Flores-Mendez v. United States of America

Filing 3

OPINION & ORDER: For the reasons set forth above, petitioners § 2255 motion to vacate, set aside or correct his sentence is DENIED. The Clerk of Court is directed to terminate the petition at 17-cv-2768 ECF No. 1 and 13-cr-31 ECF No. 425 and to terminate 17-cv-2768, and as further set forth in this order. (Signed by Judge Katherine B. Forrest on 1/10/2018) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ISAIS FLORES-MENDEZ,
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Petitioner,
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-v:
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UNITED STATES OF AMERICA,
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Respondent.
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: January 10, 2018

13-cr-0031 (KBF)
17-cv-2768 (KBF)
OPINION & ORDER

KATHERINE B. FORREST, District Judge:
Isaias Flores-Mendez, currently incarcerated at U.S.P. Hazelton, brings a
petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. After
pleading guilty on March 13, 2013 to one count of illegal reentry under 8 U.S.C. §
1326 and on January 7, 2014 to one count of conspiracy to commit sex trafficking by
force under 21 U.S.C. § 1594, petitioner was sentenced on May 14, 2014 to lifetime
imprisonment. Petitioner now claims that his sentence was the result of ineffective
assistance of counsel. For the reasons set forth below, the petition is DENIED.
I.

BACKGROUND

Petitioner is a Mexican citizen who was deported from the United States
twice in 2006. (Presentence Investigation Report (“PSR”) ¶ 28.) He returned again
in 2009, (Plea Tr. at 17:17), working as a sex trafficker and used violence, threats of
violence, and other means of coercion to force women to engage in prostitution
against their will, (PSR ¶ 41; 13-cr-0031, ECF No. 361, Sen. Tr. at 9:21–10:15; id. at

19:13–18). He operated at least four brothels as well as a “door-to-door delivery
service,” at which men paid $30 in 15-minute intervals to have sex with women,
many of whom were victims of sex trafficking and forced prostitution. (PSR ¶ 41;
Sen. Tr. at 19:21–23; id. at 20:8–13.)
Typically, petitioner and his associates lured women from Mexico to the
United States by “engaging them in romantic relationships and promising a better
life in New York.” (PSR ¶ 35.) Once the women arrived in New York, they were
forced to work as prostitutes “against their will under abhorrent conditions. The
victims [were] often beaten; threatened with physical harm to themselves and their
family members; sexually assaulted; and verbally abused. During a typical day, a
Mexican sex trafficking victim in New York will have sexual intercourse with 20 to
30 customers.” (Id.) Victims are often moved from brothel to brothel on a weekly
basis to “provide customers with variety”; it was “not unusual for victims of New
York-based traffickers to work in brothels as far away as Delaware or
Massachusetts.” (Id. ¶ 37.) Victims were provided with condoms and birth control
pills; if a woman was suspected of being pregnant, her “trafficker will typically
make [her] take the drug misoprostol . . . to induce miscarriage so that [she] can
continue working as [a] prostitute[].” (Id. ¶ 38.)
Petitioner was arrested on January 2, 2013. (Id. ¶ 75.) On March 13, 2013,
he pled guilty to one count of illegal reentry after a Pimentel letter from the
Government. On January 7, 2014, he waived his right to proceed by way of
indictment and pled guilty pursuant to a plea agreement to one count of conspiracy
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to commit sex trafficking by force. (ECF No. 213, Plea Tr. at 9:12–14; 27:4.) At that
proceeding, petitioner represented under oath that no person, including his
attorney, had promised him what his sentence would be. (Id. at 17:7–9.)
Furthermore, he said that he understood that the count of conspiracy to commit sex
trafficking carries a maximum term of life imprisonment, (id. at 14:16–20), that his
guidelines range was 360 months to life imprisonment, and that in any case, the
Court was not bound to remain within that range, (id. at 18:4–19:16). Additionally,
petitioner said he knew that by pleading guilty, he was relinquishing his right to
challenge a modification of any sentence that is within or below 360 months to life
imprisonment. (Id. at 19:17–23.) Specifically, when asked if he understood that “if
[he pleads] guilty under this agreement with the government, the Court could
sentence him to life imprisonment and [he] would have no right to appeal,”
petitioner said “yes.” (Id. at 19:24–20:3.) On May 14, 2017, this Court sentenced
him to life imprisonment.
II.

