Orozco-Rios v. United States of America

Filing 27

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 3/1/12. (xc:Pro se party by regular and certified mail.)(afs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

SERGIO OROZCO-RIOS
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.

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No. 3:11-0973
Judge Trauger

M E M O R A N D U M
The petitioner, proceeding pro se, is an inmate at the Federal
Detention Center in Oakdale, Louisiana. He brings this action
pursuant to 28 U.S.C. § 2255 against the United States, asking the
Court to vacate, set aside or correct his sentence.
I. Background
On

March

25,

2010,

pursuant

to

a

plea

agreement,

the

petitioner pled guilty to conspiring to possess with the intent to
distribute cocaine. United States of America v. Sergio Orozco-Rios,
Criminal Action No.3:09-00186-6 (M.D. Tenn.), Docket Entry No.335.
For this crime, he received a sentence of one hundred twenty eight
(128) months in prison, to be followed by five years of supervised
release. Id., at Docket Entry No.470. Having pled guilty, there was
no direct appeal of the conviction taken by the petitioner.

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II. Procedural History
On October 11, 2011, the petitioner filed the instant § 2255
motion (Docket Entry No.1) attacking the conviction. In his motion,
the petitioner sets forth six instances in which he was allegedly
denied the effective assistance of counsel.1 These claims include
1)

counsel failed to conduct a reasonable
investigation into the charges and
formulate an adequate defense strategy;

2)

counsel “misrepresented material facts
as to the consequences and imprisonment
terms his guilty plea could bring”;

3)

counsel failed to subject the prosecution’s
case to a “meaningful adversarial testing”;

4)

counsel neglected to bring a translator
with him during his visits with the
petitioner;

5)

counsel coerced the petitioner into
signing the Plea Agreement; and

6)

the cumulative effect of counsel’s errors
served to deprive the petitioner of the
effective assistance of counsel.

After examining the motion, the Court found that it was not
facially frivolous. Accordingly, by an order (Docket Entry No.3)
entered October 18, 2011, the United States Attorney for this
judicial

district

was

directed

to

file

an

answer,

plead

or

otherwise respond to the motion. Rule 4(b), Rules --- § 2255 Cases.
Presently pending before the Court is the Government’s Answer

1

The petitioner was represented by Barry Tidwell, a member
of the Rutherford County Bar.
2

(Docket Entry No.22) opposing the motion, to which the petitioner
has offered no reply.
Having carefully considered the pleadings and the record, it
does not appear that an evidentiary hearing is needed in this
matter. see Smith v. United States, 348 F.3d 545, 550 (6th Cir.
2003)(an evidentiary hearing is not required when the record
conclusively shows that the petitioner is entitled to no relief).
Consequently, the Court shall dispose of the § 2255 motion as the
law and justice require. Rule 8(a), Rules --- § 2255 Cases.
III. Analysis of the Claims
The petitioner cites six instances in which he was allegedly
denied the effective assistance of counsel. The Sixth Amendment
provides that a criminal defendant is entitled to the effective
assistance of counsel. McMann v. Richardson, 379 U.S. 759,771
(1970). An ineffective assistance claim will only succeed, however,
if the petitioner can demonstrate that his attorney’s performance
was in some way deficient and that the defense was prejudiced as a
result of the deficiency. Strickland v. Washington, 466 U.S. 668
(1984). Within the context of a guilty plea, the petitioner must
show

that,

but

for

counsel’s

errors,

there

is

a

reasonable

probability that he would have proceeded on to trial rather than
plead

guilty.

Hill

v.

Lockhart,

474

U.S.

52,59

(1985).

When

considering such a claim, counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in

3

the exercise of reasonable professional judgment. Mallett v. United
States, 334 F.3d 491,497 (6th Cir. 2003).
The petitioner first contends that his attorney failed to
conduct a reasonable investigation into the charge and formulate an
adequate defense strategy (Claim No.1).
The respondent argues, and the Court agrees, that there was
overwhelming evidence of the petitioner’s guilt. In light of such
evidence, counsel determined that it was in the petitioner’s best
interest to cooperate with the Government as much as possible to
obtain a lighter sentence. Docket Entry No.22-3 at pg.2.
At the hearing to discuss petitioner’s Plea Petition, the
petitioner admitted his guilt to the charge. Docket Entry No.22-2
at pg.17. He acknowledged discussing possible defenses with counsel
and stated that he was satisfied with counsel’s investigation of
the case. Id., at pgs.4-5. A plea colloquy is a solemn event and
“dispositions by guilty pleas are accorded a great measure of
finality.” Blackledge v. Allison, 431 U.S. 63,71 (1977). Because
courts must be able to rely on a defendant’s statements to a plea
colloquy, “allegations in a § 2255 motion that directly contradict
the petitioner’s sworn statements made during a properly conducted
Rule 11 colloquy are always ‘palpably incredible’ and patently
frivolous or false’”. United States v. McMaster, 403 F.3d 216,221
(4th Cir. 2005).
This particular allegation of ineffective assistance runs

