Pineda v. USA
Filing
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MEMORANDUM OPINION AND ORDER. ORDERED the motion to vacate, set aside, or correct sentence is DENIED, and the case is DISMISSED with prejudice. A certificate of appealability is DENIED. All motions not previously ruled on are DENIED. Signed by District Judge Amos L. Mazzant, III on 9/18/2019. (daj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
OSCAR O. BARRERA PINEDA, #18940-078 §
§
VS.
§
§
UNITED STATES OF AMERICA
§
CIVIL ACTION NO. 4:16cv624
CRIMINAL ACTION NO. 4:09cr194(15)
MEMORANDUM OPINION AND ORDER
Pro se Movant Oscar Orlando Barrera Pineda filed a motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255, asserting violations concerning his Eastern District of
Texas, Sherman Division conviction. For the reasons stated below, and after due consideration, the
Court will deny Movant’s motion.
BACKGROUND
On October 19, 2012, a jury found Movant guilty of Count Two of his indictment,
manufacturing and distributing five kilograms or more of cocaine, and intending and knowing that
the cocaine will be unlawfully imported into the United States, in violation of 21 U.S.C. §§ 959,
960(b)(1). On February 24, 2014, the District Court’s sentence of two hundred ninety-two months’
imprisonment was entered. The United States Court of Appeals for the Fifth Circuit affirmed
Movant’s conviction and sentence on January 28, 2016. United States v. Rojas, 812 F.3d 382, 416
(5th Cir. 2016). The Fifth Circuit held that, under the protection principle, a country may enforce
criminal laws wherever, and against whomever, if the offense threatens the country’s security and
directly interferes with its governmental operations. Id. at 391-93. On June 6, 2016, the Supreme
Court denied Movant’s petition for writ of certiorari.
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The instant motion was filed on August 19, 2016. Movant asserts he is entitled to relief
because the Court lacked jurisdiction to try and sentence him on Count Two when the United States
violated the terms of the doctrine of specialty1 and the extradition agreement with Columbia.
Movant also contends counsel was ineffective in failing to raise the Court’s lack of jurisdiction,
violation of the doctrine of specialty, and defective indictment. Movant asserts counsel was also
ineffective for failing to request a minor role adjustment. The Government filed a response, claiming
Movant is not entitled to relief, to which Movant filed a reply. On June 1, 2018, the Court reduced
Movant’s sentence to two hundred thirty-five months, pursuant to 18 U.S.C. § 3582(c)(2).
STANDARD FOR FEDERAL HABEAS CORPUS PROCEEDINGS
As a preliminary matter, it should be noted that a § 2255 motion is “fundamentally different
from a direct appeal.” United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). A movant in a
§ 2255 proceeding may not bring a broad-based attack challenging the legality of the conviction.
The range of claims that may be raised in a § 2255 proceeding is narrow. A “distinction must be
drawn between constitutional or jurisdictional errors on the one hand, and mere errors of law on the
other.” United States v. Pierce, 959 F.2d 1297, 1300-1301 (5th Cir. 1992) (citations omitted). A
collateral attack is limited to alleging errors of “constitutional or jurisdictional magnitude.” United
States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). Conclusory allegations, which are unsupported
and unsupportable by anything else contained in the record, do not raise a constitutional issue in a
habeas proceeding. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983).
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The doctrine of specialty law is a principle of international law that is included in most extradition treaties,
whereby a person who is extradited to a country to stand trial for certain criminal offenses may be tried only for those
offenses, and not for any other non-extradition offenses. This doctrine allows a nation to require the requesting nation
to limit prosecution to declared offenses. See, e.g., United States v. LeBaron, 156 F.3d 621, 626 (5th Cir. 1998).
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PROCEDURAL BAR
It is well-settled that, absent countervailing equitable considerations, a § 2255 movant cannot
relitigate issues raised and decided on direct appeal. United States v. Rocha, 109 F.3d 225, 299 (5th
Cir. 1997); Withrow v. Williams, 507 U.S. 680 (1993). “[I]ssues raised and disposed of in a previous
appeal from an original judgment of conviction are [generally] not considered in § 2255 motions.”
