Sarabia v. USA
Filing
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MEMORANDUM OPINION. Signed by District Judge R Leon Jordan on 6/10/19. (copy mailed to Tomas Estrada Sarabia at Lee) (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
TOMAS ESTRADA SARABIA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Nos. 2:16-CV-86-RLJ;
2:10-CR-110-RLJ-MCLC
MEMORANDUM OPINION
Federal inmate Tomas Estrada Sarabia (“Petitioner”) brings this pro se motion to vacate,
set aside or correct sentence under 28 U.S.C. § 2255, challenging his convictions for cocaine
conspiracy and firearms offenses, entered pursuant to guilty pleas [Doc. 1]. 1 The United States
has responded in opposition to the § 2255 motion [Doc. 3 ], and Petitioner has replied [Doc. 9 ].
The Court finds the materials thus submitted, together with the record of the underlying
criminal case, conclusively show that Petitioner is not entitled to relief under § 2255. Accordingly,
the Court will decide the motion to vacate without an evidentiary hearing. Ewing v. United States,
651 F. App’x 405, 409 (6th Cir. 2016) (explaining that an evidentiary hearing is unnecessary where
allegations are “contradicted by the record, inherently incredible, or conclusions rather than
statements of fact” (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)); see
1
All docket references are to Case No. 2:16-CV-86, unless otherwise noted.
also United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir. 1993). For the reasons which follow,
the Court finds that Petitioner’s § 2255 motion is without merit and it will be DENIED and
DISMISSED with prejudice.
I.
PROCEDURAL AND FACTUAL BACKGROUND
On October 14, 2010, a federal grand jury filed a 107-count indictment charging Petitioner
and 35 co-defendants with various offenses [Doc. 3, Case No. 2:10-CR-110]. A superseding
indictment was returned on January 11, 2011, adding 36 additional counts [Doc. 214, Case No.
2:10-CR-110]. Petitioner was charged in 35 of those counts with firearms-related offenses (5
counts) and drug-trafficking offenses (30 counts) [Id., Case No. 2:10-CR-110].
At his
arraignment, Petitioner established that he needed a Spanish interpreter [Doc. 4, Case No. 2:10CR-110].
On August 3, 2011, Petitioner agreed to plead guilty to one count of conspiring to distribute
and possess with the intent to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841(b)(1)(A) and 846 (Count 1), and two counts of possession of a firearm in furtherance of
drug trafficking crimes, in violation of 18 U.S.C.§ 924(c)(1)(A) (Counts 67 and 93) [Doc. 460 ¶
1, Case No. 2:10-CR-110]. The remaining counts were to be dismissed [Doc. 460 ¶2, Case No.
2:10-CR-110].
At Petitioner’s guilty plea hearing, a presentence investigation report (“PSR”) was ordered
and sentencing was set for January 10, 2012 [Doc. 473, Case No. 2:10-CR-110]. Sentencing was
continued four times and, ultimately, was scheduled for November 27, 2012 [Docs. 683, 834, 994,
1057, Case 2:10-CR-110.].
In the PSR, the probation officer found that, for the cocaine conspiracy, Petitioner’s base
offense level was 34, pursuant to U.S.S.G. § 2D1.1(c)(3) [PSR ¶ 58], based on a stipulated quantity
2
for which Petitioner’s was held accountable of at least 160 kilograms of marijuana and 45 kilograms
of cocaine [PSR ¶ 58]. Those drug quantities converted to a marijuana equivalent of 9,160 kilograms
[PSR ¶ 58]. Three levels were added, pursuant to U.S.S.G. § 3B1.1, for Petitioner’s managerial
or supervisory role in the conspiracy [PSR ¶ 61]. An additional two levels for Petitioner’s use
of a minor to participate in the conspiracy, U.S.S.G. § 3B1.4, led to an adjusted offense level of
39 (34 + 3 + 2 = 39) [PSR ¶¶ 62, 64]. Subtracting three levels for acceptance of responsibility
resulted in a total offense level of 36, which, combined with Petitioner’s criminal history category
of III, resulted in an advisory guideline range on the conspiracy count of 235 to 293 months
[PSR ¶¶ 56, 65, 80, 94-95].
The statutory mandatory consecutive 60-month sentence on the Petitioner’s first
conviction for possession of a firearm in furtherance of a drug trafficking crime (Count 67),
added to the statutory mandatory consecutive 300-month sentence for the second such offense
(Count 93), resulted in a net guideline sentence of 595 to 653 months (235 months + 60 months
+ 300 months = 595 months; 293 months + 60 months +300 months = 653 months) [PSR ¶¶ 9495].
