VASQUEZ v. UNITED STATES OF AMERICA
Filing
15
OPINION. Signed by Judge Noel L. Hillman on 4/28/2016. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RAFAEL VASQUEZ,
Civil No. 14-5297 (NLH)
Petitioner,
OPINION
v.
UNITED STATES OF AMERICA,
Respondent.
APPEARANCES:
RAFAEL VASQUEZ, #41776-050
FCI Schuylkill
P.O. Box 759
Minersville, PA 17954-0759
Petitioner Pro Se
ROBERT STEPHEN STIGALL, Assistant U.S. Attorney
PAUL J. FISHMAN, United States Attorney
P.O. Box 2098
Camden, NJ 08101
Attorneys for United States of America
HILLMAN, District Judge:
Rafael Vasquez filed a motion pursuant to 28 U.S.C. § 2255
to vacate, set aside, or correct a sentence of 135 months in
prison, entered in this Court on June 20, 2012, and reduced on
January 14, 2015, to a 108-month term of imprisonment, in United
States v. Vasquez, Crim. No. 10-0729 (NLH) order (D.N.J. Jan.
1
14, 2015), after he pled guilty pursuant to a plea agreement to
conspiracy to possess with intent to distribute crystal
methamphetamine and dealing in firearms without a federal
firearms license.
Vasquez challenges his guilty plea on the
ground that it was not knowing and voluntary and he claims that
defense counsel was constitutionally ineffective in failing to
meet with him for more than 30 minutes and to use a Spanish
language interpreter during the plea process, and falsely
informing this Court that simultaneous translation at the plea
hearing was not necessary.
The United States filed an Answer arguing that the record
refutes the assertion that Vasquez needed a Spanish interpreter
to understand the plea agreement and the consequences of
pleading guilty, and that Vasquez was not deprived of his Sixth
Amendment right to the effective assistance of plea counsel.
This Court agrees.
For the reasons fully expressed below, the
Court will deny the § 2255 motion and decline to issue a
certificate of appealability.
I.
BACKGROUND
On December 12, 2009, the United States filed a criminal
complaint charging Vasquez with conspiracy to distribute and
possession with intent to distribute 50 grams or more of
2
methamphetamine, engaging in the business of dealing in firearms
without a license, and possession of an automatic weapon.
A
warrant for his arrest issued on December 3, 2009, and officials
arrested Vasquez on December 4, 2009.
By motion signed September 9, 2010, Vasquez filed a pro se
motion for relief of counsel and appointment of new counsel.
In
the motion, Vasquez stated:
Comes now the Defendant/Petitioner, Rafael Vasquez
moving for the immediate dismissal of current counsel
on the basis of mis-interpreting of facts which have
caused for the petitioner to lack confidence (trust)
in the present representation of federal Public
Defender Mr. Christopher [O’]Malley who has also been
with-holding services from the Defendant as well.
1. As mandated by the right of Due Process, the
Petitioner is entitled to be fully informed of the
magnitude of the evidence which may or may not exist
so as to consider his legal position. However[,] to
date there has been nothing meaningful forthcoming
from the aforementioned counsel[. T]herefore the
Petitioner has a total lack of confidence in going to
trial with appointed counselor[’]s representation.
2. The Petitioner humbly requests that new counsel be
duly appointed and that this Court recognize that
there is now a definite conflict of interest with the
federal Public Defender[’]s Office.
United States v. Vasquez, Crim. No. 10-0729 (NLH) motion (D.N.J.
Sept. 20, 2010) (ECF No. 15).
Magistrate Judge Karen M. Williams heard argument on the
motion on October 8, 2010.
Mr. O’Malley informed Judge Williams
of Vasquez’s intention to withdraw the motion and Judge Williams
3
asked Mr. Vasquez if he agreed to withdraw the motion and to
continue to be represented by Mr. O’Malley; Vasquez responded
“Yes” and Judge Williams determined that the motion had been
withdrawn.
United States v. Vasquez, Crim. No. 10-0729 (NLH)
transcript (D.N.J. (Oct. 8, 2010) (ECF No. 117.)
A grand jury returned an indictment on October 27, 2010,
charging Vasquez and three others with conspiracy to distribute
and possess with intent to distribute 50 grams or more of
crystal methamphetamine (count one); charging Vasquez alone with
distribution and possession with intent to distribute cocaine
and methamphetamine (counts two, three, four), engaging in the
business of dealing in firearms without a license (count five),
unlawful possession of an automatic machine gun (count six); and
charging a co-defendant with possession with intent to
distribute methamphetamine (count seven).