United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986) (citing United States v. Jones, 614 F.2d
80, 82 (5th Cir. 1980)). It is also well settled that a collateral challenge may not take the place of a
direct appeal.
Shaid, 937 F.2d at 231. Accordingly, if Movant raised, or could have raised,
constitutional or jurisdictional issues on direct appeal, he may not raise them on collateral review
unless he shows either cause for his procedural default and actual prejudice resulting from the error,
or demonstrates that the alleged constitutional violation probably resulted in the conviction of one
who is actually innocent. Id. at 232.
Movant claims that the Court lacked jurisdiction to try and sentence him on Count Two.
Movant raised this claim on direct appeal, and the Fifth Circuit specifically held that 21 U.S.C. §§
959 and 960(b)(1) could be enforced wherever, and against whomever that threatens the country’s
security and directly interferes with its governmental operations. Because the issue was decided on
direct appeal, it is procedurally barred from collateral review. In his reply to the Government’s
response, Movant argues the Court lacked jurisdiction because Movant was convicted for events
occurring on December 8, 2008, of which Movant had already been convicted in Columbia. The
extradition order granted extradition from Columbia for the prosecution of Movant on Count Two,
except for acts occurring on December 8, 2008. The record shows that the jury made a special
finding as to Movant, affirming that his “guilty verdict was based on an act or acts committed on a
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date or dates other than December 8, 2008.” Criminal Action No. 4:09cr194(15) (Dkt. #898). This
issue is without merit.
Additionally, Movant complains about grand jury proceedings and a defective indictment.
Rule 12(b) of the Federal Rules of Criminal Procedure provides that objections or requests
concerning the grand jury proceedings or indictment must be raised prior to trial, or they are waived.
The necessary effect of the rule is to provide that a claim, once waived, may not later be resurrected,
either in the criminal proceedings or in federal habeas, in the absence of the showing of cause. Davis
v. United States, 411 U.S. 233, 242 (1973) (holding the waiver expressed in Rule 12(b) governs an
untimely claim of grand jury error, not only during the criminal proceeding, but also later on
collateral review). This issue was waived.
Movant also claims that his offense level for sentencing should be lowered because he played
only a minor role in the offense. Movant could have raised this issue on appeal. Moreover, the Fifth
Circuit has held that a district court’s technical application of the sentencing guidelines does not give
rise to constitutional issues. United States v. Towe, 26 F.3d 614, 616 (5th Cir. 1994).
Each of the issues could have been raised on appeal. Movant fails to show cause for his
procedural default and actual prejudice resulting from the error, or that he is actually innocent.
Shaid, 937 F.2d at 232.. These issues are procedurally barred, waived, or not cognizable on federal
habeas review.
INEFFECTIVE ASSISTANCE OF COUNSEL
Movant asserts he is entitled to relief based on ineffective assistance of counsel. A convicted
defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction
requires the defendant to show the performance was deficient and the deficient performance
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prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington, 466
U.S. 668, 687 (1984). “Failure to make the required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness claim.” Id. at 700. A movant who seeks to overturn
his conviction on the grounds of ineffective assistance of counsel must prove his entitlement to relief
by a preponderance of the evidence. James v. Cain, 56 F.3d 662, 667 (5th Cir. 1995). The standard
requires the reviewing court to give great deference to counsel’s performance, strongly presuming
counsel exercised reasonable professional judgment. Strickland, 466 U.S. at 690. The right to
counsel does not require errorless counsel; instead, a criminal defendant is entitled to reasonably
effective assistance. Boyd v. Estelle, 661 F.2d 388, 389 (5th Cir. 1981).
A movant “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
at 694. Movant must “affirmatively prove,” not just allege, prejudice. Id. at 693. If he fails to prove
the prejudice component, a court need not address the question of counsel's performance. Id. at 697.