Petitioner objected to the two-level enhancement under U.S.S.G. § 3B1.4 (using a minor
to participate in acts of conspiracy), but the objection was denied as moot [Doc. 1062 at 5 n.2
and 1064, Case No. 2:10-CR-110]. The Court varied downward on Count One and imposed the
statutory mandatory minimum 480-month sentence (120 months on Count One, 60 months on
Count 67, and 300 months on Count 93, all terms to be served consecutively), which was
significantly below the effective guidelines range of 595-653 months [Doc. 1064, Case No. 10CR-110]. The 480-month total sentence was the exact sentence requested by Petitioner in his
Sentencing Memorandum [Doc. 1062, Case No. 2:10-CR-110] and was also the lowest possible
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sentence he could have received, absent a government motion for a downward departure.
Kimbrough v. United States, 552 U.S. 85,108 (2007) (holding that district courts are constrained
by mandatory minimums in the imposition of sentences). The remaining counts were dismissed
on the government’s motion [Doc. 1062, Case No. 2:10-CR-110].
Two notices of appeal were filed—the first one by counsel and the second by Petitioner
acting pro se [Docs. 1067 and 1068, Case No. 2:10-CR-110]. The sole issue presented on direct
appeal was whether this Court committed plain error in failing to establish a factual basis for
Petitioner’s pleas to the firearms counts, given his dispute with the factual basis as articulated by
the prosecutor at the guilty plea hearing [Doc. 1153, Case No. 2:10-CR-110]. The Sixth Circuit
found no merit to the claim and affirmed the judgment on January 13, 2015 [Doc. 1153, Case No.
2:10-CR-110]. Petitioner filed this timely § 2255 motion on April 13, 2016 [Doc. 1].
As a factual basis for his guilty pleas, Petitioner stipulated to the following facts:
From May of 2008 to the end of October 2010, Petitioner was the primary source and
supplier of cocaine and marijuana involved in the conspiracy to distribute those drugs [Doc. 460
¶4(b), Case. No. 2:10-CR-110]. Petitioner obtained kilograms of drugs (acquiring a kilogram of
cocaine every two weeks), he personally sold cocaine, and he distributed the remaining cocaine to
up to 50 other co-conspirators who then redistributed it [Doc. 460 ¶ 4(b) and (c), Case No. 2:10CR-110]. The total drugs distributed during the conspiracy was at least fifteen but less than fifty
kilograms of cocaine [Doc. 460 ¶ 4(a), Case No. 2:10-CR-110].
From November 2009 to July 2010, law enforcement officials arranged for confidential
informants to participate in more than fifty controlled drug transactions, with eleven transactions
occurring between the informant and Petitioner himself. The informants purchased over 500
grams of cocaine from Petitioner or individuals under his direction.
4
During two recorded
transactions, the first on June 9, 2010, and the second on August 13, 2010, Petitioner displayed
firearms to the informant. During the first transaction, Petitioner displayed five firearms—one of
which was a 9-millimeter pistol, a weapon Petitioner routinely carried. The firearms displayed
during the second recorded transaction were a loaded, semi-automatic pistol and a loaded revolver,
and the transaction was also captured on video. Authorized wiretapped telephone conversations
between Petitioner and others confirmed that Petitioner was conspiring to distribute cocaine and
marijuana.
On October 22, 2010, law enforcement officials executed thirteen search warrants on
Petitioner’s residence and other locations associated with the conspiracy, seizing a total of 3.5
kilograms of cocaine and 200 pounds of marijuana. The search of Petitioner’s residence uncovered
fifteen baggies of cocaine (fourteen located in a cooler and one in Petitioner’s bedroom) that
together yielded .5 kilogram of cocaine; a .25 caliber pistol and over $7,500 in cash in Petitioner’s
bedroom; and a 9-millimeter pistol, ammunition, digital scales, and drug ledgers in a codefendant’s bedroom.
II.