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contrary to the petitioner’s sworn statements made to the Court
during his plea hearing. There is nothing in the record to suggest
that

petitioner’s

sworn

statements

may

have

been

in

any

way

inaccurate or coerced. Consequently, the Court finds no merit in
this claim.
The petitioner next claims that he was denied the effective
assistance of counsel because his attorney “misrepresented material
facts as to the consequences and imprisonment terms his guilty plea
could bring” (Claim No.2).
The

petitioner,

however,

has

neglected

to

identify

the

“misrepresented material facts” referred to in his claim. Docket
Entry No.1 at pg.6. Nor does the record suggest that counsel misled
the petitioner in any way as to the consequences of his guilty plea
or the potential length of his sentence. Accordingly, the Court
finds no merit in this claim as well.
The petitioner believes that counsel was deficient for failing
to subject the prosecutor’s case to a “meaningful adversarial
testing” (Claim No.3).
During petitioner’s plea hearing, the prosecution set forth
the factual basis for the charge against him. Docket Entry No.22-2
at pgs.15-16. Defense counsel did not challenge the facts as
recited by the prosecution and when asked if the prosecutor had
accurately described his role in the conspiracy, the petitioner
responded “Yes”. Id., at pg.17. The petitioner, by his own words,

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conceded that the evidence available to the prosecution supported
his guilty plea. Therefore, counsel was not deficient for failing
to further test the prosecution’s case.
The petitioner is a native of Mexico and “is not fluent in the
English language”. Docket Entry No.1 at pg.7. He argues that
counsel was deficient for failing to bring a translator with him
during their visits (Claim No.4).
The petitioner asserts that, without a translator, he was
unable to properly confer with his attorney and intelligently
participate in his defense. Id., at pg.8. In an affidavit, defense
counsel averred that he had met with the petitioner on eight
occasions.

Docket

Entry

No.22-3

at

pg.1.

Counsel

recalled

communicating with the petitioner very well without a translator.
Id., at pg.2. However, out of an abundance of caution, counsel
brought a translator to discuss the Plea Agreement and the Plea
Petition. He also provided the petitioner with copies of those
documents in both English and Spanish.2 Id.; see also Docket Entry
No.22-1.
At the plea hearing, the petitioner testified that he had
discussed possible defenses with counsel and that he had read and
fully understood the Plea Agreement and Plea Petition. Docket Entry
No.22-2

at

pgs.4-7.

He

acknowledged

2

receiving

a

copy

of

the

At his plea hearing, the petitioner acknowledged that he
could read and write Spanish. Docket Entry No.22-2 at pg.3.
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indictment,
petitioner

reading
also

it

and

confirmed

discussing

that

he

it

with

understood

counsel.

the

The

accusations

against him and that he had thoroughly discussed the prosecution’s
case with counsel. Docket Entry No.22-1 at pg.1.
A

translator

aided

the

petitioner

during

both

his

plea

hearing, Docket Entry No.22-2 at pg.2, and sentencing hearing.
Criminal Action No.3:09-00186-6, Docket Entry No.521 at pg.2. The
Presentence Report was read to the petitioner in Spanish. Id. The
petitioner has not identified any questions arising from a language
barrier or in what way he was unable to participate in his defense.
This claim, therefore, also lacks merit.
The petitioner’s fifth claim is that counsel coerced him into
signing the Plea Agreement (Claim No.5).
In the Affidavit provided by petitioner’s counsel, he denies
having pressured or coerced the petitioner into pleading guilty.
Docket Entry No.22-3 at pg.2. The petitioner testified at the plea
hearing that no one put any pressure on him, psychological or
physical, to plead guilty. Docket Entry No.22-2 at pg.13. He stated
that he was pleading guilty “freely and voluntarily and of my own
accord.” Docket Entry No.22-1 at pg.4. Consequently, the petitioner
has failed to show that his guilty plea was in any way coerced by
counsel.
The petitioner’s final claim is that the cumulative effect of
his attorney’s errors served to deprive him of the effective

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assistance of counsel (Claim No.6). Having found no deficiencies in
counsel’s representation, this claim has no merit.
IV. Conclusion
Having considered the petitioner’s Motion, the Government’s
Answer and the expanded record, the Court can find no reason to
vacate, set aside or correct petitioner’s sentence. His motion,
therefore, lacks merit and will be denied.
An appropriate order will be entered.

____________________________
Aleta A. Trauger
United States District Judge

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