Prieto v. USA

Filing 34

ORDER OF DIMISSAL ADOPTING REPORT AND RECOMMENDATIONS for 32 Report and Recommendations. ORDERED that Movant's Objections (Dkt. 33) are OVERRULED. It is further ORDERED that the Motion to Vacate, Set Aside or Correct Sentence (Dkt. 1) is DISMISSED with prejudice. A certificate of appealability is DENIED. All motions by either party not previously ruled on are hereby DENIED. Signed by Judge Amos L. Mazzant, III on 3/28/2017. (daj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

ALEJANDRO CASILLAS PRIETO
v.
UNITED STATES OF AMERICA

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CIVIL ACTION NO. 4:14CV136
CRIMINAL NO. 4:10CR169(1)

ORDER OF DISMISSAL
The above-entitled and numbered civil action was referred to United States Magistrate
Judge Christine A. Nowak. The Report and Recommendation of the Magistrate Judge (Dkt. 32),
which contains proposed findings of fact and recommendations for the disposition of such action,
has been presented for consideration. The Magistrate Judge concluded that Prieto fails to carry his
burden under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052 (1984), and
accordingly, his ineffective assistance of counsel claim fails. The Report recommends that Prieto’s
Motion to Vacate, Set Aside, or Correct Sentence be denied and the case dismissed with prejudice.
Prieto has filed written Objections (Dkt. 33). Having made a de novo review of the Objections, the
Court concludes that the findings and conclusions of the Magistrate Judge are correct, and adopts
the same as the findings and conclusions of the Court.
In his Objections, Prieto maintains he is entitled to relief under § 2255 because he received
ineffective assistance of counsel during the plea bargaining process. He objects specifically to the
following four (4) of the Magistrate Judge’s findings of fact:
(1) the Government’s witnesses are more credible than Prieto (Dkt. 33 at 1-7);
(2) Prieto was advised in terms he could understand that, by refusing the Government’s
plea offers, he faced a life sentence should he lose at trial (id. at 7-8);
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(3) Prieto was given sufficient advice of the strengths and weaknesses of the Government’s
case to make an informed decision regarding whether to accept a plea bargain or proceed
to trial (id. at 8-9); and
(4) the record does not establish that Prieto would have accepted any of the Government’s
plea offers (id. at 9-10).
Each of the disputed findings of fact rests on the Magistrate Judge’s determination of the credibility
of the witnesses presented at the evidentiary hearing. Thus, at the heart of each of Prieto’s
objections is a contention that his testimony at the evidentiary hearing, his affidavit, and the
assertions in his pleadings are more credible than contrary assertions of fact by the Government’s
witnesses. Prieto asks the District Court to reconsider the evidence, reject the Magistrate Judge’s
credibility determination, and conclude he is more credible than the Government’s witnesses
and/or evidence.
Under 28 U.S.C. § 636(b)(1)(B), a district judge may “designate a magistrate to conduct
hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings
of fact and recommendations for the disposition, by a judge of the court,” of “dispositive” motions.
See United States v. Raddatz, 447 U.S. 667, 673, 100 S. Ct. 2406 (1980). The statute further
provides:
A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate. The judge may also receive
further evidence or recommit the matter to the magistrate with instructions.
28 U.S.C. § 636(b)(1)(C) (emphasis added). By its terms, § 636(b)(1)(C) grants the district court
broad discretion to accept or reject the magistrate’s findings; however, this discretion is not
unlimited.

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Under the terms of the statute, the district court may accept the credibility determination
of the magistrate after reviewing the record, without conducting an independent hearing. See
United States v. Scribner, 832 F.3d 252, 260 (5th Cir. 2016) (vacating the district court’s denial of
a § 2255 motion because the decision was based on implicit rejection of the magistrate’s credibility
finding without a hearing; explaining that, on remand, the district court was free to accept the
magistrate’s credibility determination without holding a hearing, or in the alternative, reject the
magistrate’s determination and come to its own conclusion after a hearing); Louis v. Blackburn,
630 F.2d 1105, 1109 (5th Cir. 1980) (“a district judge may accept a magistrate's findings
concerning credibility and not violate due process.”); see also United States v. Marshall, 609 F.2d
152, 155 (5th Cir. 1980) (“a district judge who reviews the record of the hearing before the
magistrate and adopts the magistrate's recommendations need not conduct a new hearing.”). In
contrast, a district court’s discretion to reject a finding of the magistrate is limited where:
(1) the finding is based on the credibility of the witnesses the magistrate heard, and
(2) the finding is dispositive of an application for post-conviction relief involving
the constitutional rights of a criminal defendant. In Blackburn [the Fifth Circuit]
held that in such circumstances the district judge cannot reject the finding without
personally hearing live testimony from the witnesses whose testimony is in issue.
Jordan v. Hargett, 34 F.3d 310, 313 (5th Cir. 1994), on reh'g en banc, 53 F.3d 94 (5th Cir. 1995);
see also Scribner, 832 F.3d at 259 (explaining that a district judge may not reject the credibility
finding of a magistrate judge without holding a new evidentiary hearing); Garcia v. Boldin, 691
F.2d 1172, 1179 n. 13 (“Where the district judge makes material credibility choices at variance
with those of the magistrate, the judge must, at least in certain cases, have a hearing at which he
or she personally hears the testimony.”); Blackburn, 630 F.2d at 1110 (“If the district judge doubts
the credibility determination of the magistrate, only by hearing the testimony himself does he have
an adequate basis on which to base his decision.”).