STANDARD OF REVIEW
This Court must vacate and set aside Petitioner’s sentence if it finds that “the judgment
was rendered without jurisdiction, or that the sentence imposed was not authorized by law
or otherwise open to collateral attack, or that there has been such a denial or infringement
of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral
attack . . .” 28 U.S.C. § 2255. Under Rule 4 of the Rules Governing Section 2255 Proceedings,
the Court is to consider initially whether the face of the motion itself, together with the annexed
exhibits and prior proceedings in the case, reveal the movant is not entitled to relief. If it plainly
appears the movant is not entitled to relief, the Court may summarily dismiss the §2255 motion
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under Rule 4.
When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief.
Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O’Malley v. United States, 285 F.2d 733, 735
(6th Cir. 1961). “Conclusions, not substantiated by allegations of fact with some probability of
verity, are not sufficient to warrant a hearing.” O’Malley, 285 F.2d at 735 (citations omitted).
A motion that merely states general conclusions of law without substantiating allegations
with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959);
United States v. Johnson, 940 F. Supp. 167, 171 (W.D. Tenn. 1996). In order to obtain relief
under § 2255, a petitioner must clear a considerably higher hurdle than he would have to
surmount on direct appeal. United States v. Frady, 456 U.S. 152 (1982).
To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error
must be one of constitutional magnitude which had a substantial and injurious effect or
influence on the proceedings. Brecht v. Abrahamson, 507 U.S.
619, 637 (1993) (citation
omitted) (§ 2254 case); Clemmons v. Sowders, 34 F. 3d 352, 354 (6th Cir. 1994); see also
United States v. Cappas, 29 F.3d 1187, 1193 (7th Cir. 1994) (applying Brecht to a § 2255
motion). If the sentencing court lacked jurisdiction, then the conviction is void and must be
set aside. Williams v. United States, 582 F. 2d 1039, 1041(6th Cir. 1978).
III.
DISCUSSION
Petitioner asserts three grounds for relief in his motion, all premised on claims of ineffective
assistance of counsel. Petitioner claims that counsel coerced him to plead guilty [Doc. 1 at 4].
Petitioner next claims counsel “fail[ed] to advise [him of] the consequences of [his] plea agreement
with an uncertified interpreter” [Id. at 5]. Petitioner maintains third that counsel failed to raise a
claim under the authority of Alleyne v. United States, 570 U.S. 95 (2013).
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A.
Governing Law
1.
Ineffective Assistance of Counsel
A petitioner alleging ineffective assistance must satisfy the two-part test set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1987). First, the petitioner must establish, by
identifying specific acts or omissions, that counsel’s performance was deficient and that counsel
did not provide “reasonably effective assistance,” id., as measured by “prevailing professional
norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005). A court must presume that counsel’s
assistance was effective, and a petitioner bears the burden of showing otherwise. Mason v.
Mitchell, 320 F.3d 604, 616–17 (6th Cir. 2003); Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998)
(cautioning reviewing courts to “remember that ‘counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable professional
judgment’”) (quoting Strickland, 466 U.S. at 690); see also Strickland, 466 U.S. at 689 (directing
that courts “must indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must overcome the presumption that .
. . the challenged action might be considered sound . . . strategy” (internal citation omitted)).
Second, a petitioner must demonstrate prejudice, which in a guilty plea context requires
him to “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 v. Lockhart, 474 U.S. 52, 59 (1985).
A court must be mindful that “[a]n error 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.” Strickland, 466 U.S. at 691; see also Smith v. Robbins, 528 U.S. 259, 285–86 (2000).
Furthermore, if “it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice . . . that course should be followed.” Strickland, 466 U.S. at 697.
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2.
Guilty Pleas
“A plea of guilty is more than a confession which admits that the accused did various facts;
it is itself a conviction; nothing remains but to give judgment and determine punishment.” Boykin
v. Alabama, 395 U.S. 237, 242 (1969). Because of the consequences stemming from a guilty plea,
a plea-taking court must ascertain that the plea is voluntary and knowing and that it is being
proffered with sufficient awareness of the relevant circumstances and the probable and direct
consequences of the plea. Brady v. United States, 397 U.S. 742, 748–49 (1979). In determining
the validity of a guilty plea, “[t]he standard was and remains whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the defendant.”
North Carolina v. Alford, 400 U.S. 25, 31 (1970).
Following the entry of an unconditional plea, a petitioner “may only attack the voluntary
and intelligent character of the guilty plea” by showing that counsel’s advice was outside “the
range of competence demanded of attorneys in criminal cases.” Tollett v. Henderson, 411 U.S.
