VILLAMAN-PUERTA v. UNITED STATES OF AMERICA

Filing 11

OPINION. Signed by Judge Claire C. Cecchi on 2/2/2017. (JB, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARIO VILLAMAN-PUERTA,
Civil Action No. 11-7109 (CCC)
Petitioner,
v.

:

OPINION

UNITED STATES Of AMERICA,

Respondent.

CECCHI District Judge:

Pro se Petitioner Mario Villaman-Puerta (“Petitioner”), confined at Moshannon Valley
Correctional Center in Philipsburg, Pennsylvania, files the instant Motion to Vacate, Set Aside or
Correct Sentence pursuant to 2$ U.S.C.

§ 2255 (“Motion”), challenging the sentence imposed by

this Court on March 12, 2010 for illegal entry by a deported alien. (US. v. Villaman-Puerta, No.
09-cr-682 (D.N.J. filed Jan. 30, 2009) (“Crim. Dkt.”).) At this time, the Court must screen the
Petition in accordance with Rule 4 of the Rules Governing Section 2255 Proceedings, to determine
if the Motion should be denied because Petitioner is not entitled to relief. For reasons stated below,
the Court denies the Motion.
I.

FACTUAL BACKGROUND

Petitioner is a native and citizen of Mexico. (Transcript of Plea Hearing, Crim Dkt. No. 29
(“Transcript”), 9:6). After having been deported from the United States on July 9, 2002, Petitioner
illegally reentered the country, and his reentry was discovered by Respondent when Petitioner was
arrested on October 30, 200$ by agents of the Drug Enforcement Administration (“DEA”). (Id.,
23:1-17; Crim. Dkt. No. 2, Attachment A). Petitioner ultimately pled guilty to one count of illegal

entry. (Crim. Dkt. No. 15). The plea agreement stipulated that Petitioner’s recommended offense
level would be 13, which resulted in a recommended sentence of 18 to 24 months. (Id. at 7).
Importantly, the plea agreement correctly informed Petitioner that “[t]he sentence to be
imposed upon [Petitioner] is within the sole discretion of the sentencing judge.
cannot and does not make any representation or promise as to what
ultimately will receive.” (Id. at 2).

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This Office

sentence [Petitioner]

The agreement further stated that, “[t]his agreement to

stipulate, however, cannot and does not bind the sentencing judge, who may make independent
factual findings and may reject any or all of the stipulations entered into by the parties.” (Id. at 3).
At sentencing, the Honorable Joseph A. Greenaway, Jr., found, by a preponderance of the
evidence, the following facts regarding the circumstances of Petitioner’s October 30, 2008 arrest’:
After his arrest by DEA agents, Petitioner consented to a search of a house located at 7306 Cottage
Avenue, North Bergen, New Jersey, which was documented as Petitioner’s residence. The search
revealed that the house was a stash house for illegal drug distribution, and agents recovered $2.7
million in cash and six kilograms of heroin. Based on these findings, the sentencing court, given
Petitioner’s criminal history, his likelihood of reentering the country if deported again, his prior
involvement in drug-related activities, and the inference that he was involved in drug-related
activities at the time of his arrest, applied an upward variance and sentenced Petitioner to 75
months imprisonment. (Crim. Dkt. No. 30, 62:1-63:24). Petitioner appealed the sentence to the
Third Circuit arguing that the Government indirectly requested an upward variance, thereby
breaching the plea agreement, and that the 75-month sentence was substantively unreasonable.

All facts found by the sentencing court are contained in the transcript of the sentencing
hearing. (Crim. Dkt. No. 30, 56:8-58:19).
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(United States v. Villaman-Fuerta, 10-206 1, Opinion (3d Cir. Feb. 16, 201 1)). The judgment of
the sentencing court was affirmed by the Third Circuit. (Crim. Dkt. No. 33).
Petitioner then filed the instant Motion. Petitioner makes a single claim in the Petition that
he received ineffective assistance of counsel during the plea process, because his counsel had
allegedly made a promise that he would be sentenced to 18-24 months in jail, and had he known
an upward variance was possible, he would not have entered into the plea agreement.
II.

STANDARD OF REVIEW

A prisoner in federal custody under sentence of a federal court “may move the court which
imposed the sentence to vacate, set aside or correct the sentence” upon three grounds: (1) “that the
sentence was imposed in violation of the Constitution or laws of the United States”; (2) “that the
court was without jurisdiction to impose such sentence”; or (3) “that the sentence was in excess of
the maximum authorized by law.” 28 U.S.C.