The arraignment took place on November 15, 2010.
Vasquez
was represented by Christopher O’Malley, Federal Public
Defender.
After the Spanish interpreter Raymond McConnie was
sworn in, this Court asked Mr. O’Malley to speak with his client
and to inform the Court whether or not Vasquez was receiving the
audio translation and could hear the proceedings.
Mr. O’Malley
responded that Vasquez “has been offered audio [but] he’s
4
confident to proceed in English.”
(ECF No. 13-5 at 4.)
This
Court asked counsel directly if Vasquez was “able to hear and
understand [the Court] in English?”
Id.
When Mr. O’Malley
responded “Yes,” the Court asked if he had confirmed that with
Mr. Vasquez.
Mr. O’Malley responded “Yes, and the interpreter
also offered the services.”
Id.
The proceeding continued and,
on behalf of Mr. Vasquez, Mr. O’Malley informed the Court that
Vasquez waived the formal reading of the indictment and was
pleading not guilty.
On April 11, 2011, Vasquez waived prosecution by
indictment; the United States filed a superseding information
charging Vasquez with conspiracy to distribute and possess with
intent to distribute five grams or more of crystal
methamphetamine (count one) and engaging in the business of
dealing in firearms without a license (count two); and Vasquez
filed an application for permission to enter a plea of guilty to
the two counts in the superseding information pursuant to a plea
agreement which was also filed.
The plea agreement provided that, if Vasquez entered a
guilty plea to the two counts in the superseding information and
fully complied with the agreement, then the United States
Attorney for the District of New Jersey would not initiate
5
further criminal charges for conspiring to distribute
methamphetamine and cocaine, distributing those drugs between
February 2009 and December 3, 2009, and for illegal possession
and transfer of firearms between February 2009 and December 3,
2009.
The plea agreement further provided that, in the event
that the judgment of conviction entered as a result of the plea
agreement did not remain in force and effect, Vasquez agreed
that any dismissed charges and other charges may be commenced
against him, provided the charges were not time barred on the
date he signed the plea agreement.
The plea agreement also stated that the drug charge in
count one of the superseding information carried a statutory
maximum sentence of 40 years and a mandatory minimum sentence of
five years, the gun dealing charge carried a maximum five-year
sentence, and that the sentence to be imposed on each count was
within the discretion of the sentencing judge, subject to the
Sentencing Reform Act and consideration of the United States
Sentencing Guidelines.
Finally, Vasquez stipulated that, if the sentence fell
within or below the Sentencing Guidelines range resulting from a
total offense level of 29, he agreed to voluntarily waive the
right to file an appeal or a motion under § 2255 challenging the
6
sentence.
The Government agreed not to appeal or challenge the
sentence if it fell within or above the guidelines range
resulting from a total offense level of 29.
However, both
parties reserved any right they may have under 18 U.S.C. § 3742
to appeal the sentencing court’s determination of the criminal
history category.
The transcript of the plea hearing on April 11, 2011, shows
that at the outset this Court stated:
“Before we get much
further we’ve obtained the services of an interpreter, but I’m
led to believe that that may not be necessary or not completely
necessary.”
stated:
(ECF No. 13-6 at 2.)
In response, Mr. O’Malley
“My opinion is, Your Honor, your insight is correct.
My client and I have communicated extremely well in English with
absolutely no barrier from my understanding and feedback from my
client to require an interpreter.
Nonetheless, we have one here
and available, and if any terms or difficulties that Mr. Vasquez
may find trying in today’s matter, that I’m happy to have the
interpreter sworn in.”
(ECF No. 13-6 at 3.)
Lois Weaver, certified interpreter, was sworn and then
Vasquez was sworn.
This Court informed Mr. Vasquez that an
interpreter was present and available for him, if needed.
7
(ECF
No. 13-6 at 10.)
The Court proceeded:
“If at any time you
don’t understand something I’m saying, or if you want any of the
documents interpreted, or anything anyone else says is not clear
to you and you want to break to discuss it with Mr. O’Malley and
the interpreter, just let me know.” (ECF No. 13-6 at 10.)
After
Vasquez testified that he had completed the ninth grade in
Mexico and that his education was provided in Spanish, this
Court asked him how he learned the English language.
Vasquez
responded that he learned English by helping his kids with
homework and watching television and that he also learned
English through interacting with English speakers during the 21
years he lived in the United States.