258, 264, 267 (1973) (citation omitted). “When a criminal defendant has solemnly admitted in
open court that he is in fact guilty of the offense with which he is charged, he may not thereafter
raise independent claims relating to the deprivation of constitutional rights that occurred prior to
the entry of the guilty plea.” Id. at 267. “The point of [Tollett and Brady, inter alia] is that a
counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and
intelligent, it quite validly removes the issue of factual guilt from the case.” Menna v. New York,
423 U.S. 61, 63 n.2 (1975).
B.
Claims 1 and 2: Counsel was Ineffective by Coercion/ Failure to Advice (sic)
Consequences of Plea Agreement with Uncertified Interpreter
The first two claims are intertwined and have been combined to streamline the Court’s
discussion. In both, Petitioner maintains that counsel used an uncertified interpreter who could not
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translate properly the terms of his plea agreement from English to Spanish and then failed to establish
on the record that Petitioner, who had a fifth-grade Mexican education, understood the terms of his
plea agreement.
1.
Petitioner’s Allegations
More specifically, Petitioner asserts that counsel’s use of an “unknown associate” who was
in failing health and was not a certified interpreter to serve as an interpreter during their meetings,
particularly the meeting where the plea agreement was discussed, amounted to a deficient
performance [Doc. 1 at 15-16]. Petitioner makes no explicit claim of prejudice. The closest
Petitioner comes to alleging prejudice is his contention that, had he not been advised by counsel
“under duress to answer yes to Judge[,] . . . then he would have objected during the plea hearing
and sentencing and would have gone trial of receving (sic) ‘new’ information of getting 25 years
of mandatory minimum and the evidence presented in light of the video footage pursuant to Count
(sic) 66 and 92” 2 [Doc. 1 at 22]. Actively interpreting Petitioner’s nearly incomprehensible
allegation, the Court understands that Petitioner is contending that he was prejudiced from
counsel’s conduct because, had he understood that his plea to Count 93 would entail a consecutive
25-year sentence, he would have rejected the plea and gone to trial.
Specifically, Petitioner’s claims that counsel used an uncertified interpreter during the plea
negotiations who lacked “knowledge to adequately translate proper Spanish” and “sufficient
health” to translate the conversations between him and his counsel [Doc. 1 at 15]. Petitioner
maintains that the interpreter also failed to ensure that he understood that the prosecution had to
prove beyond a reasonable doubt the facts surrounding his crime and the elements thereto,
2
Recall that Petitioner did not plead guilty to Counts 66 and 92, that these counts were dismissed upon the
government’s motion at sentencing, and that he pled guilty to Counts 67 and 93 (both for possession of a
firearm in furtherance of a drug trafficking offense). Counts 66 and 92 were the predicate drug trafficking
offenses for Counts 67 and 93, all of which were based on recorded transactions.
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especially the elements of his firearms offenses [Doc. 1 at 15-16]. Petitioner argues that counsel
knew that the interpreter’s declining health—a fact of which Petitioner learned from counsel
months after the signing of the plea agreement—made Petitioner “an easy target to manipulate”
and caused him to be “easily influence[d] to sign a guilty plea with no proper translation as to what
he [wa]s actually signing” [Doc. 1 at 16].
Petitioner also asserts that counsel chose to avoid a trial because Petitioner’s lack of
comprehension of the law would have posed an impediment at trial and that counsel chose instead
to take advantage of Petitioner’s legal naivete to manipulate him “to sign a guilty plea under
coercion” [Doc. 1 at 19-20]. The first step in counsel’s purported plan to coerce his client’s guilty
pleas was to use an unknown interpreter who failed to show Petitioner her credentials to establish
that she was a credible and potential translator [Doc. 1 at 19]. Because of Petitioner’s alleged lack
of a prior criminal record, he trusted counsel and assumed that the interpreter was “adequate” and
would “ensure all facts, evidence, and information were true and correct” [Doc. 1 at 20].
