Vargas-Salgado v. USA

Filing 10

MEMORANDUM AND ORDER: For the foregoing reasons, the § 2255 Petition is dismissed. IT IS FURTHER ORDERED this Court will not issue a certificate ofappealability because Vargas-Salgado has not made a substantial showing of the denial of a federal constitutional right. Signed by District Judge Stephen N. Limbaugh, Jr on 9/25/2018. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
AGUSTIN VARGAS-SALGADO,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:17CV02108 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set
aside or correct sentence by Agustin Vargas-Salgado, a person in federal custody. On
September 7, 2016, Vargas-Salgado pled guilty to the offense of Conspiracy to
Distribute and Possess with the Intent to Distribute Cocaine and Cocaine Base, and
on November 30, 2016, this Court sentenced Vargas-Salgado to the Bureau of Prisons for
a term of 120 months, a sentence within the sentencing guideline range. VargasSalgado’s § 2255 action, which is based on several allegations of ineffective assistance of
counsel, is fully briefed and ripe for disposition.
I. PROCEDURAL HISTORY
On September 7, 2016, defendant/petitioner Agustin Vargas-Salgado pleaded guilty
before this Court in Case No. 4:10CR00302 SNLJ to conspiracy to distribute and possess
with intent to distribute five kilograms or more of cocaine. (Docs. 412, 413). As part of
the guilty plea agreement, the United States agreed that no further federal prosecution
would be brought in this District relative to Vargas-Salgado’s participation in a

conspiracy to distribute or possess with intent to distribute cocaine, cocaine base or
marijuana, from November 2009 through June 10, 2010, of which the Government was
aware and that it would forego the filing of an information pursuant to Title 21, United
States Code, Section 851 detailing Vargas-Salgado’s prior drug conviction.1 See Guilty
Plea Agreement, pp. 1-2.
Additionally, Vargas-Salgado waived his right to appeal the conviction and sentence
in the event this Court sentenced him within or below the guidelines range. Guilty Plea
Agreement, pp. 8-9. Vargas-Salgado further waived his right to contest the conviction or
sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. § 2255,
except for claims of prosecutorial misconduct or ineffective assistance of counsel. Guilty
Plea Agreement, p. 9.
Following the entry of Vargas-Salgado’s plea of guilty, this Court ordered the
preparation of a Presentence Investigation Report (PSR). The United States Probation
Office concluded that, after calculating the correct total offense level and criminal history
category and applying the statutory mandatory minimum, the advisory sentencing
guideline range was 120-121 months. PSR, ¶ 73. Neither Vargas-Salgado nor the
Government objected to the PSR.
On November 30, 2016, this Court sentenced Vargas-Salgado to 120 months, the
statutory mandatory minimum. (Doc. 422). That same day, Vargas-Salgado’s attorney
filed a Notice of Certification of Compliance with Local Rule 12.07, signed by Vargas-

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A Spanish translator interpreted all of the criminal proceedings for Vargas-Salgado, a Spanish
speaker.

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Salgado indicating that he had been fully informed of his right to appeal the final
judgment, did not wish to file a notice of appeal, and instructed his attorney not to file a
notice of appeal. (Doc. 424). Vargas-Salgado did not appeal his conviction; however, he
filed the instant § 2255 motion on July 24, 2017.
II. VARGAS-SALGADO’S GROUND FOR RELIEF
In the instant § 2255 motion, Vargas-Salgado argues that he received ineffective
assistance of counsel because his defense counsel failed to file an appeal, and made
“glaring and deliberate lies which misled” him. Memo in Support, p. 3. For relief,
Vargas-Salgado requests “The Vacatur [sic] of the conviction and his case remanded to
court for the holding of an evidentiary hearing to develope [sic] the record to resolve the
disputed facts relating to the issues presented herein.” Motion, p. 7.
III. DISCUSSION
For Vargas-Salgado to prevail on his claim of ineffective assistance of counsel, he
generally must establish that (1) counsel’s performance fell below an objective standard
of reasonableness; and (2) that he suffered prejudice as a result. Strickland v. Washington,
466 U.S. 668, 687-88 (1984). An attorney’s failure to file a requested appeal
automatically satisfies the deficient-performance prong of Strickland, because it is
“professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000); see also
Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007). No showing of prejudice is
required because an attorney’s failure to file a requested appeal amounts to the denial of
counsel’s assistance at a critical stage of the judicial proceeding. See United States v.
Cronic, 466 U.S. 648, 659 (1984); Barger v. United States, 204 F.3d 1180, 1182 (8th Cir.
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2000). The Eighth Circuit has extended this presumption of prejudice even to cases
where, like here, a petitioner has waived his right to appeal. Witthar v. United
States, 793 F.3d 920, 923 (8th Cir. 2015). So, if the evidence shows that a petitioner
asked counsel to appeal and counsel refused, the petitioner is entitled to relief, even if he
has waived that appellate right. Id.; Watson, 493 F.3d at 923. On the other hand, “a
defendant who explicitly tells his attorney not to file an appeal plainly cannot later
complain that, by following his instructions, his counsel performed deficiently.” FloresOrtega, 528 U.S. at 477.
Thus, the question here is whether the record and evidence show that Vargas-Salgado
requested an appeal and counsel refused or whether instead, Vargas-Salgado told his
attorney not to file an appeal. In making that determination, “a petitioner is entitled to an
evidentiary hearing on a section 2255 motion unless ‘the motion and the files and the
records of the case conclusively show that [he] is entitled to no relief.’” Anjulo-Lopez v.
United States, 541 F.3d 814, 817 (8th Cir. 2008) (quoting 28 U.S.C. § 2255(b)).
However, no hearing is required where the claim is inadequate on its face or if the record
affirmatively refutes the factual assertions upon which it is based.” Id.
A review of Vargas-Salgado’s motion and supporting memorandum reveal the
following allegations with respect to his assertion that he conveyed to his attorney a
desire to appeal:
1. I told my lawyer that I want to appeal. But when I wrote to his2 office,
they told me that there was no appeal in progress. Motion, p. 3