When asked if he could read English, Vasquez responded,
“Most of it, yes.”
(ECF No. 13-6 at 11.)
The Court asked
Vasquez if he had been able to read, review, and agree to the
terms of the documents in the English language and Vasquez
responded “Yes.”
Id. at 11-12.
The Court responded:
“Again,
if at any point those documents are unclear to you just ask for
a break and we’ll go back over them with an interpreter so that
it’s clear you understood them,” and Vasquez stated, “Right.”
Id. at 12.
Then the Court asked Vasquez to explain in his own
words what he thought would happen.
8
Vasquez testified:
“I came
to plead guilty for the crime I commit.”
Id.
When the Court
asked Vasquez if he had had sufficient time to discuss the
matter with Mr. O’Malley and if he was satisfied with O’Malley’s
representation, Vasquez responded, “Yes.”
Id. at 13.
This Court observed that “Mr. Vasquez understands the
nature of the proceedings here, today, and [is] competent to
proceed.”
Id. at 13.
The Court then asked Mr. Vasquez whether
he desired to waive the indictment and whether he discussed the
waiver form with Mr. O’Malley, and Vasquez responded “Yes.”
Vasquez agreed that he had no questions about the waiver and
that he wished to waive indictment.
The Court found that “Mr.
Vasquez understands his right to Indictment and knowingly,
voluntarily, and intelligently waives such right.”
6 at 15.)
(ECF No. 13-
In response to the Court’s question as to how he
wished to plead to the two charges in the information, Vasquez
answered, “Guilty” as to both counts.
Id. at 16.
The Assistant United States Attorney summarized the plea
agreement and stipulations.
Vasquez responded affirmatively in
response to the Court’s question as to whether he signed the
plea agreement, discussed the plea agreement with Mr. O’Malley,
and understood the plea agreement.
Id. at 30.
The Court
recited the maximum statutory penalties for each count in the
9
information, explained that the Court would take the Sentencing
Guidelines into consideration, including his criminal history,
and explained that neither Mr. O’Malley nor the Court could know
precisely what sentencing range applied until a Presentence
Report was completed.
Vasquez stated that he understood.
The
Court then outlined the elements of each count and Vasquez
stated that he understood.
Id. 43-44.
The Court reviewed the
application for permission to enter a plea of guilty in English
and Mr. Vasquez stated that he understood the plea agreement and
that he had signed the document after reading it and filling it
out with Mr. O’Malley.
Id. at 50.
This Court concluded:
It’s my finding that Mr. Vasquez if fully competent,
capable of entering an informed plea, aware of the
nature of the charges, the consequences of the plea,
that the plea is supported by an independent basis in
fact containing each of the essential elements of the
offense. The plea is therefore accepted, and the
defendant adjudged guilty and I’ll set sentencing for
July 28th, 2011, at 11 a.m.
(ECF No. 13-6 at 51.)
Sentencing occurred before this Court on June 12, 2012.
The Court interpreter, Irene Gosnear, informed the Court that
Mr. Vasquez told her that he did not need her to interpret but
he wanted her to stay.
After the Court informed Mr. Vasquez
that there were disputed sentencing issues and that it was
important that he understand the proceedings and that he have a
10
full and fair opportunity to discuss the issues with counsel as
needed, the following colloquy occurred:
The Court: I take it from your discussions with Mr.
O’Malley and with the interpreter and with me that you
do not object to these proceedings going forward
entirely in English. Is that true?
The Defendant:
Yes.
The Court: All right. There is an interpreter here
who is qualified in Spanish language who is available
to speak to you to provide simultaneous translation,
if you want it, or to be available in what we’ll call
a standby capacity, that is, that if at any point you
feel that you do not understand the proceedings in
English, you can simply signal to Mr. O’Malley or to
the Court, for that matter, that you’d like to go back
over something in Spanish, and then we will then use
the services of the interpreter at that time. I take
it you would prefer the second option or the latter
proposal, that is, standby interpreter, as needed,
based on any request that you might make for those
services. Is that your preference?
The Defendant:
Yes.
The Court: Do you understand that we could provide
simultaneous translation if you wanted it?
The Defendant:
The Court:
Yes.
And you’re willing to forego that?
The Defendant:
Yeah.
The Court: All right. Just signal through Mr.
O’Malley or directly to the Court that you wish to
have matters translated for you, either any oral
statements or written matters at any time, and we will
go back over it. All right?