In an affidavit submitted in support of the § 2255 motion, Petitioner avers that the
interpreter translated the plea agreement as containing an offer of a 14- to 44-year sentence, but
went on to explain that Petitioner could only be given 22 years’ imprisonment because he had no
prior criminal record [Doc. 1 at 83]. Petitioner further states that when counsel ultimately told
Petitioner that he would be receiving an enhanced sentence, Petitioner responded that he thought
his sentence would be 14 to 44 years, but that he really would face only “22 years due to not having
a prior criminal history” [Doc. 1 at 84]. Counsel purportedly replied to Petitioner’s remark by
telling him that “that was never offered” [Doc. 1 at 84]. Petitioner avers that when he “learned of
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the misadvise (sic),” he told counsel that he wanted to stand trial but that counsel dismissed his
desire to go to trial and assured Petitioner that he would be sentenced fairly [Doc. 1 at 84]. 3
Petitioner also contends, in a letter to the Court, that counsel pressured him to plead guilty
and used “scare tactic” by telling Petitioner that he was facing life imprisonment and that his family
would also be arrested and brought into custody and by warning him not to mention these things
“specially to the Judge” [Doc. 1 at 142]. Petitioner thus concludes that his guilty pleas are invalid
due to counsel’s ineffective assistance [Doc. 1 at 16].
2.
Analysis
From Petitioner’s allegations involving the “[s]o called Spanish Interpreter” hired by
counsel [Doc. 1 at 15], the Court discerns that Petitioner is challenging only the translation
provided him by the interpreter whom counsel brought with him to meetings, and not the
interpreter(s) hired by the Court for Petitioner’s in-court proceedings. Therefore, the claims will
be analyzed under constitutional principles, rather than the guidelines set out in the Court
Interpreter’s Act, 28 U.S.C. § 1827—a statute designed to enable a non-English speaking
defendant to comprehend the proceedings in the courtroom and to communicate effectively with
his attorney. United States v. Sanchez, 928 F.2d 1450, 1455 (6th Cir. 1991), abrogated on other
grounds by United States v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002). Notably, the statute
3
The logical implication of Petitioner’s statement that he told counsel he wanted to go to trial is that this
statement was made prior to his guilty plea hearing, where he waived his right to a jury trial. If the Court
has drawn the correct inference, this means that Petitioner entered guilty pleas pursuant to a plea agreement
that he knew did not provide for either 14 to 44 years’ imprisonment or 22 years’ imprisonment, as the outof-court interpreter purportedly told him. Moreover, even absent this inference, the interpreter hired by the
Court for in-court proceedings interpreted at the plea-taking hearing, wherein the prosecutor explained that
“[w]ith regard to count 93 the [Petitioner] would be subject to a term of imprisonment of a minimum
mandatory 25 years” [Doc. 1120 at 17, Case. No. 2:10-CR-110]. As discussed later in this opinion,
Petitioner has not alleged any inaccuracies in the interpretation provided at that plea hearing.
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“does not create new constitutional rights for defendants or expand existing constitutional
safeguards.” United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir. 1990).
At the outset, the Supreme Court has never held that the Constitution requires an interpreter
for a non-English speaking criminal accused. United States v. Johnson, 248 F.3d 655, 663 (7th
Cir. 2001) (observing that the Supreme Court “has yet to recognize the right to a court-appointed
interpreter as a constitutional one”); Rodriguez v. Warden, No. 16-2419, 2017 WL 4677203, at *3
(6th Cir. July 3, 2017) (same) (citing Nguyen v. Booker, 496 F. App’x 502, 506 (6th Cir. 2012),
and Johnson, 248 F.3d at 663). Nor does the Constitution mandate that an interpreter be certified.
United States v. Silva-Arzeta, 602 F.3d 1208, 1217 (10th Cir. 2010) (agreeing that the use of
certified interpreters during interrogation “could improve the accuracy of evidence at trial” but
declining to “hold that their use is constitutionally required”).
However, the Sixth Amendment guarantees a defendant the right to counsel which
necessarily implies “the right to the effective assistance of counsel.” Strickland, 466 U.S. at 68586 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). Petitioner can prevail on his
claim of ineffective assistance with regard to the use of an uncertified interpreter to translate the
plea agreement if he shows that counsel’s performance was unreasonable under prevailing
professional norms and that, but for counsel’s deficient performance, Petitioner would have
rejected the plea bargain and would have insisted on standing trial. Petitioner has not made that
showing.
Many of Petitioner’s arguments are difficult to follow, speculative, illogical (if not
impenetrable), or disproven by the record. For example, Petitioner maintains that, months after he
entered his pleas, he learned from counsel that the defense’s interpreter was in ill health. Based
on this single snippet of information, Petitioner concludes that counsel used an interpreter who
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was unwell to make it easier to manipulate and influence him to sign an improperly-translated plea
agreement.