§ 2255(a).

A criminal defendant bears the burden of establishing his entitlement to
US. v. Davies, 394 F.3d 182, 189 (3d Cir. 2005). Moreover, as a

§ 2255 relief. See

§ 2255 motion to vacate is a

collateral attack on a sentence, a criminal defendant “must clear a significantly higher hurdle than
would exist on direct appeal.” US. v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014) (citing US. v.
Frady, 456 U.S. 152, 166 (1982)). Tn considering a motion to vacate a defendant’s sentence, “the
court must accept the truth of the movant’ s factual allegations unless they are clearly frivolous on
the basis of the existing record.”

US. v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (internal

quotation marks and citation omitted). “It is the policy of the courts to give a liberal construction
to pro se habeas petitions.” Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010). The Court may
dismiss the motion without holding an evidentiary hearing if the motion and the files and records
of the case conclusively show that the prisoner is entitled to no relief. See 28 U.S.C.

3

§ 225 5(b);

Liu v. U.S., No. 11—4646,2013 WL 4538293, at *9 (D.NJ. Aug. 26, 2013) (citing Booth, 432 F.3d
at 545_46).2

III.

DISCUSSION

The Sixth Amendment guarantees the accused the “right

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to have the Assistance of

Counsel for his defense.” U.S. Const. amend. VI. The right to counsel is the right to the effective
assistance of counsel, and counsel can deprive a defendant ofthe right by failing to render adequate
legal assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984). 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. Id. at 687. First, the defendant must “show that counsel’s representation
fell below an objective standard of reasonableness.” Id. at 687—88. To meet this prong, a
“convicted defendant making a claim of ineffective assistance must identify the acts or omissions
of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at
690. The court must then determine whether, in light of all the circumstances at the time, the
identified errors fell “below an objective standard of reasonableness[.]” Hinton v. Alabama, 134
S.Ct. 1081, 1083 (2014) (per curiam). To satisfy the prejudice prong, “a defendant need not show
that counsel’s deficient conduct more likely than not altered the outcome in the case.” Strickland,
466 U.S. at 693. To establish prejudice, the defendant must show that “there is a reasonable

2

Respondent filed a Motion to Dismiss in response to Petitioner’s Motion. As the Court is
denying Petitioner’s Motion on Rule 4 screening, the Court does not consider Respondent’s
Motion to Dismiss and it is denied as moot. The Court also finds that no evidentiary hearing is
required as the Court is denying the Motion on the record.
The reasonable probability standard is less demanding than the preponderance of the
evidence standard. See Nix v. Whiteside, 475 U.S. 157, 175 (1986); Baker v. Barbo, 177 F.3d
149, 154 (3d Cir. 1999).
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probability that the result of the trial would have been different absent the deficient act or
omission.” Hinton, 134 S.Ct. at 1083.
The same two-part standard is applicable to ineffective assistance claims arising out of the
plea process. Hill v. Lockhart, 474 U.S. 52, 57 (1985). In the plea context, “counsel is required
to give a defendant enough information to make a reasonably informed decision whether to accept
a plea offer.” United States v. Bui, 795 F.3d 363, 367 (3d Cir. 2015). 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.” US. v. Jesus-Nunez, 576 F. App’x 103, 106 (3d
Cir. 2014) (quoting Hilt, 474 U.S. at 59).
“Where the voluntariness of the plea is attacked with an assertion that one’s counsel or the
prosecutor, or both, made an out-of-court arrangement or ‘proposition’ as to the outcome of a
sentence which differs from that pronounced by the court” the need for a subsequent

§ 2255

evidentiary hearing may be obviated where:
the plea reception record discloses that (1) the defendant states that no promise,
representation, agreement or understanding was made or that none other than that
disclosed in open court was made to him by any person prior to the entry of the
plea, and (2) the defendant affirmatively states that no out-of-court promise,
representation, agreement or understanding required the defendant to respond
untruthfully or contrary to the terms thereof in the in-court plea reception
proceedings, and (3) that the defendant understands that he may not at a later time
contend that any promise, representation, agreement or understanding was made by
any person other than that set forth in open court.
United States v. Vatenciano, 495 F.2d 585, 587—88 (3d Cir. 1974).
Petitioner argues that his guilty plea was not knowingly and voluntarily entered, because
he entered into the plea on the counsel’s statement that “the Court normally accepts whatever the
government recommends 99% of the time.” (ECF No. 1-1 at 1). Petitioner further asserts that
“Counsel advised Petitioner not to worry because he would definitely be sentenced to whatever
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the government had agreed upon,” (ECF No. 1 at 6), and Petitioner was “assured” by “his counsel
and prosecutor” that he would receive 18-24 months, (ECF No. 1 at 5). Petitioner also claims that
he “specifically asked his counsel whether the government and the Court had agreed to this deal,
[and] counsel responded yes, and also told Petitioner that the Court always go[es] with the
government’s agreed plea agreement 99% of the time.” (ECF No. 1 at 3).
To the extent Petitioner is arguing that the plea was not voluntary in light of an out-of-court
promise,4 given Judge Greenaway’s thorough colloquy, an evidentiary hearing is not warranted
under Valenciano. 495 F.2d at 587-28. At Petitioner’s September 14, 2009 plea hearing, Judge
Greenaway specifically asked numerous questions and established that Petitioner understood that
the plea agreement was not binding on the Court. Among other things Petitioner expressly
acknowledged that neither his attorney nor any other person made a promise to him as to the
sentence that would be imposed by the Court.