The Defendant:
(Nods head.)
11
(ECF No. 13-7 at 4-5.)
The argument continued for 47 pages of transcript, and Mr.
Vasquez did not ask the interpreter to translate.
After the
Court determined that a sentencing range of 135 to 168 months
applied, the Court asked Mr. Vasquez if he wished to address the
Court, and Vasquez responded:
Yes. I want to apologize to the United States of
America, to my family, my wife, especially my
children. And I’m sorry I make this bad choice. And
we all already suffer a lot. I lost my mother. They
lost their grandfather. And I ask Your Honor to give
me a second chance to be there, to provide for my
family. And I also want to apologize for the people
that I hurt directly and indirectly. And the time
that I spend here, it make me think, make me realize
that the bad choices, they – they harm your future,
not only yours, the whole family. And I’m sorry.
That’s all, Your Honor.
(ECF No. 13-7 at 52-53.)
This Court sentenced Vasquez to 135 months on count one, a
concurrent 60-month term on count two, and five years of
supervised release.
Vasquez appealed the sentence, arguing that this Court
erred by imposing a two level enhancement for possession of a
dangerous weapon in connection with the drug distribution
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conspiracy under U.S. Sentencing Guideline Manual § 2D1.1(b)(1).1
The Third Circuit affirmed on March 15, 2013.
See United States
v. Vasquez, 515 F. App’x 104, 106 (3d Cir. 2013)(“We do not need
to determine whether the two-level enhancement was properly
applied because, even if the District Court erred in in applying
the enhancement, that error was harmless,” as “the sentencing
judge would have imposed the same sentence under a correct
Guidelines range[.]”) (citation and internal quotation marks
omitted).
2013.
The Supreme Court denied certiorari on October 7,
See Vasquez v. United States, 134 S.Ct. 217 (2013).
On
January 14, 2015, this Court granted a joint motion to reduce
Vasquez’s 135-month sentence to 108 months in prison, pursuant
to 18 U.S.C. § 3582(c)(2).
On August 21, 2014, Vasquez signed and placed in the prison
mail system his motion to vacate under 28 U.S.C. § 2255.
The
motion raises two grounds:
Ground One:
DUE PROCESS OF LAW, 5TH AMENDMENT E[TC].
Supporting Facts: I am a Mexican citizen. I have and
had a clear language b[a]rrier with my court appointed
Attorney Mr. Christopher O’Malley, and I did try to
1
The appeal was permitted by the plea agreement because the 135month sentence was greater than the guideline range applicable for
an offense level of 29.
13
fire him see court docket. I did not understand the
PLEA AGREEMENT nor did I plead Guilty with the
understanding of what I was doing. My Attorney spent
less th[an] :30 Min[u]t[e]s TOTAL on the plea
barg[ai]n, i.e. PLEA AGREEMENT. I was denied a right
to a fair hearing as no INTERPRETER was appointed, nor
was I given a Spanish speaking Attorney nor an
application of USC 28 § 1827 put in to place by the
court or the P.D.’s Office.
FACT: I did not enter in to the PLEA AGREEMENT or the
GUILTY PLEA knowing what I was doing and the appointed
Attorney Knew this and the court should [have]
know[n].
Ground Two: INEFFECTIVE ASSISTANCE OF COUNSEL 5th &
6th AME. VIOL.
Supporting Facts: Same as ground one. Mr. O’Malley
knew that I did not fully understand the PLE[A]
AGREEMENT and that I could not enter in to a Guilty
plea when He knew that I did not understand[.] He
lied to me and the Judge he knew that I did not
understand and he lied to the court and told them that
I did wh[en] in fact I did not.
My guilty plea was not voluntarily given nor was the
plea agreement entered in to vo[l]untar[i]ly as my
Attorney was willfully ineffective and down right
dec[e]ived the court. I tr[i]ed to fire him and this
[is] in the record he as[s]ured me that he would get
an interpreter for me he did not. [H]e as[s]ured me
that this was the best “deal’ i.e. plea agreement that
I could get, THIS WAS NOT THE CASE AT ALL!!! I got
more time.
(ECF No. 1 at 3, 11.)
On October 13, 2015, the Government filed an Answer,
arguing that the motion should be denied. (ECF No. 13.)
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II.
A.
DISCUSSION
Jurisdiction
Section 2255 of Title 28 of the United States Code
provides:
“A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be released
upon the ground that the sentence was imposed in violation of
the Constitution or 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.”