Movant asserts counsel should have challenged the jurisdictional right of the United States
to try him for Count Two and the violation of the doctrine of specialty. As has already been
discussed, the Fifth Circuit upheld these issues, Rojas, 812 F.3d at 391-93, or they are procedurally
barred from collateral review. Furthermore, Movant fails to show that the indictment was defective
or that, had counsel timely objected, the result of the proceedings would have been different.
Strickland, 466 U.S. at 694.
Movant also claims counsel should also have requested a minor role adjustment. He fails,
however, to show he was “substantially less culpable than the average participant” to qualify as a
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minor participant. See United States v. Castro, 843 F.3d 608, 612-14 (5th Cir. 2016). A review of
the Presentence Report reveals that Movant possessed the following special characteristic(s)
affecting his offense level: he was a pilot, a co-pilot, a captain, a navigator, a flight officer, and any
other operations officer aboard an aircraft carrying a controlled substance during the offense.
Criminal Case No. 4:09cr194(15) (Dkt. #1136). Furthermore, the evidence at trial showed that
telephone calls, surveillance photographs, and videos documented Movant’s involvement with
known narcotics trafficker Carlos Eduardo Gaitan-Uribe, who was indicted in the conspiracy, but
died before trial. Gaitan “coordinated logistics by recruiting pilots, maintaining airplanes, securing
clandestine airstrips, and contacting corrupt air traffic controllers.” Rojas, 812 F.3d at 389. Evidence
showed that Movant piloted planes and that he coordinated the arrangements of other pilots that flew
drug planes to and from Columbia. Id. at 401-02. Expert testimony was provided explaining that the
routes Movant discussed were consistent with an organization attempting to import cocaine into the
United States. Id. at 402. Additionally, a codefendant pilot who knew Movant and who also flew
for Gaitan testified that Movant worked for Gaitan, that they were together frequently, and that he
had witnessed Movant flying drug-laden planes. Id. Accordingly, with Movant’s highly technical
skills, and the testimony provided, Movant fails to meet his burden of showing that, by a
preponderance of the evidence, he was substantially less culpable than the average participant in the
offense. Castro, 843 F.3d at 612-14. Therefore, counsel cannot be held to be ineffective for failing
to argue frivolous claims. Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990).
CONCLUSION
In sum, Movant fails to show cause for his procedural defaults and actual prejudice resulting
from the alleged errors. Shaid, 937 F.2d at 232. He fails to show that he is actually innocent. Id.
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Movant also fails to show that, but for counsel’s alleged deficient performance, the result of the
proceedings would have been different. Strickland, 466 U.S. at 694. Accordingly, the § 2255 motion
should be denied.
CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a proceeding under
§ 2255 “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(B). Although Movant has not yet filed a notice of appeal, it is respectfully recommended
that this court, nonetheless, address whether Movant would be entitled to a certificate of
appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua
sponte rule on a certificate of appealability because “the district court that denies a [movant] relief
is in the best position to determine whether the [movant] has made a substantial showing of a denial
of a constitutional right on the issues before the court. Further briefing and argument on the very
issues the court has just ruled on would be repetitious.”).
A certificate of appealability may issue only if a movant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the
requirement associated with a “substantial showing of the denial of a constitutional right” in Slack
v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected constitutional claims
on the merits, the movant must demonstrate “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429,
431 (5th Cir. 2003). When a district court denies a motion on procedural grounds without reaching
the underlying constitutional claim, a [certificate of appealability] should issue when the movant
shows, at least, that jurists of reason would find it debatable whether the motion states a valid claim
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of the denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling. Id.
In this case, reasonable jurists could not debate the denial of Movant’s § 2255 motion on
substantive or procedural grounds, nor find that the issues presented are adequate to deserve
encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37 (2003) (citing Slack,
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529 U.S. at 484). Accordingly, Movant is not entitled to a certificate of appealability.
It is therefore ORDERED the motion to vacate, set aside, or correct sentence is DENIED,
and the case is DISMISSED with prejudice. A certificate of appealability is DENIED. All motions
not previously ruled on are DENIED.
SIGNED this 18th day of September, 2019.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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