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Having made a de novo review of the record, including the transcript of the evidentiary
hearing, the Court is of the opinion that the Magistrate Judge’s credibility determination is correct.
It is apparent from the Report that the Magistrate Judge found much of Prieto’s testimony to be
implausible. In particular, the Magistrate Judge concluded Prieto’s credibility was undermined by
his claims that: (1) he chose to follow the legal advice of his attorney’s associate, even though it
directly contradicted the ardent advice of his attorney of record; (2) he did not understand the
meaning of “conspiracy” as charged in the Indictment, and no one explained it to him at any point
between his August 6, 2010, arrest and his July 11, 2012, sentencing; (3) a probation officer
misconstrued Prieto’s statement encouraging a codefendant to take responsibility for other,
uncharged, criminal activity as encouragement to take responsibility for Prieto’s part in the drug
conspiracy alleged in the Indictment. See Dkt. 32 at 13-14.
Instead of reconciling the inconsistent and implausible assertions in his own testimony,
Prieto’s Objections focus on the relative credibility of the Government’s witnesses, Rafael De la
Garza, Marston Alexander, and Special Agent Heriberto Quiroga. See Dkt. 33 at 6. Prieto points
to the length of De la Garza, Alexander, and Quiroga’s careers and the volume of criminal cases
they have each handled over the years as indicia that their recollection of specific events in this
case is unreliable. See id. Prieto further contends that, since this case represents his first and only
involvement in the criminal justice system, his memory of events is clearer. See id. However,
De la Garza, Alexander, and Quiroga specifically recalled occasions when one or more of them
advised Prieto of his sentencing exposure, and each testified to the use of several discrete Spanish
terms to render this advice. See Dkt. 31 at 52-53, 70, 77-78, 92. In light of De la Garza, Alexander,
and Quiroga’s unequivocal testimony regarding the events at issue in this case, Prieto’s argument
regarding deficiencies in the witnesses’ memories is pure speculation.

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Moreover, Prieto’s argument regarding the length of the Government witnesses’ careers in
criminal justice is further unavailing because, while De la Garza, Alexander, and Quiroga each
testified regarding their general practices and extensive experience related to interviewing and
advising Spanish-speaking criminal defendants, these same witnesses also testified regarding
specific advice given to Prieto during pretrial negotiations. See id. at 48-59, 60-62, 69-70, 73-74,
77-78, 83, 85-86. De la Garza, in particular, recalled specific details and events related to his
representation of Prieto, as well as the basis for his recollection and his general practices in similar
cases. De la Garza testified:
Q Can you describe for us what words in Spanish you used to tell this defendant
that he was facing a potential life sentence?
A Originally the term that I always use to tell someone that they are looking at a
life sentence is la vida, which means life. I would also tell people that you're going
to die in jail basically, because you're in there for life, la vida -Q Okay. Hold on. That you're going to die in jail?
A Correct.
Q How do you say -A I would say it, vas a morir en la carcel. In jail.
Q Basically -A Slang.
Q Can you spell that?
A Not at this time I can't.
Q Okay. So in Spanish you would say you're going to die in jail?
A Correct.
Q Now you said that that is generally how you would handle it in your practice.
Can you describe what you told Mr. Prieto?
A It would go from either la vida or vas a morir. Mostly it would be la vida, because
that's the way we always say life imprisonment. Then on one of the occasions, the
month prior to trial where we were going back and forth with plea offers between
Ernest Gonzalez and the defendant, I took -- I met the interpreter, Luis Garcia at
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the jail and I asked him to come in and translate for me because I wanted to make
sure there were no misunderstandings and that he understood that that particular
plea offer -- the government was agreeing to charge him with a new offense of alien
in possession of a firearm, number one. That he would have to waive jurisdiction
because the jurisdiction would have been in the Northern District, and that he was
looking at a two and a half year plea deal. Two and a half years. And that he was
still looking at life imprisonment if we were to proceed to trial. And if we came in
second place, then the likelihood is this judge would give him life sentence.
Q And you told him that in Spanish?
A No, I told him that in English using the interpreter that we had. And that is the
first time that I believe he ever heard us using the phrase car[]dena perpetua, which
is life imprisonment formally.
Q Okay. And before that, you say that you had used the more -- what you describe
I think as a slang term, la vida.
A Life.
Q Your life?
A Correct.
Q Or you're going to die in prison?
A Correct. Being more graphic, letting him know that he was not going to get out.
He was not going to parole out or anything like that in the federal system.
Q Okay. So he was told using the two slang terms, but then also once Mr. Garcia,
the court interpreter or translator assisted you, the more formal term, ca[]dena
perpetua.
A Correct.
Dkt. 31 at 57-59. On cross-examination, De la Garza clarified that he had a specific recollection
of the events of this case, which stood out to him because he “couldn't believe [Prieto] was rejecting
[the Government’s] plea offers.” Id. at 70.
The plea offers proffered to Prieto were admittedly favorable. However, ample evidence
in the record reflects that Prieto rejected such offers, not because he did not understand they were
favorable, or his potential sentence at trial; but, rather, because Prieto did not desire to be deported
or removed from the United States. The evidence reflects that Prieto “was in the country illegally