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Vargas-Salgado repeatedly refers to his defense attorney as a male throughout his pleadings.

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2. My lawyer led to believe that would appeal the conviction. Motion, p. 4
3. I told my lawyer Chastidy Dillon-Amelung for the purpose of the appeal,
but apparently he failed to appeal the conviction. Motion, p. 5
4. Despite having been retained as counsel for appeal, attorney Chastidy
Dillon-Amelung, inexplicable failed to file a notice to appeal, and instead,
deliberately misled and lied to Petitioner that he would ultimately
challenge his sentence. Memorandum in Support, pp. 1-2.
5. Vargas states that at the sentencing hearing, immediately after the court
advised him that he had 14 days to file a notice of appeal, he told former
counsel to file a notice of direct appeal. Memorandum in Support, p. 2.
6. Vargas avers that counsel never explained to him the advantages or
disadvantages of taking an appeal. Memorandum in Support, p. 2.
7. Vargas clearly and adamantly requested to counsel that he wanted his
‘unreasonable’ sentenced [sic] to be appeal [sic]. Vargas avers that he tried
calling the attorney, also two member [sic] of his family Anselma Vargas
(sister) and Dora Juarez (daughter-in-law) but they never can reach him.
Memorandum in Support, pp. 2-3.
8. Vargas was abandoned by an attorney who lay [sic] him and led him to
believe that he would challenge his conviction and sentence in federal
Court. Moreover, Vargas was affirmatively led to believe that this
conviction was begin [sic] challenged in federal court, only to find out,
after writing his attorney a letter, that such an endeavor was not pursued.
(see exhibit #2). Memorandum in Support, p. 4.
9. Vargas avers that he was unaware that his attorney had not purse [sic] the
direct appeal. Vargas avers that he realized him [sic] on his own, when he
wrote him on June, 2017 seeking the status of his appeal. Memorandum
in Support, p. 5.
As for documentation for his claims, Vargas-Salgado attaches Exhibit 2, a letter from
his counsel, Chastidy Dillon-Amelung, that states, “This letter is in response to your
inquiry regarding a Direct Appeal to the above referenced case number. I have verified
with the court that no Appeal is pending for your case.” Exhibit 2. He does not attach any
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letter or specific allegation as to what the “inquiry regarding a Direct Appeal” was.
Vargas-Salgado’s averments are largely vague, self-serving and speculative. He
argues that he was “led to believe” certain things with respect to his appeal, but does not
specify who led him to believe those things or what was said which led him to those
beliefs. Additionally, it is not reasonable to believe that the first time he would have
asked about an appeal of his November 30, 2016 sentencing would be in June of 2017.
Additionally, and even more importantly, the aforementioned claims directly
contradict the record, and the attached affidavit of Vargas-Salgado’s defense attorney,
Chastidy Dillon-Amelung. The only remotely specific allegation regarding a desire to
appeal the sentence Vargas-Salgado makes is that “at the sentencing hearing,
immediately after the court advised him that he had 14 days to file a notice of appeal, he
told former counsel to file a notice of direct appeal.” However, this statement is directly
contradicted by the filing of the Notice and Certification of Compliance with Local Rule
12.07 that same date. (Doc. 424). The form, bearing Vargas-Salgado’s signature,
specifically states, “I have been fully informed of my right to appeal the final judgment in
this case, I do not wish to file a Notice of Appeal, and I have instructed my attorney not
to file a Notice of Appeal.” This is wholly inconsistent with Vargas-Salgado’s current
statement that, upon sentencing, he immediately requested the filing of a notice of appeal.
Additionally, Ms. Dillon-Amelung has provided an affidavit, attached hereto, and her
recitation of the events surrounding Vargas-Salgado’s lack of a desire to appeal are
completely consistent with Vargas-Salgado’s signed pleading. Specifically, Ms. DillonAmelung states, “At no time did Mr. Vargas Salgado request me to file an Appeal on his