LEGAL PRINCIPLES

A Court may dismiss a petition under § 2255 without directing the United
States attorney to file a response or 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.” Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013) (quoting
28 U.S.C. § 2255); Fed. R. Governing Sec. 2255 Proceedings for the U.S.D.C. 4(b) (“If
it plainly appears from the motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief, the judge must dismiss
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the motion and direct the clerk to notify the moving party.”). Here, the petition
raises no factual dispute and can thus be resolved without a Government response
and/or hearing.
To prevail on a claim of ineffective assistance of counsel, petitioner “must
[first] show that counsel’s representation fell below an objective standard of
reasonableness,” as measured against “prevailing professional norms.” Strickland
v. Washington, 466 U.S. 668, 688 (1984). In addition, he must demonstrate that
counsel’s “deficient performance prejudiced the defense,” id. at 687, meaning that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different,” id. at 694.
As to the first prong of Strickland, attorney conduct is subject to an objective
standard of reasonableness, and is accorded deference in light of the “range of
legitimate decisions” that accompanies the various circumstances encountered by
counsel. Id. at 688-89. As a result, reviewing courts “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance, bearing in mind that there are countless ways to provide
effective assistance in any given case and that even the best criminal defense
attorneys would not defend a particular client in the same way.” United States v.
Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (alterations and internal quotation marks
omitted) (quoting Strickland, 466 U.S. at 689).
As to the second prong of Strickland, a petitioner must show that, but for his
or her attorney’s deficient performance, there is a reasonable probability that the
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result would have been different. Strickland, 466 U.S. at 694. More is required
than a mere showing “that the errors had some conceivable effect on the outcome of
the proceeding,” as “not every error that conceivably could have influenced the
outcome undermines the reliability of the result of the proceeding.” Id. at 693.
Under Strickland, “strategic choices made [by counsel] after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation.” Id. 466 U.S. at 690–91. A defendant’s
counsel “may properly decide to forego a Fatico hearing as a ‘matter of strategy,’
and [the Second Circuit] presume[s] that such a strategy is sound absent a strong
showing to the contrary.” United States v. Santiago, 330 Fed. App’x 234, 238–39
(2d Cir. 2009) (quoting United States v. Lee, 818 F.2d 1052, 1056 (2d Cir. 1987)). In
any case, it may be “wise” to avoid a Fatico hearing “at which [the defendant’s] prior
violent conduct would have been reviewed in detail for the benefit of the district
court.” Id. at 239. “[I]n the absence of what evidence, if any, a Fatico hearing might
have established, [the Court] cannot conclude that counsel’s failure to request one
prejudice[s] [a defendant] in any way.” United States v. Costa, 423 Fed. App’x 5, 9
(2d Cir. 2011).
III.

DISCUSSION

Petitioner claims that his defense counsel “failed to render reasonably
effective assistance given the totality of the circumstances.” (Mot. at 4.)
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Essentially, petitioner: (1) claims his counsel promised him a sentence of no more
than ten years; and (2) challenges the veracity of the victim letter read by the
Government and referred to by the Court at sentencing.1
Petitioner claims that his counsel informed him that he would receive a
sentence of no more than ten years. However, at his plea hearing, petitioner
explicitly swore under oath that no person had made him a promise regarding a
specific sentence. This fact alone is enough to demonstrate that neither his guilty
plea nor his sentence were the result of unreasonable action by his counsel, who,
according to petitioner’s statement to the Court, did not promise a specific sentence.
In addition, though, petitioner affirmed under oath that he understood he was
pleading to a stipulating sentencing range of 350 months to life imprisonment and
and that by doing so, he relinquished his right to file a direct or collateral appeal of
a sentence within that range. Petitioner’s life sentence is within that range; and in
any case, the transcript clearly establishes that petitioner knew he could receive
such a sentence. As such, petitioner cannot demonstrate ineffective assistance on
either ground raised.
Separately, petitioner claims that a Fatico hearing would have revealed a
different story. However, without evidence of what a Fatico hearing might have
established, petitioner cannot demonstrate that his attorney’s actions were deficient

The Court notes that the motion filed by petitioner’s counsel does not clearly state this claim. Nevertheless, the
Court reads the petition generously for equity’s sake. The claim is identical to that raised in Bonifacio FloresMendez’s petition, which was filed by the same attorney. In fact, the claim references a Fatico hearing offered to
Bonifacio (not Isaias). A Fatico hearing was never offered to Isaias, but the Court will read this as a claim that
Isaias’s counsel should have requested one.
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or unreasonable. Simply put, the decision to request—or not request—a Fatico
hearing is a strategic one; often, counsel decides against a Fatico hearing to avoid
the risk of worsening his or her client’s outcome. Here, counsel likely did just that,
a reasonable assessment in light of the offense conduct to which defendant pled
guilty.
IV.

CONCLUSION

For the reasons set forth above, petitioner’s § 2255 motion to vacate, set aside
or correct his sentence is DENIED. The Clerk of Court is directed to terminate the
petition at 17-cv-2768 ECF No. 1 and 13-cr-31 ECF No. 425 and to terminate 17-cv2768.
SO ORDERED.
Dated:

New York, New York
January 10, 2018
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KATHERINE B. FORREST
United States District Judge

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