Rojas-Guzman v. USA

Filing 2

ORDERED that the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (ECF No. 41 in Case No. 3:11-cr-88) is DENIED. FURTHER ORDERED that the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (ECF No . 1 in Case No. 3:14-cv-470) is STRICKEN, and the Clerk shall close that case. FURTHER ORDERED that the Clerk shall enter this Order into the dockets of both of the above-captioned cases. Signed by Judge Robert C. Jones on 10/15/2014. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,
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Plaintiff,
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vs.
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GUADALUPE ROJAS-GUZMAN,
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Defendant.
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________________________________________ )
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GUADALUPE ROJAS-GUZMAN,
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Plaintiff
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vs.
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UNITED STATES OF AMERICA,
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Defendant.
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________________________________________ )

3:11-cr-00088-RCJ-VPC-1

3:14-cv-00470-RCJ
ORDER

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Pending before the Court is Defendant’s Motion to Vacate, Set Aside or Correct Sentence
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Pursuant to 28 U.S.C. § 2255 (ECF No. 41).1 For the reasons given herein, the Court denies the
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motion.
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I.

FACTS AND PROCEDURAL HISTORY

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Defendant Guadalupe Rojas-Guzman pled guilty to one count of Unlawful Reentry by a
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Deported, Removed, or Excluded Alien, 8 U.S.C. 1326(a), and the Court sentenced him to 240
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Except where otherwise noted, all citations to the record in this Order refer to Case No.
3:11-cr-88.

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months imprisonment. (See Am. J. 1–2, ECF No. 35). The Court simultaneously sentenced

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Defendant to 264 months imprisonment for a separate offense charged in Case No. 3:10-cr-109.

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Defendant appealed both convictions and sentences. The Court of Appeals affirmed in both

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cases, noting that Defendant had not raised any claims of error as to the conviction for unlawful

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reentry and had therefore waived any claims in this case. (See Mem. Op. 2 n.1, June 19, 2013,

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ECF No. 38). The mandate issued on July 12, 2013. (See Mandate, ECF No. 39). Defendant has

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filed the present motion, asking the Court to vacate, set aside, or correct his sentence under 28

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U.S.C. § 2255. Defendant has filed the motion both in the underlying criminal case and

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separately such that the Clerk has opened a second, civil case based on the motion. Only the

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filing of the motion in the underlying criminal case was proper. The Court will therefore strike

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the motion in the separate civil case and order the Clerk to close that case. The Court will

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address the motion in the underlying criminal case.

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II.

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LEGAL STANDARDS
Substantive legal arguments not raised on direct appeal are said to be “procedurally

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defaulted” and cannot be raised later in a collateral attack. See Massaro v. United States, 538

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U.S. 500, 504 (2003). There are exceptions to the procedural default rule when a defendant can

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show (1) cause and prejudice, or (2) actual innocence. United States v. Ratigan, 351 F.3d 957,

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962 (9th Cir. 2003) (citing Bousley v. United States, 523 U.S. 613, 622 (1998)). This has been

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the test since Wainwright v. Sykes, 433 U.S. 72, 90–91 (1977).

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“Cause” means “some objective factor external to the defense” that impeded the

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defendant’s efforts to comply with the procedural requirement. McCleskey v. Zant, 499 U.S. 467,

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493 (1991). Among the reasons that can constitute “cause” are government coercion, see United

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States v. Wright, 43 F.3d 491, 497–99 (10th Cir. 1994), ineffective assistance of counsel, see

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McCleskey v. Zant, 499 U.S. 467, 494 (1991), and a “reasonable unavailability of the factual or

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Page 2 of 6

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legal basis for the claim.” See id.

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Ineffective assistance of counsel is “cause” excusing procedural default only where the

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failure rises to the level of a constitutional violation under Strickland. United States v. Skurdal,

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341 F.3d 921, 925–27 (9th Cir. 2003) (citing Strickland v. Washington, 466 U.S. 668 (1984)).

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Ineffective assistance of counsel claims meeting the Strickland test are not procedurally

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defaulted, and such claims can be brought for the first time under a § 2255 motion even if they

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could also have been brought on direct appeal. Massaro, 538 U.S. at 504. Ineffective assistance

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of counsel claims under § 2255 are essentially a special variety of “cause and prejudice” claim.

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The prejudice required is the same, but the cause is based specifically on constitutionally

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deficient counsel rather than some other miscellaneous “objective factor external to the defense.”

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McCleskey, 499 U.S. at 493.

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The Sixth Amendment right to effective assistance of counsel is violated when: (1)

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counsel’s performance was so deficient so as not to constitute the “counsel” guaranteed by the

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Sixth Amendment; and (2) the deficiency prejudiced the defense by “depriv[ing] the defendant of

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a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. There is a “strong

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presumption” of reasonable professional conduct. Id. at 698. When this presumption is

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overcome and an attorney’s “unprofessional errors” are such that there is a “reasonable

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probability” the result would have been different had the errors not occurred, the defendant has

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been deprived of his Sixth Amendment rights. Kimmelman v. Morrison, 477 U.S. 365, 375

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(1986). “Reasonable probability” is a lower standard than “more likely than not.” Nix v.

