’s performance is “reasonableness under prevailing professional norms.” Id. at 688.
“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. To establish
the second prong of prejudice, the defendant must show “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. When a defendant has pled guilty, the defendant must demonstrate 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.” Matthews v. United States, 114 F.3d 112, 114 (8th Cir.
4

Title 21 U.S.C. § 841 states:
(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or
intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a
controlled substance[.] . . .
(b) . . .[A]ny person who violates subsection (a) of this section shall be sentenced as follows:
(1)(A) In the case of a violation . . . involving . . . (viii) 50 grams or more of methamphetamine, its salts,
isomers, and salts of its isomers or 500 grams or more of a mixture or substance containing a detectable
amount of methamphetamine, its salts, isomers, or salts of its isomers; . . . such person shall be sentenced
to a term of imprisonment which may not be less than 10 years or more than life . . . [.]
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1997) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). A court need not address both prongs
of the analysis if the defendant makes an insufficient showing on either prong. Strickland, 466
U.S. at 697.
A guilty plea and representations made by a defendant during the plea-taking create a
“strong presumption of verity and pose a formidable barrier in any subsequent collateral
proceedings.” Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997). When a defendant
admits he is satisfied with his lawyer, there were no threats or promises to induce him to plead,
and he voluntarily admits his guilt, he has a “heavy burden” to show his plea was involuntary. Id.
“Once a person has entered a guilty plea, any subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as are contentions that in the face of
the record are wholly incredible.” Tran v. Lockhart, 849 F.2d 1064, 1068 (8th Cir. 1988).
Petitioner’s first claim must be denied as it is refuted by the record. Although Petitioner
asserts he made no admission to support the quantity of Methamphetamine, the record of his plea
indicates otherwise. At the plea hearing, the indictment was read to Petitioner, advising him the
offense was punishable under 21 U.S.C. § 841(b)(1)(A) as it involved more than fifty grams of
methamphetamine. Petitioner indicated to the court under oath he understood the charges.
In addition, the plea agreement stated Petitioner admitted he entered into an agreement to
distribute in excess of fifty grams of methamphetamine. The agreement further specified the
amount of methamphetamine involved in the conspiracy attributable to Petitioner as a result of
his own conduct, and the conduct of other conspirators reasonably foreseeable to him, was more
than 1.5 kilograms of actual methamphetamine. Petitioner acknowledged under oath he had the
opportunity to read the plea agreement in its entirety before signing it.

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Moreover, at the plea hearing, Petitioner admitted the amount of methamphetamine
seized was 994 grams and 3.1 kilograms of actual methamphetamine. Also, the government, in
setting forth the factual basis for the plea, again stated the amount of methamphetamine involved
in the conspiracy attributable to Petitioner was more than 1.5 kilograms of actual
methamphetamine. Petitioner immediately confirmed he had no disagreement with this fact.
“Solemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison,
431 U.S. 63, 74 (1977).
Because Petitioner admitted multiple times to the quantity of actual methamphetamine
for which he was sentenced, his counsel was not ineffective for failing to challenge the weight
and purity of the methamphetamine as sufficient evidence under 21 U.S.C. § 841(b)(1)(A).
Furthermore, Petitioner has failed to establish he was prejudiced and would have insisted on
going to trial had counsel challenged the purity of the methamphetamine. See Matthews, 114
F.3d at 114. The record of the plea does reflect, however, that Petitioner received significant
benefits in exchange for his guilty plea.
Here, Petitioner is not entitled to a hearing on his claim for relief as the record
affirmatively refutes the factual assertions upon which Petitioner’s claim is based. Accordingly,
the Court will deny Petitioner’s first claim for habeas relief.
In Petitioner’s second ground for relief, he claims venue in the Eastern District of
Missouri was improper. He argues his counsel’s failure to object to venue at his plea hearing and
sentencing constitutes deficient performance.

Specifically, Petitioner claims there was no

admission that provides a basis for venue in the Eastern District of Missouri; and, there are no
facts in the plea agreement that establish venue in the Eastern District of Missouri.