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behalf.” Id. Additionally, she provides, “Mr. Vargas Salgado speaks very limited English
and as a result, I had interpreter, Fernando Torres, present to review the 12.07(A)
notice; with myself and Mr. Vargas-Salgado. Mr. Torres’ presence was in addition to the
Court interpreter present via phone.” Id.
Ms. Dillon-Amelung’s affidavit relays that the defense strategy was to cooperate with
authorities by providing information in hopes that it would lead to a “substantial
assistance” determination so that Vargas-Salgado could pursue a Rule 35 motion, not an
appeal of his statutory mandatory minimum sentence. To that end, Ms. Dillon-Amelung
has attached to her affidavit relevant documentation of that strategy for the Court’s
review.
The fact that Vargas-Salgado entered into an appeal waiver and was sentenced to the
statutory mandatory minimum, while not determinative (as detailed above), is further
evidence that Ms. Dillon-Amelung’s recitation of the facts and the Notice signed by
Vargas-Salgado that he directed her not to appeal are reliable. Vargas-Salgado’s
pleadings do not allege that he later changed his mind and requested that Ms. DillonAmelung file an appeal. Instead, the only specific request he says he relayed to her
occurred immediately following the imposition of sentence. That is completely
contradicted by his signed statement that he directed her not to file the appeal. VargasSalgado’s other vague and conclusory statements similarly fail to refute the
record in this matter, which instead indicates that he directed counsel not to file an
appeal.
As such, counsel was not ineffective for following Vargas-Salgado’s instruction. She
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instead followed the predetermined strategy of seeking a Rule 35 reduction in sentence,
the only strategy that would allow for a sentence below 120 months.
“When a district court receives conflicting statements—one from a § 2255 petitioner
and one from her former counsel—the court cannot ‘mak[e] a factual determination based
on the relative credibility of [these individuals] without the benefit of an evidentiary
hearing.’” Witthar, 793 F.3d at 923 (quoting Franco v. United States, 762 F.3d 761, 765
(8th Cir. 2014)). However, here, this claim may be dismissed without an evidentiary
hearing because the record “affirmatively refutes the factual assertions upon which it is
based.” Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994).
This case is distinguishable from cases like Witthar v. United States, 793 F.3d 920
(8th Cir. 2015), and Franco v. United States, 762 F.3d 761 (8th Cir. 2014), where the
district court received conflicting affidavits from the defendant and the attorney. In those
cases, neither affidavit was, on its face, more credible than the other. Here, Ms. DillonAmelung’s affidavit contains dramatically more specificity as to the lack of a request to
appeal and the explanation of an alternative strategy. Ms. Dillon-Amelung’s affidavit is
corroborated by the record filings and the fact that Vargas-Salgado’s chances of
challenging the reasonableness of his sentence on appeal would have been barred by the
appeal waiver and rejected under current law, which clearly holds that the statutory
mandatory minimum sentence is not unreasonable.
On the other hand, Vargas-Salgado’s affidavit is vague and conclusory and is in direct
contradiction with his own signed statement (made with the assistance of a translator).
While generally § 2255 entitles a movant to a hearing on the merits of his petition, there
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is a well-established exception to this rule when the files and records of the case
conclusively show that the petitioner is not entitled to relief. Hodges v. United States,
368 U.S. 139, 140 (1961); Check v. United States, 858 F.2d 1330, 1333 (8th Cir. 1988).
This appears to be such a case.

CONCLUSION
For the foregoing reasons, the § 2255 Petition is dismissed.
IT IS FURTHER ORDERED this Court will not issue a certificate of
appealability because Vargas-Salgado has not made a substantial showing of the denial of
a federal constitutional right.
Dated this 25th day of September, 2018.

_____________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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