OROZCO v. UNITED STATES OF AMERICA

Filing 10

OPINION. Signed by Judge Dennis M. Cavanaugh on 8/8/13. (jd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOSE OROZCO,
Petitioner,
v.

Hon. Dennis M. Cavanaugh
:
:

OPINION
Civ. Act. No. 2:12-CV-07405(DMC)

UNITED STATES OF AMERICA,
Respondent.

DENNIS M. CAVANAUGH, U.S.D.J.:
This matter comes before the Court upon motion under 28 U.S.C.

§

2255 to vacate, set

aside, or correct sentence by Petitioner Jose Orozco (“Petitioner”). Pursuant to FED. R. Civ, P.
78, no oral argument was heard. After carefully considering the submissions of the parties and
based upon the following, it is the finding of this Court that the Petitioner’s motion is denied.
L

1
BACKGROUND
On August 24, 2007, Petitioner was charged with conspiring to distribute more than five

kilograms of cocaine, in violation of 21 U.S.C.

§

846. Kathleen Theurer was appointed to

represent Petitioner on the same day. On September 11, 2007, a plea agreement was sent to Ms.
Theurer that provided the government would not pursue additional charges if Petitioner pled
guilty to conspiring to distribute more than five kilograms of cocaine. Petitioner rejected the plea
agreement on November 7, 2007. He was indicted by grand jury the same day.
A jury trial was commenced on March 3, 2008 and on March 6, 2008 the jury returned
guilty verdicts against Petitioner. On November 10, 2008, this Court sentenced Petitioner to 1 2 1

This section is taken from parties’ pleadings.

months’ imprisonment. Petitioner appealed his conviction and on January 4, 2012 the Third
Circuit affirmed. On November 18, 2012 Petitioner filed this instant
H.

§ 2255

petition.

STANDARD OF REVIEW
This Court has jurisdiction pursuant to 1 8 U.S.C.

§

323 1. providing the district courts

with original jurisdiction of all offenses of the laws of the United States. Jurisdiction is also
secured pursuant to 28 U.S.C.

§

2255 which allows this Court. having imposed a sentence upon

Petitioner, to vacate, set aside or correct a sentence upon a showing that ‘the sentence imposed
was in violation of the Constitution or laws of the United States, this Court lacked 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.”
HI.

DISCUSSION
Petitioner alleges ineffective representation on two fronts. Petitioner first alleges that his

attorney failed to inform him of the fact that he would likely be deported after a guilty verdict in
a jury trial. Petitioner also alleges that his attorney strongly encouraged him to turn down the
government’s proposed plea deal and proceed to jury trial, Petitioner’s attorney Kathleen M.
Theurer. Esquire. represented in her affidavit that she advised Petitioner to accept the plea deal.
Further, in her affidavit Ms. Theurer represents that she did inform Petitioner of the consequence
of a guilty plea or a guilty verdict

—

that of likely deportation.

A, Petitioner’s Claim of ineffective Representation with regard to his Attorney Failing
to Inform film of the Deportation Consequences Fails Because It Does Not Meet
The Strickland Test
Petitioner claims that his attorney was ineffective for failing to inform Petitioner of the
deportation consequences of his conviction. The second prong of the Strickland test requires that
the defendant be prejudiced by the alleged deficienc In this instance Petitionci docs not mccl

this burden. Strickland requires that the Petitioner first demonstrate deficient performance and
second that the deficient performance prejudiced the Petitioner. Petitioner was not prejudiced by
this alleged deficiency because even if Petitioner had entered agreed to the plea deal and plead
guilty he would have faced the same deportation consequences. The outcome with regard to the
deportation consequences of a guilty conviction through jury trial or a guilty plea is the same.
Regardless of whether Petitioner’s counsel was deficient or not, Petitioner suffered no prejudice
as a result of the alleged deficiency.
As held in Strickland v. \Vashinuton. 466 U.S. 66g. OS7 (1 o)$4

.

m order for the Petitioner

to prevail on a claim of ineffective counsel, Petitioner must show: (1) “that counsel!s
performance was detlcient. which “requires showing that counsel made errors so serious that
counsel was not functioning as the

counsel

guaranteed the defendant by the Sixth

Amendment;” and (2) that the deficient performance prejudiced the defense, which “requires
showing that counsels errors were so serious as to deprive the defendant ot a fair trial, a trial
whose icsult is icliahic
the plea context (see

II

‘

Also the Supierne ( ouit has held that the iiickland anaksis applL to
J_tJi4r 106 S Ct 366 (l98) Padillavkcntuck\ 130 5 (

1473. (201 0); Lafler v. Cooper. 132 S. Ct. 1376. (2012).

Furthermore, ‘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
protessionni judgment.” Strickland at 690. When rendering a judgment. “the court must then
determine whether, in light of all the circumstances, the identified acts or omissions were outside
the wide range of proli.ssiona1lv competent assistance”. however. “the court should rccogm/e
that counsel is strongly presumed to have rendered adequate assistance and made all significant
decisions in the excicise of reasonable professional judgment

Id Hocver,

an ciioi by

counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.” Id. at 29 1 The Petitioner must
.

show “there is a reasonable probability that, hut for counsels unproiessionaI errors, the result of
the proceeding would have been different” hi. at 703.

B. Petitioner’s Claim of Ineffective Representation With Regard to His Attorney’s
Advice to Reject the Plea Deal Fails to Meet the Strickland Test
Petitioner fails to satisfy the Strickland test because he has failed to establish that his attorney
was deficient by advising him to proceed to trial as he alleges, or prejudice as a result of that

alleged deficiency.
As to the first prong. Petitioner cites to no errors. either legal or factual, so serious that
counsel was not functioning as the “‘counsel’ guaranteed the petitioner by the Sixth
Amendment.” Strickland, 466 U.S. at 687. As to the second prong of Strickland, Petitioner has
failed to establish (1) that he would have accepted the plea offer; (2) that the Court would have
accepted it; and (3) that the sentence would have been less severe than the one imposed. Lafler,
132 S,Ct, at 1385. Specifically, he has failed to show that there was a “reasonable probability”
that he would have qualified to receive the “Safety Valve” under U.S.S.G.

§

§

5C1 .2 and 18 U.S.C.

3553(1).
The government requests a hearing to determine factual issues. A court has the discretion

whether to order a hearing to resolve the contested issues when a defendant petitions for 28
U.S.C.

§

2255 relief When the court is reviewing the record, “the court must accept the truth of

the movant’s factual allegations unless they are clearly frivolous on the basis of the existing
record.” Govt of Virgin Islands v. Forte. 865 F.2d 59, 62 (3d Cir. 1989). However, a court does
not have to grant a hearing if: “(1) the petitioner’s allegations, accepted as true, would not entitle
the petitioner to relief or (2) the allegations cannot be accepted as true because they are

contradicted by the record, inherently incredible, or conclusions rather than statements of fact.
Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995). The Court denies the request for a
hearing.

IV.

CONCLUSION
For the reasons stated above, Petitioner’s Motion under 28 U.S.C. § 2255 is denied. An

appropriate Order accompanies this Opinion.
/7/

Dennis M. Cavanaugh,

24a&u5T
Orig:
cc:

Clerk
All Counsel of Record
File

.

.D.J.