(Transcript 10:4-6; 13:6-10).

Additionally,

Petitioner acknowledged that his counsel had explained a “worst case sentencing scenario with
[him],” (Transcript 10:9-11:17 (including statutory maximum of 20 years)).

Furthermore,

Petitioner expressly denied that there had “been any out-of-court promise, representation,
agreement or understanding requiring [him] to respond untruthfully to any of these questions,”
(Transcript 13:11-14). Finally, Petitioner acknowledged his understanding that he “may not at a
later time contend that any promise, representation, agreement, or understanding was made by any
person unless it” was set forth at the hearing. (Transcript 13:15-19). Accordingly, the Court finds
on the record, denial of Petitioner’s motion is appropriate. See Martinez v. United States, 411 F.

Petitioner repeatedly claims that his counsel stated the Court accepts plea agreements “99% of
the time,” suggesting this was, in fact, to be understood as a prediction as to the likelihood the
Court would accept the agreement, rather than a “promise” a sentence within the agreed to range
would be imposed. See United States v. Hampton, No. CIV. 13-1173, 2014 WL 317875, at *6 &
n.5 (E.D. Pa. Jan. 2$, 2014).
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Supp. 1352, 1359 (D.N.J. 1976) (denying motion under

§ 2255 without evidentiary hearing as the

plea colloquy included the information set forth in Valenciano), aff’d sub nom. Martinez, Appeal
of 547 F.2d 1162 (3d Cir. 1977).
To the extent Petitioner more generally asserts that had he known the sentencing court
would impose a sentence above the agreed-to range, he would not have entered into the agreement,
this argument is unavailing. The law requires the Court to analyze counsel’s performance in
assisting Petitioner to reach a knowing and voluntary plea agreement at the time of the plea; the
law does not engage in hindsight analysis into what Petitioner would have done after knowing the
result of sentencing. Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time”); Premo v. Moore, 562 U.S. 115, 132 (2011) (“Hindsight and second
guesses are also inappropriate, and often more so, where a plea has been entered without a full trial
or, as in this case, even before the prosecution decided on the charges”); US. v. Calcagni, 56S F.
App’x 158, 162 (3d Cir. 2014) (citing Strickland, 466 U.S. at 689); Scurry v. US., No. 14-7934,
2015 WL 505901, at *3 (D.N.J. Feb. 6, 2015) (“Petitioner’s entire attack on the pleading process
is limited to his self-serving hindsight observation that he followed his counsel’s ‘ill advice.’ That
observation, however, neither establishes nor even suggests that Petitioner’s plea was not knowing,
intelligent and voluntary”).
The Court finds counsel’s advice reasonable. It is true that under ordinary circumstances,
courts may accept plea recommendations at face value. Nevertheless, that Petitioner took the plea
recommendation as a “promise” that a specific sentence would be imposed is not supported by the
record as set forth above. “{A]n erroneous sentencing prediction by counsel is not ineffective

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assistance of counsel where.

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an adequate plea hearing was conducted.” Bul, 795 F.3d at 367

(quoting US. v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007)).
Indeed, both in the plea agreement itself and during the plea colloquy, Petitioner was
explicitly notified that the sentencing court was not a party to the plea agreement, and therefore
was not bound by its recommendations. Under these facts, this Court cannot find that counsel’s
assistance was objectively unreasonable.
IV.

CONCLUSION

For the reasons set forth above, Petitioner’s Motion is DENIED without prejudice, and
Respondent’s Motion to Dismiss is DENIED as moot.

C.
Claire C. Cecchi, U.S.D.J.

Dated:

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