28 U.S.C. § 2255(a).
Because Vasquez was incarcerated when he filed the § 2255 motion
in 2014, he satisfies the “in custody” jurisdictional
requirement of § 2255.
(1989).
See Maleng v. Cook, 490 U.S. 488, 490-91
An evidentiary hearing is not required under § 2255
where “the files and records of the case conclusively show that
the prisoner is entitled to no relief.”
United States v.
Padilla-Castro, 426 F. App’x 60, 63 (3d Cir. 2011) (quoting 28
U.S.C. § 2255(b)); accord United States v. Day, 969 F.2d 39, 4142 (3d Cir. 1992).
B.
Validity of Guilty Plea
Vasquez asserts in Ground One that his guilty plea was not
knowing and voluntary because he did not understand the plea and
15
its consequences since his primary language is Spanish, counsel
did not use an interpreter to explain the plea agreement and its
consequences to him, and the interpreter did not provide
simultaneous translation at the plea hearing.
When a defendant enters a plea of guilty, he waives the
Fifth Amendment privilege against compulsory self-incrimination,
and the Sixth Amendment rights to trial by jury and to confront
one’s accusers.
Boykin v. Alabama, 395 U.S. 238, 243 (1969).
A
court “cannot presume a waiver of these three important federal
rights from a silent record.”
Id.
Due process requires that a
guilty plea is “voluntary” and that the defendant’s waiver of
his constitutional rights is “knowing, intelligent, [and] with
sufficient awareness of the relevant circumstances and likely
consequences.”
United States v. Ruiz, 536 U.S. 622, 628 (2002)
(quoting Brady v. United States, 397 U.S. 742, 748 (1970).
“[B]ecause a guilty plea is an admission of all the
elements of a formal criminal charge, it cannot be truly
voluntary unless the defendant possesses an understanding of the
law in relation to the facts.” Boykin, 395 U.S. at 243 n.5
(citation and internal quotation marks omitted).
To ensure that
a plea is knowing and voluntary, a district court must advise a
defendant of the consequences of the plea and determine that the
16
defendant understands them.
See United States v. Schweitzer,
454 F.3d 197, 202–203 (3d Cir. 2006) (citing Boykin and Rule 11,
Federal Rules of Criminal Procedure).
“An adequate
understanding of the English language is a threshold requirement
for a voluntary plea.” United States v. Perez, 918 F.2d 488, 490
(5th Cir. 1990).2
In assessing the validity of a guilty plea, a court must
keep in mind that
the representations of the defendant, his lawyer, and
the prosecutor at such a hearing . . , constitute a
formidable barrier in any subsequent collateral
proceedings. Solemn declarations in open court carry
a strong presumption of verity. The 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.
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
2
The Court Interpreters Act requires a District Judge to utilize
an interpreter if the defendant “speaks only or primarily a
language other than the English language . . . so as to inhibit
such party's comprehension of the proceedings or communication
with counsel or the presiding judicial officer.” 28 U.S.C. §
1827(d)(1). Once the Court is on notice that a defendant’s
understanding of the proceedings may be inhibited by his limited
proficiency in English, it has a duty to inquire whether he
needs an interpreter. See Ramos-Martinez v. United States, 638
F.3d 315, 325 (1st Cir. 2011).
17
In this case, Mr. Vasquez indicated at the arraignment, the
plea hearing and sentencing that he was able to understand and
communicate in English without the need for the interpreter.
An
interpreter was present and available to simultaneously
translate each proceeding and, although given ample
opportunities, Vasquez did not indicate that he needed the
interpreter to translate the proceeding or the plea agreement.
During the change of plea hearing, this Court verified that Mr.
Vasquez understood the charges, had read the information, and
had consulted with counsel.
The Court asked several questions
to evaluate Mr. Vasquez’s understanding of the plea agreement
and its consequences; Vasquez answered each question in English
and this Court found that he had knowingly and voluntarily
elected to enter a guilty plea.
Mr. Vasquez now asserts that he did not understand the plea
agreement and its consequences because the agreement and the
plea hearing were in English and his attorney did not use an
interpreter to explain the plea agreement to him.
But these
arguments conflict with statements he made at the plea hearing.
This Court’s questions and Mr. Vasquez’s responses in English
show that he understood the plea and its consequences.
Based on
the statements of Mr. Vasquez during the plea hearing, as well
18
as the sentencing hearing, this Court concludes that his guilty
plea was made knowingly and voluntarily in English.