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Whiteside, 475 U.S. 157, 175 (1986). The analysis does not focus purely on outcome. Lockhart

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v. Fretwell, 506 U.S. 364, 369 (1993). The trial must also have been fundamentally unfair or

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unreliable. Williams v. Taylor, 529 U.S. 362, 391–92 (2000). Counsel’s tactical decisions with

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which a defendant disagrees do not rise to the level of ineffective assistance unless the decisions

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are so poor as to meet the general test for constitutionally defective assistance. See Dist.

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Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 85–86 (2009).

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“Prejudice” means that “the constitutional errors raised in the petition actually and

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substantially disadvantaged [a defendant’s] defense so that he was denied fundamental fairness.”

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Murray v. Carrier, 477 U.S. 478, 494 (1986). A showing of prejudice requires demonstration of

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a “reasonable probability that . . . the result of the proceedings would have been different. A

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reasonable probability is a probability sufficient to undermine confidence in the outcome.”

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Vansickel v. White, 166 F.3d 953, 958–59 (9th Cir. 1999) (quoting Strickland, 466 U.S. at 694)).

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Also, issues “clearly contemplated by, and subject to, [a] plea agreement waiver” cannot

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be brought in a § 2255 motion. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993); see

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United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995) (holding that waiver of the right to

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appeal does not constitute “cause” excusing procedural default on an issue). This is a

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commonsense rule. If waiver of the right to appeal itself constituted cause excusing a failure to

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appeal, a defendant who had waived his right to appeal would have the same ability to obtain

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review as a defendant who had not waived that right.

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III.

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ANALYSIS
Because Defendant failed to raise any claims on direct appeal, any claims in the present

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motion (except those for ineffective assistance) are procedurally defaulted, and Defendant has

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waived any such collateral challenges to his conviction and sentence, anyway. (See Plea Mem.

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¶ 13, ECF No. 26). Therefore, the Court will address only the first two grounds for review,

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which are based on ineffective assistance of trial counsel.

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First, Defendant argues that his trial counsel was ineffective for failing to properly advise

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him of the amount of time he could receive by accepting the plea agreement. The recording of

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Defendant’s change-of-plea hearing on May 21, 2012 reveals this claim to be without merit.

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Defendant swore at that hearing, inter alia, that he understood his trial rights and waived them,

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that he was “completely” satisfied with his counsel, that he had discussed the terms of the plea

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agreement with his counsel and that she had answered all of his questions, that he understood the

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terms of the plea agreement and the possible range of his sentence, that no one had made him any

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promises outside of the plea agreement, that he understood had an obligation to reveal any such

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promises, and that he did not make the plea under any duress. Moreover, Defendant appears to

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be under the mistaken impression that he received a life sentence, not the maximum of 240

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months he bargained for. But the Amended Judgment makes clear that Defendant’s sentence is

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240 months imprisonment.

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Second, Defendant argues that trial counsel was ineffective for failing to make further

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investigation into facts concerning the pre-sentencing report. He argues that counsel should have

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obtained an expert to testify as to his state of mind during the offense based on his drug use. But

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Defendant allocuted to having committed the offense and thereby waived any affirmative defense

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of incapacity. His state of mind at the time of the offense would not tend to mitigate the offense.

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Next, Defendant complains of trial counsel’s alleged failure to conduct any pre-trial discovery.

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But Defendant has allocuted to the offense. No failure to conduct pre-trial discovery can

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therefore have resulted in any prejudice as to conviction.

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Third, Defendant argues that the Court improperly enhanced his sentence with facts not

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found by a jury. As noted, supra, this claim is both waived and procedurally defaulted. It is

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without merit in any case. As an initial matter, Defendant nowhere identifies the alleged judge-

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found facts used to improperly enhance his sentence. His motion recounts the case law for ten

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pages, but nowhere identifies the alleged error in the present case. In any case, Alleyne and

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Apprendi only prevent a court from increasing statutory minimums and maximums based on

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judge-found facts. A court may enhance a sentence with judge-found facts if the resulting

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sentence is still within the statutory range implicated by an allocution. United States v. Booker,

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543 U.S. 220, 233 (2005) (“[W]hen a trial judge exercises his discretion to select a specific

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sentence within a defined range, the defendant has no right to a jury determination of the facts

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that the judge deems relevant.”). The 240 month sentence is imposed is not greater than the

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statutory maximum.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside
or Correct Sentence (ECF No. 41 in Case No. 3:11-cr-88) is DENIED.
IT IS FURTHER ORDERED that the Motion under 28 U.S.C. § 2255 to Vacate, Set

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Aside or Correct Sentence (ECF No. 1 in Case No. 3:14-cv-470) is STRICKEN, and the Clerk

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shall close that case.

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IT IS FURTHER ORDERED that the Clerk shall enter this Order into the dockets of both

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of the above-captioned cases.

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IT IS SO ORDERED.

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Dated: This 15th of September, 2014.
Dated this 15th day day of October, 2014.
___________________________________
ROBERT C. JONES
United States District Judge

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