8

At the outset, the Court notes Petitioner’s direct challenge to venue in the district court is
procedurally barred. Venue is not subject to collateral attack in a § 2255 proceeding. See Houser
v. United States, 508 F.2d 509 at 515 n. 24 (8th Cir. 1974); Entrekin v. United States, 508 F.2d
1328, 1330 (8th Cir. 1974). In order to establish his related claim of ineffective assistance of
counsel, Petitioner must show counsel’s failure to object to venue was deficient. Here, had
Petitioner’s counsel objected to venue, his objection would have been overruled as venue was
proper in the Eastern District of Missouri.
Under 18 U.S.C. § 3237(a):
Except as otherwise expressly provided by enactment of Congress, any offense
against the United States begun in one district and completed in another, or
committed in more than one district, may be inquired of and prosecuted in any
district in which such offense was begun, continued, or completed.
Venue is proper in conspiracy cases “in any jurisdiction in which an overt act in furtherance of
the conspiracy was committed by any of the conspirators.” United States v. Bascope-Zurita, 68
F.3d 1057, 1062 (8th Cir. 1995), cert. denied, 516 U.S. 1062, 116 S.Ct. 741, 133 L.Ed.2d 690
(1996). See also Prosper v. United States, 218 F.3d 883, 884 (8th Cir. 2000)
In this case, the record establishes that numerous overt acts of the conspiracy occurred in
the Eastern District of Missouri. Both the plea agreement and the facts recited by the government
at the plea hearing describe how Petitioner and other members of the conspiracy distributed
methamphetamine and committed money laundering. Specifically, the following facts were set
forth asserting the conspiracy’s nexus with Missouri: Petitioner entered into an agreement with
Sanchez, Miranda and other co-conspirators to distribute methamphetamine in the Eastern
District of Missouri and elsewhere. Miranda obtained large quantities of methamphetamine from
Petitioner and Sanchez, and arranged for the transportation of the methamphetamine to Missouri.
Miranda sold the methamphetamine to distributors in Missouri who paid for the
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methamphetamine after distributing it to other individuals. Petitioner instructed Miranda how to
return the significant proceeds generated from methamphetamine sales to Petitioner and other
members of the conspiracy. Miranda accordingly instructed the distributors to deposit cash from
banks in Missouri to bank accounts in Texas and Washington. At the plea hearing, Petitioner
confirmed he had no disagreement with any of these facts.
Because overt acts in furtherance of the conspiracy were committed in Missouri, venue
appears proper. Any objection by counsel would have been overruled. Petitioner’s counsel is not
ineffective for failing to advance a meritless argument. Rodriguez v. United States, 17 F.3d 225,
226 (8th Cir. 1994). Thus, counsel’s performance was not deficient and the Court need not reach
a determination of the prejudice prong. See Strickland, 466 U.S. at 697 (A court need not
address both prongs of the analysis if the defendant makes an insufficient showing on either
prong). The Court will dismiss Petitioner’s claim without an evidentiary hearing as the records
of the case conclusively show that the prisoner is entitled to no relief.
IV.

CERTIFICATE OF APPEALABILITY
The Court finds that Petitioner has not made a substantial showing of the denial of a

constitutional right, as is required before a certificate of appealability can issue. See Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997) (explaining that a Asubstantial showing@ is a showing
the Aissues are debatable among reasonable jurists, a court could resolve the issues differently, or
the issues deserve further proceedings@). Therefore, the Court shall not issue a certificate of
appealability as to any claims raised in Petitioner=s ' 2255 Motion.
Accordingly,

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IT IS HEREBY ORDERED that Adan Magana-Sanchez=s amended petition under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF
No. 10] is DENIED. Petitioner=s Motion is DISMISSED, with prejudice.
IT IS FURTHER ORDERED that Petitioner’s petition to consider possible submission
of a § 2255 motion [ECF No. 1] is DENIED as moot.
IT IS FURTHER ORDERED that the Court shall not issue a certificate of appealability
as to any claim raised in Petitioner=s ' 2255 Motion.
So Ordered this 27th day of March, 2017.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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