First, there is nothing to suggest that the interpreter secured by counsel had an illness at the
time she translated Petitioner’s plea agreement. The timing of any alleged error on the part of
counsel is important because courts must assess the “reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland,
466 U.S. at 690. Second, Petitioner has not explained what role the unidentified illness allegedly
suffered by defense’s interpreter played in the translation of the plea agreement into Spanish. Nor
has Petitioner revealed how the interpreter’s purported illness caused Petitioner to become “an
easy target to manipulate.” The Court is unable to find a thread of logic in this argument.
Petitioner’s claim of coercion that rests on the suggestion that he was more susceptible to
coercion because he was ignorant of the law due to his lack of a criminal history [Doc. 1 at 20] has
no evidentiary basis. While Petitioner’s criminal history was not extensive, the PSR reveals that
he had a criminal history category of III [PSR ¶¶ 72-27, 80]. This claim of coercion is based on
the demonstrably false premise that Petitioner lacked a criminal history. Therefore, it lacks merit.
The next claim of coercion is bottomed on Petitioner’s allegation that counsel told the
interpreter to stop writing notes and that counsel refused to submit for Petitioner’s records a copy
of the written notes that the interpreter promised to provide him [Doc. 1 at 86]. Petitioner does
not indicate how counsel’s claimed actions constitute a deficient performance or how those actions
prejudiced his defense.
Counsel’s conduct is strongly presumed to be within the wide range of reasonable
professional assistance. Strickland, 466 U.S. at 689. It is Petitioner’s burden to prove his claims
and, suffice it to say, that he has provided nothing upon which to find any deficient performance
13
on counsel’s part by instructing the interpreter not to take notes. See e.g., United States v. Valdivia,
60 F.3d 594, 595 (9th Cir. 1995) (finding that counsel’s use of defendant’s daughter as interpreter
fell “within the counsel's range of professionally competent assistance” since “there is no
requirement that an attorney hire an impartial translator for client meetings”).
As another instance of coercive conduct, Petitioner maintains that counsel pressured him
to plead guilty by advising him that he was facing life imprisonment and that his family would
also be arrested and brought into custody. If the alleged advice concerning a possible life sentence
was given by counsel prior to Petitioner’s decision to plead guilty, the offenses to which he entered
guilty pleas indeed carried sentences, according to the written plea agreement, of “up to life” on
the cocaine conspiracy or “not more than life” for the offenses of possession of a firearm in
furtherance of a drug trafficking crime [Doc. 460 ¶¶ 1(a)-(c)].
The Court finds that “correctly informing a defendant that he may face a greater sentence
after conviction at trial is not coercion, and in fact, failure to do so may qualify as ineffective
assistance of counsel.” United States v. Taylor, 254 F. Supp. 3d 145, 159 (D.D.C. 2017), app.
dismissed, No. 17-3055, 2018 WL 4099683 (D.C. Cir. July 23, 2018).
The claimed pressure involving the threat of an arrest of Petitioner’s family is not
accompanied with the necessary factual development. For example, Petitioner does not identify
the family member who was to be arrested and detained or whether that family member was also
alleged to have played a role in the drug trafficking conspiracy.
A threat to arrest a family member is not coercive if the threat could have been executed
lawfully, as would be the case if a family member participated in a drug conspiracy in violation of
federal drug laws. See, e.g., United States v. Johnson, 351 F.3d 254, 263 (6th Cir. 2003) (police
threat to arrest defendant’s girlfriend is not coercive and does not render confession involuntary
14
where facts are sufficient to create probable cause to arrest her). As it is, a conclusory claim, as is
this one, fails to state a claim for collateral relief. Lynott v. Story, 929 F.2d 228, 232 (6th Cir.
1991) (observing that bare, conclusory allegations, unsupported by facts, cannot establish a
constitutional violation); Loum, 262 F.2d at 867 (explaining that a motion that lacks substantiating
factual contentions lacks merit).
Petitioner’s claim that counsel failed to advise him of the consequences of his plea
agreement with an uncertified interpreter centers on the consecutive 300-month sentence Petitioner
received for his second § 924(c) conviction for possession of a firearm in furtherance of a drug
trafficking offense as charged in Count 93. Petitioner essentially is alleging that he did not
understand that he could be sentenced to a consecutive 25 years’ imprisonment for his second §
924(c) offense. Again, the record refutes Petitioner’s claim that he was not advised of the
consequences of his plea to the § 924(c) offenses.