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and he had no standing to be in this country.” Dkt. 31 at 59-60. Alexander attested by Affidavit,
that “Mr. Prieto stated that he could not accept the [plea] offer because he did not want to be
deported.” Dkt. 19 at 2. De la Garza similarly testified that Prieto ignored his advice to enter a
guilty plea and proceeded to trial because Prieto feared deportation. Dkt. 31 at 59-60. De la Garza
explained at the hearing that Prieto was advised “if he was going to enter into a plea agreement,
that one of the consequences of signing a plea agreement would be deportation;” Prieto chose to
proceed to trial so that he could remain in the United States. Id. at 60. Against this backdrop, the
Court concludes that the Government witnesses’ testimony is bolstered, not undermined, by their
long involvement in the criminal justice system, particularly in light of their ability to state with
certainty how their conduct in Prieto’s case was reflective of their usual and habitual practice in
similar cases.
Finally, the Court finds it compelling that De la Garza, Alexander, and Quiroga each
testified that they personally communicated Prieto’s sentencing exposure to him on several distinct
occasions, using varied Spanish phrases, but nearly always employing the word “vida.” Prieto does
not challenge the Magistrate Judge’s finding that:
based on Prieto’s affidavit and testimony, his purported comprehension of Spanish
translations of “life imprisonment” hangs on the Spanish word “vida”—the literal
translation of the word “life.”
Dkt. 32 at 15. And the Magistrate Judge correctly observed:
[T]his case involved court interpreters, a defense team, a prosecuting attorney, and
an investigating federal agent who were all fluent in Spanish. Three (3) of these
individuals testified that they personally advised Prieto of his sentencing exposure
prior to trial; moreover, they stated they employed the term “vida,” which Prieto
admitted he would have understood as “life.” De la Garza stated he specifically
used the phrase “la vida” (“life”), along with “vas a morir en la carcel” (“you’re
going to die in jail”). Id. at 56-57 (emphasis added). Alexander testified that Prieto’s
sentencing exposure was conveyed as: “podrias pasar el resto de tu vida en la
carcel” (“you could spend the rest of your life in jail”). Id. at 78 (emphasis added).
Special Agent Quiroga testified that he used “cadena perpetua” at the first proffer
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session, but later advised Prieto that he faced “la vida en la carcel” (“life in jail”).
Id. at 92 (emphasis added).
Id. at 15-16.
Although Prieto testified he would have used the term “vida en prisión” to indicate life
imprisonment, De la Garza, Alexander, and Quiroga could not have heard his testimony, as the
witnesses were sequestered during Prieto’s examination. See Dkt. 31 at 9, 44-45, 80. Furthermore,
Prieto did not make this assertion in his pleadings or affidavit. Under the circumstances, the
Government’s witnesses had no opportunity to conform their testimony to Prieto’s purported
understanding before testifying. Prieto concedes, “[i]t may be that Alexander and Special Agent
Heriberto Quiroga had little to gain by corroborating some of De la Garza’s claims.” Dkt. 33 at 6.
On review of the record at the evidentiary hearing, the Court tends to agree.
In conclusion, the Magistrate Judge found much of Prieto’s testimony to be implausible.
Further, each of the Government’s witnesses not only testified to their usual and ordinary course
of interacting with Spanish-speaking clients, but recalled specific details and events concerning
Prieto’s case and their efforts to convince Prieto to plead guilty pursuant to the favorable plea
offers. It is clear that De la Garza advised Prieto he faced a life sentence if he proceeded to trial.
As for Prieto’s reasoning in declining the favorable plea offers, it is particularly telling that he
greatly feared deportation should he accept a guilty plea. Finally, each of the Government
witnesses personally communicated Prieto’s sentencing exposure to him.
In light of the foregoing, the Court accepts the Magistrate Judge’s finding that the
Government’s witnesses are more credible than Prieto. Prieto does not request a new evidentiary
hearing and the Court finds no reason to conduct an independent hearing in this case. Furthermore,
since each of Prieto’s Objections rests on his contention that the Magistrate Judge’s credibility
finding is erroneous, his Objections lack merit.
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.

It is therefore ORDERED that Movant’s Objections (Dkt. 33) are OVERRULED. It is
further ORDERED that the Motion to Vacate, Set Aside or Correct Sentence (Dkt. 1) is
DISMISSED with prejudice. A certificate of appealability is DENIED. All motions by either
party not previously ruled on are hereby DENIED.

SIGNED this 28th day of March, 2017.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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