See United
States v. Sanchez-Leon, 764 F.3d 1248, 1260-61 (10th Cir. 2014).
Because the “files and records of the case conclusively show
that [Mr. Vasquez] is entitled to no relief” on his challenge to
his guilty plea, the Court will deny relief on Ground One
without an evidentiary hearing.
C.
28 U.S.C. § 2255(b).
Ineffective Assistance of Counsel
In Ground Two Vasquez asserts that his guilty plea is
invalid because his attorney took only 30 minutes to explain the
plea agreement, failed to use an interpreter when he explained
the plea agreement to Vasquez, and lied to the Court that
simultaneous translation during the plea hearing was not
necessary.
The Sixth Amendment guarantees the accused the “right . . .
to have the Assistance of Counsel for his defense.”
amend. VI.
U.S. Const.
A claim that counsel’s assistance was so defective
as to require reversal of a conviction has two components, both
of which must be satisfied.
U.S. 668, 687 (1984).
See Strickland v. Washington, 466
A defendant must “show that counsel’s
representation fell below an objective standard of
reasonableness” id. at 687-88, and that “there is a reasonable
19
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694
(citations omitted).
In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court
held that Strickland v. Washington applied to challenges based
on ineffective assistance of counsel where the defendant pled
guilty. Id. at 58.
“Where, as here, a defendant is represented
by counsel during the plea process . . , the voluntariness of
the plea depends on whether counsel’s advice ‘was within the
range of competence demanded of attorneys in criminal cases.’”
Id. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771
(1970)).
To satisfy the “prejudice” requirement, “the defendant
must show 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, 474 U.S. at 59.
The
Supreme Court held that Hill’s allegations did not satisfy the
prejudice requirement because Hill “did not allege in his habeas
petition that, had counsel correctly informed him about his
parole eligibility date, he would have pleaded not guilty and
insisted on going to trial.” Hill, 474 U.S. at 60.
In this case, Vasquez does not assert that he would have
declined the plea agreement and would have insisted on going to
20
trial, but for counsel’s deficient performance.
Because Vasquez
does not assert that he would have insisted on going to trial
but for counsel’s allegedly deficient performance, he has failed
to assert prejudice under the standard articulated by Hill and
Strickland. See Premo v. Moore, 131 S.Ct. 733, 744 (2011)
(“Thus, the question in the present case is not whether Moore
was sure beyond a reasonable doubt that he would still be
convicted if the extra confession were suppressed.
It is
whether Moore established the reasonable probability that he
would not have entered his plea but for his counsel’s
deficiency.”)
This Court denies the § 2255 motion without an
evidentiary hearing, as the motion and records in the underlying
criminal case show conclusively that Vasquez is not entitled to
relief on his ineffective assistance of counsel claims.3 See
Cedeno v. United States, 455 F. App’x 241, 245-246 (3d Cir.
2011) (“Cedeno has not established a reasonable probability
that, had he known that the conspiracy charge was susceptible to
a double jeopardy challenge, he would not have pleaded guilty to
3
Because the record shows conclusively that Vasquez is not
entitled to relief, it was not necessary for this Court to
consider the affidavit of defense counsel filed with the
Government’s Answer.
21
one of the three remaining charges and would have insisted on
going to trial.”); United States v. Peppers, 273 F. App’x 155,
159 (3d Cir. 2008) (counsel was not constitutionally ineffective
in the plea process where Peppers “made no contention that he
would not have entered his plea and would have insisted on going
to trial if his counsel had advised him that the [Armed Career
Criminals Act] arguably may not have applied”); Powell v.
Meyers, 214 F. App’x 197, 200 (3d Cir. 2007) (denying § 2254
petitioner’s claim that plea counsel was constitutionally
ineffective where petitioner did not assert that he would have
insisted on going to trial had he known that it was legally
impossible for his back-time sentence to be served
concurrently).
D.
Certificate of Appealability
Because Vasquez has not made a substantial showing of the
denial of a constitutional right, no certificate of
appealability will issue pursuant to 28 U.S.C. § 2253(c)(1)(B).
See Fed. R. App. P. 22(b)(1); 3d Cir. L.A.R. 22.2.
22
III.
CONCLUSION
This Court denies the § 2255 motion and denies a
certificate of appealability.
An appropriate order accompanies
this Opinion.
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
DATED:
April 28, 2016
At Camden, New Jersey
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