During his guilty plea hearing, Petitioner assured the Court, under oath, that counsel
explained the terms of plea agreement to him, that counsel advised him as to every element of the
charged offenses, that he understood the facts upon which his pleas were based and to which he
admitted in the plea agreement, that he understood to what he was pleading guilty, that he
understood all the rights he was giving up by pleading guilty, that he was offering to plead guilty
because he in fact was guilty, and that no person had pressured him mentally or physically to force
him to plead guilty [Doc. 1129, Case No. 2:10-CR-110]. Indeed, during the Court’s inquiry into
whether Petitioner had been pressured to plead guilty, Petitioner stated, unprompted, that “[t]his
is voluntary” [Doc. 1129 at 8, Case No. 2:10-CR-110]. It should be noted that during the guilty
plea hearing, Petitioner had the services of interpreters hired by the Court whom he has never
claimed were not qualified or did not perform adequate interpretation of those proceedings.
15
The plea hearing transcript reflects that, after the government’s attorney summarized the
factual basis underlying the pleas, Petitioner stated that he did not agree “with the part about the
weapons, not all the way because it’s not exactly the way he said it was. But it doesn’t matter, I’ll
take responsibility” [Doc. 1129 at 1, Case No. 2:10-CR-110]. Petitioner’s disagreement with one
part of the factual recitation suggests that he had sufficient understanding of the entirety of the
government’s summary of what he had done to express disagreement as to one specific part of it.
Too, the character of the objection shows that any alleged disagreement with the factual
basis stated by the government’s attorney did not stem from a translational inaccuracy, but from
the facts iterated to support Petitioner’s firearms offenses.
And even that discrete factual
disagreement did not stop Petitioner from pleading guilty because, as the Sixth Circuit noted in his
direct appeal, Petitioner stated that “it didn’t matter and he would take responsibility” and that “he
was pleading guilty because he was in fact guilty of the charges” [Doc. 1153 at 3, Case No. 2:10CR-110]. The transcript of Petitioner’s guilty plea hearing affirms that he understood to what he
was pleading guilty and that he was offering to plead guilty because he in fact was guilty [Doc.
1129 at 15, Case No. 2:10-CR-110].
Further, Petitioner specifically was told during the plea hearing that, with respect to Count
93, i.e., the second § 924(c) offense, he was subject to a minimum mandatory 25 years’
imprisonment up to life to be served consecutively to the sentences for the other two counts [Doc.
1129 at 19, Case No. 2:10-CR-110]. Petitioner, when asked if he still wished to plead guilty
knowing all the penalties to be imposed pursuant to his guilty pleas, answered in the affirmative
[Doc. 1129 at 20, Case No. 2:10-CR-110]. The Court then determined that Petitioner understood
the nature of the charges to which the plea was offered, the maximum and minimum penalties
16
provided by law for the offenses, and the plea agreement made on his behalf [Doc. 1129 at 20,
Case No. 2:10-CR-110].
“When an ineffective-assistance claim is based on misleading information regarding the
consequences of a plea, a proper plea colloquy is generally deemed to cure any misunderstanding
the defendant may have had about the consequences of the plea.” Thompson v. United States, 728
F. App’x 527, 535 (6th Cir. 2018) (quoting United States v. Pola, 703 F. App’x 414, 423 (6th Cir.
2017))). As the Supreme Court has stated:
[T]he representations of the defendant, his lawyer, and the
prosecutor at such a hearing, as well as any findings made by the
judge accepting the plea, 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).
So it is here. Indeed, at the guilty plea hearing, counsel stated that, “[f]or the record I
represent to the Court that the entire Plea-Agreement has been read to Mr. Estrada, word for word,
including the factual bases by a qualified interpreter” and that Petitioner had agreed to all the facts
[Doc. 1129 at 10, Case No. 2:10-CR-110]. Nothing in the record indicates Petitioner ever told
counsel that he was having difficulty understanding the out-of-court interpreter’s Spanish or her
explanation of the plea. The Court shares in the sentiments expressed by the Eleventh Circuit,
which the Court has paraphrased: “It would be an open invitation to abuse to allow an accused to
remain silent throughout the [plea proceedings] and then, upon being [adjudged] guilty [and
sentenced], assert a claim of inadequate translation.” United States v Joshi, 896 F2d 1303, 11th
Cir. 1990).
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The Court finds no deficiency in counsel’s representation regarding the plea agreement,
his alleged coercive conduct to induce guilty pleas, or his securing an uncertified interpreter to
attend his meetings with his client and to interpret the plea agreement. The Court further finds that
Petitioner has not shown that, but for counsel’s use of an uncertified interpreter during meetings
involving plea negotiations, particularly when counsel discussed, via the interpreter, the proposed
plea agreement, Petitioner would not have pled guilty to three counts, but would have insisted on
going to trial on all thirty-five counts charged in the superseding indictment (and faced two
additional §924(c) charges of possession of a firearm in furtherance of a drug trafficking offense).
The first two claims of ineffective assistance are without merit and do not warrant § 2255
relief.
C.
Claim 3: Counsel was Ineffective for Failing to Raise an Alleyne Claim
Citing Alleyne v. United States, 133 S. Ct. 2151 (2013), Petitioner argues that his attorney
was ineffective for failing to insist that a jury decide all facts which the Court relied upon to
sentence him to the five-year and twenty-five-year consecutive sentences for his two § 924(c)
convictions for possession of a firearm in furtherance of a drug-trafficking offense. Petitioner
misreads Alleyne. Alleyne only proscribes judicial findings of facts (other than the fact of a prior
conviction) which increase the statutory penalty for an offense.
The statutory penalty for Petitioner’s first § 924(c) offense was a mandatory minimum of
five years and for the second § 924(c) offense a mandatory minimum of twenty-five years—both
consecutive to each other and to the drug conspiracy sentence, 18 U.S.C. § 924(c)(1)(A)(i) and §
924(c)(1)(C)(i). Petitioner’s sentence for the drug conspiracy was a mandatory minimum tenyear’s imprisonment. No fact found by this Court increased his statutory penalties for those three
offenses. Indeed, the penalties for these offenses were set forth in Petitioner’s negotiated plea
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agreement and urged upon the Court in his Sentencing Memorandum. Petitioner received the
penalties he acknowledged he would receive in his bargained-for plea agreement.
Petitioner’s attorney’s performance was not deficient for his failure to make a pointless
request and appellate counsel’s performance likewise was not deficient for failing to raise a
meritless issue on direct review. See Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999) (no
constitutional deficiency in failing to raise meritless issues). Nor does prejudice ensue from a
failure to present a groundless claim. See, e.g., Hoffner v. Bradshaw, 622 F.3d 487, 499 (6th Cir.
2010) (explaining that counsel cannot be held constitutionally ineffective for failing to pursue a
meritless claim); United States v. Fry, 831 F.2d 664, 669 (6th Cir. 1987) (failure to raise a meritless
objection at sentencing not ineffective assistance).
Furthermore, if the claim had merit, counsel’s failure to raise an Alleyne claim must be
judged at the time of counsel’s alleged error. Strickland, 466 U.S. at 690 (instructing that the
reasonableness of counsel’s challenged conduct is to be evaluated based “on the facts of the
particular case, viewed as of the time of counsel’s conduct”). Here, Petitioner was sentenced in
November of 2012, and Alleyne was not decided until June 17, 2013. Trial counsel was not
ineffective for lacking the prescience to foresee the later-issued Alleyne ruling. See Alcorn v. Smith,
781 F.2d 58, 62 (6th Cir. 1986) (observing that counsel’s “failure to perceive or anticipate a change
in the law . . . generally cannot be considered ineffective assistance of counsel”).
IV.
CONCLUSION
For the reasons discussed in this Memorandum Opinion, Petitioner’s § 2255 motion to
vacate, set aside or correct sentence [Doc. 1] will be DENIED and DISMISSED.
Finally, under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if a petitioner has demonstrated a
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“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth
Circuit Court of Appeals disapproves of the issuance of blanket denials of certificates of
appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). The district court must “engage in
a reasoned assessment of each claim” to determine whether a certificate is warranted. Id. at 467.
Each issue must be considered under the standards set forth by the Supreme Court in Slack v.
McDaniel, 529 U.S. 473 (2000).
A certificate of appealability should issue if a petitioner has demonstrated a “substantial
showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner whose claims
have been rejected on the merits satisfies the requirements of § 2253(c) by showing that jurists of
reason would find the assessment of the claims debatable or wrong. Slack, 529 U.S. at 484.
Having examined each of Petitioner’s claims under the Slack standard, the Court finds that
reasonable jurists could not find the dismissal of such claims to be debatable or wrong. Therefore,
the Court will DENY issuance of a certificate of appealability.
IT IS SO ORDERED.
ENTER:
s/ Leon Jordan
United States District Judge
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